KAMLA KANT TRIVEDI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner who has been impleaded as one of the two accused in complaint Case No. 1224 (C)of 2001 is aggrieved by order dated 27-2-2007 passed in Criminal revision No. 1007 of 2006 by the learned presiding Judge, Fast Track Court No. V, patna whereby and whereunder he has refused to set aside the order dated 21-11-2006 passed by Sri Brajesh Pandey, Judicial magistrate, First Class, Patna, framing charge under Section 420, IPC after rejecting the petitioner's petition under Section 245, Cr. P. C.

(2.) ONE Parmeshwar Thakur, the complainant, impleaded as O. P. No. 2 herein, filed the aforesaid complaint stating inter alia that he had entered into an agreement for sale of land on 4-9-1999 with the petitioner through accused No. 2, namely, Sheo shanker Upadhyay, and that accused No. 2 demanded full consideration amount on the date of agreement for sale and in pursuance thereof he allegedly made a payment of Rs. 2,00,000/- in cash to accused No. 1 in the presence of accused No. 2. It is said that the petitioner and the other accused was added in the agreement for sale as vendee with his consent. It has further been alleged that on 12-6-2000, accused No. 2, Shiv shanker Upadhayay, got power of attorney from the petitioner No. 1 and on the basis of the said power of attorney he became the owner in place of accused No. 1. It is also alleged that notwithstanding several reminders the registration was avoided by O. P. No. 2 under various pretext and eventually a legal notice dated 30-9-2007 was sent in response whereto accused No. 2 denied all the allegations. The complainant has further alleged that he has come to know that neither of the accused have any possession over the land in question and by fraudulent means they had cheated the complainant of rs. 2,00,000/ -.

(3.) IT has been submitted on behalf of the petitioner that the said case had been pending for complainant's evidence and in between 16-6-2003 and 20-8-2005, the complainant was able to examine only one witness which was he himself and notwithstanding several directions of the Court to the complainant to bring his witnesses and also award of costs only one C. W. had been produced and it is worth noting that the complainant as witness has neither exhibited the complaint petition nor any other document in support of his case. Referring to the deposition of the complainant the learned counsel for the petitioner sought to submit that from a bare perusal thereof it would appear that no ingredient of Section 420, IPC had been made out and there appears to whisper of any allegation by the complainant that he had been cheated at the hands of the petitioner. There is also no allegation of assault against the petitioner. It would also appear that the complainant's evidence does not disclose the commission of any offence under Section 420, IPC and to hold a person guilty of cheating it was necessary to show that he had fraudulent or dishonest intention at the time of making of the promise.