NARESH JAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THROUGH this misc. petition u/s. 482 Cr. P. C. the petitioners call in question the order dt. 3. 3. 97 of the learned Judicial Magistrate No. 4, Jodhpur whereby he took cognizance against the petitioners u/s. 406 and 420 IPC and issued warrants of arrest.

(2.) THE brief facts of the case are that on 21. 8. 96 Manoj Israni filed a complaint before the Magistrate with the allegations that the petitioners, who were engaged in the building construction work, approached him and told that they would construct `happy Home' wherein shops/counters would be constructed in the ground floor and the first floor and if he wanted he could also get shops/counters on payment of Rs. 50,000/-,100,000 or 1,50,000/- depending on the size, and the com- plainant, believing their statements to be true, paid a sum of Rs. 4,00,000/- to them by cheque no. 876303 for four counters, one for Rs. 50,000/-, second for Rs. 1,50,000/- and two counters for Rs. 1,00,000/- each. THE further allegation is that the petitioners accused got the cheque encashed on 19-9-95, and that when the construction work was over the complainant approached them to give possession of the counters to him but they refused to give possession of any of the counters and told him that they would neither return Rs. 4,00,000/- nor would give possession of any counter. It is stated in the complaint that the accused were having dishonest intention from the very beginning and they have cheated the complainant. This complaint was forwarded to the police u/s. 156 (3) Cr. P. C. where a case u/s. 420 and 406 IPC was registered. THE police after investigation gave final report. On receiving notice, the complainant filed a protest petition. THE learned Magistrate after going through the material on record passed the impugned order.

(3.) IT is significant to point out that it is not disputed by the petitioners that Manoj had paid Rs. 4 lacs to them by cheque. The defence of the accused is that the complainant had deposited this sum for the allotment of shares. This defence cannot be conisdered at this stage, moreson , when it is not shown that the complainant had ever applied in writing for the allotment of the shares. That apart, admittedly the petitioners have not taken this plea in their written statement filed in the civil court. They simply denied the allegations of the plaint, and did not come out with a case of adjusting the amount against the allotment of shares. Of course, in the reply to the application under O. 39 Rule 1 & 2 C. P. C. the petitioners had stated that the amount was deposited by the complainant for the allotment of shares, but the fact that this plea was not taken in the written statement filed by the petitioners, entitles the complainant to contend that the petitioners are not coming with clean hands and they have acted dishonestly.