R.S. Chauhan, J. - (1.) AGGRIEVED by the order dated 15 -6 -2009, passed by the learned Additional Sessions Judge, Gangapur City, whereby the learned Judge has quashed and set aside the cognizance order dated 12 -92007, passed by learned Judicial Magistrate, Bamanwas in Criminal Case No. 135/2007, the petitioner has approached this Court.
(2.) ACCORDING to the petitioner, he is a registered owner of a Tractor No. RJ -25/RA -0768, bearing Chasis No. 91914141370, and Engine No. 73781. According to him, the respondent No. 1 Prem @ Premraj forcibly took away the tractor and refused to return the said tractor to the petitioner. The petitioner lodged FIR, FIR No. 268/2006, with the Police Station Bamanwas for the offences under Sections 379 and 341 IPC. However, after a thorough investigation, the police submitted a negative final report before the Judicial Magistrate. The petitioner challenged the final report, by filing protest petition. Learned Magistrate recorded the statements of the petitioner under Section 200 Cr.P.C., and statements of his witnesses under Section 202 Cr.P.C. Subsequently, vide order dated 12 -9 -2007, learned Magistrate took cognizance for the offences under Sections 379 and 341 IPC. The accused respondent filed revision petition before the learned Additional Sessions Judge, Gangapur City. The Revisional Court vide order dated 15 -6 -2009, accepted the revision petition and quashed and set aside the cognizance order dated 12 -9 -2007. Hence, this petition before this Court. Mr. Narendra Singh Dhakad, the learned Counsel for the petitioner, has contended that the police submitted the negative final report, ostensibly on the ground that the dispute between the parties was of repayment of loan amount. Hence, the dispute was of a civil nature. Moreover, according to some of the witnesses, Prem had not taken away the tractor by force. But, in fact, the said tractor was returned by petitioner's brother, as the petitioner's brother owed a debt to Prem. Learned Counsel for the petitioner, has pleaded that the learned Magistrate had not only noticed the negative final report given by the police, but had also discussed the same. Therefore, the learned Magistrate had taken cognizance after due application of judicious mind. Moreover, at the time of taking cognizance, the Magistrate is duty bound to see whether a prima facie case exist or not. After all, cognizance is taken of the offence and not of the accused. Since, according to statements of the petitioner and his witnesses, prima facie case did exist, the learned Magistrate was justified in taking cognizance. Lastly, the possible defence of the accused, that the tractor was returned by petitioner's brother in lieu of payment of debt, cannot be considered at the stage of taking of cognizance. Hence, the said possible defence was validly rejected by the learned Magistrate. According to learned Counsel, the learned Judge has erred in observing that the Magistrate has not given any reason for disagreeing with the negative final report. Learned Judge has also ignored the legal position that the Magistrate is required to merely see the existence of prima facie case at the stage of cognizance. Lastly, the learned Judge has considered the possible defence of the accused respondent, which he could not have done so, while exercising revisional power.
(3.) ON the other hand, Mr. Raghunandan Lal Dixit, the learned Counsel for the accused respondent, has strenuously argued that a bare perusal of the facts narrated by the complainant himself clearly reveals that petitioner's brother had taken a loan from Prem, which he was unable to repay. Thus, the dispute is about recovery of money. However, in order to pressurize the accused respondent, from desisting from demanding repayment of loan, a false case has been fabricated against him. Secondly, the learned Magistrate has not given cogent reasons for disagreeing with the negative final report. Hence, the learned Judge was justified in setting aside the cognizance order.;