- (1.) THE petitioner-complainant is aggrieved by the judgment dated 30.10.2001, passed by the Additional District and Sessions Judge No.3, Ajmer, whereby the learned Judge has quashed and set aside the order dated 16.07.2001, passed by the Additional Chief Judicial Magistrate, Nasirabad, wherein the learned Magistrate had convicted the accused-respondent, Sevak Ram, for offences under Sections 406 and 420 IPC.
(2.) BRIEFLY the facts of the case are that on 03.10.1998, the petitioner-complainant, Mohammad Shareef, lodged a report at Police Station Nasirabad wherein he stated that the accused-respondent, Sevak Ram agreed to sell his house No.2325 situated at Badi Mandi, Nasirabad for a consideration of Rs.15,000/-. Out of the consideration amount, the complainant had already paid Rs.10,000/- to Sevak Ram; it was agreed that the remaining of Rs.5,000/- would be paid at the time of registration of the sale deed. He further stated that after coming to know that Sevak Ram promised to sell the same house to one Mohammad Ismail, his intention to cheat the complaint was clear. Thus, the complainant sent a notice on 05.09.1998 to Sevak Ram. But even then, the registry was not executed by him. The police registered a case for offences under Sections 406 and 420 IPC. After a thorough investigation, the police submitted the charge-sheet for the above mentioned offences. In order to buttress its case, the prosecution examined three witnesses and submitted three documents. In defence, the accused-respondent examined one Abdul Saleem as his witness. After going through the oral and documentary evidence, vide order dated 16.07.2001, the learned trial court convicted the accused-respondent for the above mentioned offences, but also gave him the benefit of probation. Aggrieved by the said order, the accused-respondent filed an appeal before the appellate court. However, vide judgment dated 30.10.2001, the appellate court while setting aside the order dated 16.07.2001, acquitted the accused-respondent for the above mentioned offences. Hence, this petition before this Court. Mr. Ravindra S. Chaudhary, the learned counsel for the petitioner, has vehemently contended that there was ample evidence to prove the case of the prosecution beyond a reasonable doubt. However, the learned Judge has failed to properly appreciate the evidence and has erred in setting aside the conviction and in acquitting the accused-respondent. On the other hand, Ms. Alka Bhatnagar, the learned Public Prosecutor, has strenuously contended that the reasons assigned by the learned Judge are borne out by the evidence itself. Therefore, she has supported impugned judgment. Heard the learned counsel for the parties and perused the impugned judgment. A bare perusal of the impugned judgment clearly reveals that the learned Judge had discovered that although the petitioner claims that agreement to sell was entered on 25.11.1995, yet the stamp paper was bought on 26.11.1995. Therefore, obviously an agreement to sell could not have been entered on a stamp paper a day prior to the buying of the stamp paper. Thus, the learned Judge was certainly justified in concluding that the authenticity of the agreement to sell is doubtful.
(3.) THE learned Judge has also noticed the fact that according to legal notice served by the petitioner upon the accused-respondent, the petitioner had himself given out that he will pay the remaining amount of Rs.5,000/- to the accused-respondent to ensure that the registry of the house is done in his favour. However, there is no evidence to show that the said amount was ever offered by the petitioner to the accused-respondent. The learned Judge has also noticed that despite the fact that the registry had to be done by 1996, the FIR was not lodged till 1998. The inordinate delay of two years by the petitioner has not been explained. In catena of cases, the Honourable Supreme Court has also observed that mere breach of contract does not amount to an offence under Section 420 IPC. Hence, the learned Judge has given cogent reasons for acquitting the accused-respondent. ;