ASHOK MEHTA Vs. AMRIK SINGH

JUDGEMENT

(1.) THIS miscellaneous petition is directed against the order dated December 1, 1984, passed by the learned Additional Munsif and Judicial Magistrate (South), Udaipur, by which the learned Magistrate took the cognizance against the petitioners.

(2.) THE complainant Amrik Singh filed a complaint Under Sections 420 and 406, I.P.C. against the petitioners in the Court of the Additional Munsif and Judicial Magistrate (South), Udaipur, on November 12, 1984, alleging therein that in the month of January, 1979, the accused -respondents (who are petitioners in this case) came to his office, situated at 24 -C, Pratapnagar, and showed their intention to purchase the soapstone and it was agreed between them that the complainant will sent two trucks of soapstone to them, which will remain as his property on security with them and the accused, after selling the soap stone, will send the amount of the sale price to the complainant. In prusuance to this undertaking, the complainant, on January 25,1979, by bill No. 25 sent soapstone amounting to Rs. 5590/ -and vide bill No. 26 sent the soapstone of the value of Rs. 2860/ - to the accused petitioners. The complainant sent the soapstone valuing Rs. 8450/ - to the accused persons through Vijay Laxmi Transport Company, Udaipur. The Accused got this soapstone, sold the same and kept the amount of the soapstone with them. According to the complainant, the accused, thus, committed an offence punishable Under Sections 406 and 420, I.P.C. It was, therefore, prayed that the accused should be punished in accordance with law. The complainant, in support of his complaint, examined himself Under Section 200 Cr. P.C. and also examined Narain Singh and M.S. Sodhi Under Section 202, Cr. P.C. The learned Magistrate, after considering the complaint and the statements of PW 1 Roop Singh, PW 2 Narain Singh and PW 3 M.S. Sodhi, recorded Under Sections 200 and 202 Cr. P.C, took the cognizance against the accused petitioner, attended the Court and moved an application Under Section 245(2) Cr. P.C. submitting therein that on the same facts, the complainant filed a complaint in the same Court on earlier also, and in support of that complaint, he examined himself as well as Satpal Singh. The learned Additional Munsif and Judicial Magistrate, by his order dated July 22, 1980, after considering the complaint and the statements of Amrik Singh and Satpal Singh, refused to take cognizance against the accused petitioners. Dissatisifed with that order, refusing to take cognizance by the learned Additional Munsif and Judicial Magaistrate (South), Udaipur, the complainant preferred a revision petition before the learned Sessions Judge, Udaipur. That revision petition was transferred to the Court of the Additional Sessions Judge, Udaipur, who, by his order dated April 29, 1983, dismissed the revision petition filed by the complainant and refused to take cognizance against the accused. It was, also, mentioned in the application that a civil suit, after rejection of the complaint, was, also, filed by the complainant in the Court of the Civil Judge, Udaipur, on January 22,1982, for the recovery of this very amount and that suit is still pending. The accused, therefore, prayed that the proceeding should be dropped against the complainant as the complainant has suppressed these facts from this Court. This application was filed by the petitioners (accused) on December 1, 1985, but it has not yet been disposed of.

(3.) IT is contended on behalf of the accused petitioners that when earlier complaint, filed by the complainant on the same facts, was dismissed by the learned Additional Munsif and Judicial Magistrate (South), Udaipur on January 22, 1980, and the Court refused to take the cognizance and which order was affirmed by the learned Additional Sessions Judge, Udaipur, by his order dated April 29, 1983, in the revision petition, then the second complaint on the same grounds is not maintainable. It is further submitted that when for the recovery of the amount the petitioner has already taken recourse to a civil court by filing a civil suit on January 22, 1982, the recourse by way of filing a criminal proceeding should not have been allowed to be taken. The learned Counsel for the petitioners has, also, contended that the cognizance in the present case has been taken by the learned Additional Munsif and Judicial Magistrate Under Section 406, I.P.C., which is punishable for a term, which may extend to three years or with fine, or with both, and as the alleged offence, according to the complainant, was committed in the month of January 1979, and the cognizance was taken by the Court on December 1, 1984, it is clearly barred by time in view of the provisions of Section 468, Cr. P.C. as the time provided in such cases for taking the cognizance is of three years. The learned Counsel for the complainant and the learned Public Prosecutor, on the other hand, have supported the order passed by the learned Judicial Magistrate. It is contended on behalf of the non - petitioner complainant that the learned Magistrate has taken the cognizance, which is an exparte order and if the petitioners have got any grievance then they may agitate it before the trial Court and this Court should not interfere in its inherent jurisdiction Under Section 482, Cr. P.C. The learned Public Prosecutor has, also, supported the judgment passed by the learned Judicial Magistrate.