N. M. Kasliwal, J. - (1.)This revision petition is directed against the order of learned Judicial Magistrate 1st class, Court No. 3, Ajmer passed on June 25, 1982.
(2.)Brief facts leading to this revision petition are that a complaint on April 10, 1978 was lodged by the non-petitioner, Ram Sahai, that he was engaged in the business of selling chillies and for that he had taken loan from Central Bank of India. He was regularly paying the instalments but committed default in the payment of last four monthly instalments. It was further alleged that about 10 days prior to the filing of the complaint, the accused along with three or four office associates came at the house of the complainant in the night at 10 p. m. The accused threatened the complainant to make the payment of instalments immediately otherwise his goods will be attached. The accused told that he was auditor of the Bank and on this the complainant paid Rs. 510.00 towards his instalments to the accused but the accused did not give any receipt inspite of the same being demanded by the complainant. As the complainant did not get any receipt from the Bank till April 5, 1978 as such he went to the Manager of the Bank and demanded receipt for the aforesaid amount. The Manager told that no such amount had been deposited in the Bank and the Bank was not responsible in this regard. The complainant then lodged an F. I. R. in the police station but the police submitted a final report on April 30, 1978. Matter was again investigated but this time also a final report was submitted. The complainant than filed an objection before the learned Magistrate against the Final Report and the learned Magistrate made an enquiry on the original complaint under Sec. 200 Cr. P. C. and recorded the statement of the complainant, Ram Sahai, Chhaganlal and Ram Prassad and thereafter took cognizance of the case under Sec. 420 I. P. C. on May 19, 1979. The accused was thereafter summoned and appeared in the Court on July 16, 1979. The accused filed an application on Dec. 4, 1981, that in the absence of an order under Sec. 203 Cr. P. C. no cognizance could have been taken and it was further submitted that the accused was a public servant and was acting in the discharge of his official duty and as such cognizance could not have been taken without sanction of the appointing authority. The learned Magistrate, by his order, dated June 25, 1982, rejected both the objections raised by the accused. The accused in these circumstances, aggrieved against the aforesaid order of the learned Magistrate, has filed this revision petition.
(3.)Mr. Dave, learned counsel for the accused, vehemently contended that no case is held established for offence under Sec. 420 I. P. C. in as much as the complainant himself has not said a single word that any fraud was on him at the time when he gave Rs. 510.00 to the accused as alleged by him. It was also submitted that it was highly unnatural that the accused being an auditor of the Bank would go at the house of the complainant at 10 p. m. and would threaten him for attaching his goods. It was also submitted that the complaint has been filed at the instigation of the staff of the Bank against whom, the petitioner was giving adverse reports in the capacity of an auditor of the Bank.