NARAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS petition filed u/s 482 Cr.P.C. has been directed against the order dated 12.1.1991 passed by the learned Additional Sessions Judge, Bali, whereby he partly allowed the revision petition filed by accused persons and set aside the order dated 23.10.1990 of the learned Munsif and Judicial Magistrate, Desuri taking cognizance against five co-accused persons namely Gala, Bhera, Magga, Dheera and Balu u/s 420 IPC but confirmed the order for taking cognizance of the said offence against the accused petitioner Narain.

(2.) SUCCINCTLY stated the relevant facts are that non-petitioner No. 2 Udey Ram filed a criminal complaint on 11.7.1989 against the petitioner Narayan and his three brothers namely Bhera, Magga, Dheera in the Court of learned Judicial Magistrate, Desuri alleging that on 13.8.1984 the aforementioned accused persons entered into an agreement to sell the agricultural land bearing khasra No. 455/11 measuring 4 bighas situated in the outskirts of Desuri for an amount of Rs. 13,500 and out of that amount Rs. 5,000 were paid to them by his brother Chunnilal who was his agent. It was also agreed by the said accused persons that if the complainant did not want to purchase the said land then they shall return the advance amount alongwith interest. It was further alleged that the accused persons had informed Chunilal that the said land was situated adjacent to the agricultural land of the complainant bearing khasra No. 445/10. It was averred in the criminal complaint that since the complainant had some doubts about the said land he declined to purchase the same. Thereupon, Chunilal demanded the advance amount alongwith interest from the accused persons, who despite notice failed to return the said amount. Thereupon, Chunnilal, filed a civil suit in the court of Civil Judge, Bali against the accused persons, who in their written statement admitted to have executed the disputed agreement for sale in respect of the said land for an amount of Rs. 13,500. They also admitted that they had received an amount of Rs. 5,000 as advance. They averred that they were prepared to perform their part of the contract. It was also alleged in the criminal complaint that the accused persons despite the notice dated 29.3.1989 given by the Advocate of the complainant failed to show the land in question to the complainant, that land bearing Khasra No. 455/11 was not situated near his land bearing khasra No. 445/10 and that the accused persons, thus by cheating have taken an amount of Rs. 5,000, which they are not prepared to return and thus, have committed the offence punishable under Section 420 IPC. The learned Magistrate examined complainant Udey Ram under Section 200 Cr.P.C. and under Section 420 Cr.P.C. recorded the statements of PW2 Magaram and PW3 Chunilal and by his order dated 23.10.1990 took cognizance against the aforementioned four accused persons and two more persons namely Gala and Babu, who had executed the agreement for sale.

(3.) I have heard Sh. P.N. Mohnani learned counsel for the petitioner, Sh. C.R. Jakhar learned public prosecutor and Sh. J.M. Bhandari, learned counsel for the complainant Uday Ram at length and perused the record of lower Courts.