RATANA RAM AND ANR. Vs. STATE AND ANR.

JUDGEMENT

(1.) By way of instant petition under section 482 of the Code of Criminal Procedure the petitioners have challenged the order of the Judicial Magistrate, First Class Sri Dungargarh dated 8.6.2000 whereby he has taken cognizance against them for offence under sections 420 and 406 Indian Penal Code.

(2.) Briefly stated the facts of the case are that on 27.7.1993 the second respondent-Bhagwana Ram filed a complaint in the Court of Munsif and Judicial Magistrate, Dungargarh stating inter alia that he runs a shop of silver and gold ornaments in Village Bana, Tehsil Dungargarh, District, Churu. The accused-petitioners visited his shop on 9.4.1993. They expressed their desire to purchase certain ornaments, which they required on the occasion of Muklava of their son. He displayed certain ornaments before them. They took certain ornaments with them for selection by the ladies at their house. On 12.4.1993 they again visited the shop and reported that the ornaments have been selected by the ladies and the payment shall be made within 2-3 days. On 26.7.1993 refused to return the ornaments. They also refused to make the cost of the ornaments. The learned Magistrate sent the complaint for investigation at Police Station, Dungargarh under section 156(3) Code Criminal Procedure After investigation the police forwarded a final report to the Court of Judicial Magistrate First Class, Dungargarh, which was accepted on1.11.1994. The complainant challenged the said order, which was set aside on 9.1.1996 by the Additional Sessions Judge, Ratangarh. The order was challenged by the petitioners before this Court by way of Misc. Petition. This Court by order dated 29.4.1999 set aside the order of the Additional Sessions Judge and directed the Court of Judicial Magistrate, Dungargarh to pass fresh order after hearing the parties. Thus, by the impugned order the learned Magistrate after recording the statements of witnesses under section 200 Code Criminal Procedure has taken cognizance against the petitioners for offence under sections 406 and 420 Indian Penal Code.

(3.) It is contended by Mr. Vijay Bishnoi learned counsel for the petitioners that the entire dispute is of civil nature. It is also submitted that on 15.5.1995 the complainant filed a civil suit before the Additional Sessions Judge, Ratangarh regarding the same dispute. The suit has also been amended on 15.1.1996. It is submitted that the suit pertains to recovery of Rs. 38,000.00. It is admitted in the said suit that a part of the amount has been paid by the petitioners. It is further submitted that perusal of the complaint does not disclose intentional deception on the part of the petitioners. Reliance has been placed on a decision of the Apex Court in M/s. National Heavy Engineering Cooperative Ltd. Vs. M/s. Kind Builders, in JT 2000(3) SC page 604 . On the other hand it is submitted by Mr. Suresh Kumbhat learned counsel for the respondent that merely because a civil claim is also maintainable, it does not mean that criminal complaint cannot be maintainable. He has placed reliance on a decision of the Apex Court in Lalmuni Devi Vs. State of Bihar and Ors. reported in 2001 AIR SCW 2504 . It is further submitted that this Court in exercise of powers under section 482 Code Criminal Procedure would not be justified in shifting evidence as was powers exercised by Court in trial and interfering with the order of taking cognizance.