AJENDRA AGARWAL S/O SHRI G.R.AGARWAL THROUGH G.R. AGARWAL BUILDERS AND DEVELOPERS LIMITED, OFFICE AT AA CLASS CONTRACTOR, PUBLIC WORKS DEPARTMENTS, DEFENCE LAB ROAD, RATANADA, JODHPUR Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) Accused-petitioner has laid this misc. petition under Sec. 482 Crimial P.C. to assail impugned order dated 06.01.2012 passed by District and Sessions Judge, Jodhpur Metropolitan (for short, 'learned Court below'), whereby learned Court below has dismissed revision petition of the petitioner against order dated 30.09.2010 passed by Additional Chief Metropolitan Magistrate No.4, Jodhpur Metropolitan (for short, 'learned trial Court').

(2.) The bare necessary facts for the purpose of this petition are that respondent-complainant lodged an FIR against the petitioner and one Kharta Ram attributing offences punishable under Sections 420 and 120-B IPC. As per the version of complainant there existed an agreement between accused and the complainant and pursuant thereto, complainant was asked to carry out certain works which were entrusted to the accused by Public Works Department and despite completing work, the accused did not pay the requisite amount which he has incurred in carrying out the said work. The Police proceeded with the investigation and pursuant to FIR No.416/2004, after thorough investigation, submitted negative final report before the learned trial Court. Learned trial Court, thereafter, considered the negative final report and without resorting to Sections 200 & 202 Crimial P.C., taking into account the materials which were collected during investigation, proceeded to take cognizance against the accused petitioner and Kharta Ram. Being aggrieved by the said order, petitioner approached the learned Court below and the learned Court below made endeavour to examine the correctness, legality and propriety of the order of cognizance passed by the learned trial Court. Learned Court below, after recording its satisfaction about the propriety of the order of cognizance, rejected the revision petition by the order impugned.

(3.) Learned counsel for the petitioner, Mr. Vishal Sharma, has argued that while it is true that a Magistrate is empowered to discard negative final report submitted by the Police but then for discarding negative final report, a Magistrate is expected to record cogent reasons but in the instant case, no such reasons are forthcoming from the order passed by the learned trial Court. Learned counsel further submits that the learned Court below has not made any endeavour to examine that aspect of the matter and therefore, the said order is also vitiated in law. Mr.Sharma has strenuously urged that there was no semblance of proof and any privity of contract between the petitioner and complainant and that has unearthed during investigation also but that aspect was completely eschewed by both the Courts below. Lastly, Mr.Sharma has urged that assuming it without admitting the same that there was some dispute between the rival parties then too it was pure and simple civil dispute which cannot be given colour of a criminal case.