ASHRAF ALI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The present petition has been filed by the petitionercomplainant aggrieved from the order dtd. 17/3/2017 passed by learned Additional Sessions Judge, Parbatsar, Nagaur in Criminal Revision No.64/2015 titled as Abdul Salam Vs. State of Raj. & Anr., whereby the revision petition preferred by respondent no. 2 was allowed and the order taking cognizance dtd. 18/5/2015 passed by learned Judicial Magistrate, Parbatsar, District Nagaur was set aside.

(2.) In nutshell, the facts of the case in hand are that on 27/4/2013, present petitioner filed a criminal complaint alleging inter-alia that he borrowed Rs.2.00 lac from respondent no. 2 and for convenience of payment, 20 post dated blank cheque bearing his signatures were handed over to respondent No.2. Before proceeding to Haj, he repaid the entire loan amount to respondent No.2 but he did not returned the said blank cheques to him on the ground that as same were not traceable so he would return after his returning from pilgrimage of haj. After return from haj, when petitioner demanded those 20 unused cheques, in response thereto, the respondent replied that said cheques were destroyed by him. Thereafter, on 20/3/2013, petitioner received a notice for demand of Rs.10.00 lacs from respondent in lieu of dishonored cheque, which was one of those 20 cheques. Alleging misuse of cheque by respondent No.2, the petitioner filed a criminal complaint and on the basis an FIR No.27/2013 for the offences under Ss. 420 and 120B of the IPC was registered at Police Station Peelwa. After investigation, a Final Closure Report was submitted by the police. On 23/3/2015, learned Additional Chief Judicial Magistrate, Parbatsar proceeded to examine the complainant-petitioner under Sec. 200 Cr.P.C. other witnesses under Sec. 202 Cr.P.C. and thereafter on 18/5/2015 passed the order taking cognizance. Aggrieved from order taking cognizance and issuance of arrest warrant respondent No.2, preferred a revision petition before learned Additional Sessions Judge, Parbatsar, (hereinafter referred to as 'the revisional Court'), which allowed the revision petition and order taking cognizance was set aside.

(3.) Learned counsel for the petitioner would submitted that the evidence on record established that cheques were not returned on demand by respondent No.2-complainant and thereafter, he had misused one of such cheque by submitting it for encashment before Bank. He would further submitted that after return of cheque as unpaid, only from receipt of notice dtd. 20/3/2015, present petitioner came to know about the misuse of cheque by respondent No.2. He would further submitted that respondent No.2 has deliberately & fraudulently misused the cheque to extort a payment of Rs.10.00 lacs from the petitioner. He would further submitted that the revisional Court has exceeded its jurisdiction, as the material available on record of learned trial Court was sufficient to proceed against respondent No.2. He would submitted that authenticity of evidence can be decided only during trial but without examining the truthfulness of evidence, as submitted by present petitioner, respondent No.2 was exonerated in short cut method. He would submitted that it is mandatory for every Muslim to repay debt before proceeding to Haj and religiously present petitioner had repaid debt before proceeding to Haj. Thus, bonafide of present petitioner cannot be doubted in any manner. 3. He would submitted that as a result of order passed by revisional Court, petitioner have to fulfill illegal demands of respondent No.2 and it is a fit case wherein the order passed by revisional Court have to be set aside. He would submitted that a direction may be issued to the trial Court for early disposal of the case.