ABBAS ALI Vs. STATE OF RAJASTHAN & ORS

JUDGEMENT

(1.) The instant misc. petition has been filed on behalf of the petitioner challenging the order dated 17.02.2007 passed by the learned Judicial Magistrate, First Class, Churu rejecting the complaint filed by the petitioner against the respondents Nos.2 & 3 and against the order dated 13.02.2008 passed by the learned Sessions Judge, Churu affirming the order of the learned Magistrate in revision.

(2.) Briefly stated the facts necessary for the disposal of the misc. petition are that the petitioner filed a complaint against the respondents Nos.2 and 3 with the allegations that the complainant and the accused respondents were close relatives and on good terms with each other. It is alleged that the accused respondents with the objective of cheating the petitioner showed him a land situated at their village projecting the same to be under the ownership of the accused and took a cheque of rupees one lac as advance from the complainant's son Mohd. Sharif on 24.10.2003. A receipt was also executed and the same was given to the son of the complainant. It was also averred that the accused did not have any land at the relevant time and by inducing the complainant's son, he was made to sign some blank stamps and papers which the accused were trying to misuse. It was also stated that when the complainant came to know about the cheating committed by the accused, he instructed his bank to stop payment of cheque. Upon which, the respondents herein filed a complaint under Section 138 of the N.I. Act against the petitioner's son without there being any responsibility or the liability of the complainant's son in relation to the cheque in question. It was also stated in the complaint that the respondents filed a false FIR against the complainant's son and the complainant's son had to loose his job because of the false case filed by the respondents against him. The complaint with the aforesaid averments was filed in the court of the learned Judicial Magistrate, First Class, Churu on 30.08.2005. The complaint was proceeded under Sections 200 and 202 Cr.P.C. and an enquiry was also got conducted through the police. On the conclusion of the enquiry, the learned Magistrate proceeded to reject the complaint filed by the petitioner holding that the complainant's case regarding the accused having fraudulently induced his son to give the cheque was absolutely concocted. It was also opined by the learned Magistrate that it is unbelievable that the complainant would have given the cheque without ascertaining the status of the land so as to enter into an agreement to purchase the land without ascertaining the right of the seller to sell the same, even though, the land was located just in front of the complainant's house. It was held that the complainant and his son should have ascertained about the title of the seller on the principle of buyer beware before entering into the agreement. Learned Magistrate also found that the proceedings against the complainant's son under Section 138 of the N.I. Act in relation to the disputed cheque was pending in the competent court and that in another FIR filed against the complainant's son for cheating various persons on the promise to send them abroad, the police had charge-sheeted him and that case was already going on. After arriving at the aforesaid conclusions, the learned Magistrate by his order dated 17.02.2007 proceeded to reject the complaint filed by the petitioner, whereupon, the petitioner challenged the order of rejection of the complaint by way of filing the revision and the learned revisional court too has rejected the complaint by concurring with the finding of the learned Magistrate. Hence this misc. petition has been filed on behalf of the petitioner seeking direction that the respondents Nos.2 and 3 should be prosecuted for offences under Sections 420 and 120-B IPC.

(3.) Learned counsel Mr.Vishwajeet Joshi appearing on behalf of the petitioner submits that at the stage of taking cognizance, only the existence of a prima facie case was to be seen by the learned Magistrate and no roving enquiry was permissible. It is submitted that ex facie the allegations of the complainant were established and therefore the learned Magistrate committed grave error in rejecting the complaint and that the learned revisional court has also erred in upholding the order of the learned Magistrate.