GOPAL KRISHAN VYAS, J. - (1.) IN this criminal miscellaneous petition filed under Section 482 Cr.P.C. the petitioners are challenging validity of cognizance taken by Additional Judicial Magistrate No.1 (North), Udaipur dated 30.10.2004.
(2.) THE petitioners have prayed for quashing the cognizance order passed by learned Additional Judicial Magistrate No.1 (North), Udaipur and proceedings of he case on the ground that it is gross abuse of the process of Court. Complainants Kanhaiya Lal, Smt. Manju and Bhupesh Kumawat filed a complaint in the Court of Addl. Judicial Magistrate No.1 (North), Udaipur in which, it is stated that they purchased half of the total land measuring 3 Bigha 11 Biswa comprising in Khasra No. 1557, 1559, 1580, 1581, 1582, 1583 and 1588/58 of village Sukher (Udaipur district). Said land was belonging to Mannalal Bheel and accused Ishwarlal was power of attorney of Mannalal Bheel. As per allegations, the land was purchased by the complainants at the rate of Rs. 3,50,000/- per bighas and they paid total advance amount of consideration being Rs. 6,21,000/- under agreement dated 19.12.2003 in which petitioner No.1 Pramod Kumar Chhaparwal was one of the witnesses. Later on, after executing the sale agreement when the complainants approached the accused petitioners and requested them to have the land mutated in their favour the accused refused to do so, therefore, they have committed offence under Section 406 and 420 read with Section 120-B I.P.C. THE above complaint was filed under Section 156(3), Cr.P.C. in the Court of Addl. Judicial Magistrate No.1 (North), Udaipur from where the complaint was sent to Police Station, Dhanmandi and police registered FIR No. 71/2004 against the petitioners. As per the petitioners, in the investigation, statements of Kanhaiya Lal Kumawat, Manju Kumawat, Bhupesh Kumawat, Gopal Mehta, Devilal and Manalal Bheel were recorded under Section 161 Cr.P.C. and sale-agreement dated 19.12.2003 was produced before the investigating officer. After completion of the investigation, the police filed charge-sheet No.1 111/2004 in the Court of Addl. Judicial Magistrate No.1 (North), Udaipur. Said Court after registering criminal case No. 824/2004 proceeded to take cognizance of the offence under Sections 406 and 420 I.P.C. vide order dated 30.10.2004 against the petitioners.
(3.) LEARNED counsel for the petitioners submits that in the investigation as per statement of Mannalal Bheel who executed power of Attorney in favour of Ishwarlal categorically stated that Ishwarlal is his power of attorney and said power of attorney was once expired but it was renewed, therefore, even if entire evidence is taken into consideration no offence under Sections 406 and 420 IPC is made out. Petitioner No.1 is said to be witness of sale-agreement executed by Ishwarlal and Ishwarlal was holding valid power of attorney in his favour. The dispute in the instant case is of civil nature therefore whole proceedings including cognizance taken against the petitioners deserves to be quashed. LEARNED counsel for the petitioner submits that in all, three complaints were filed, one after another, by the complainants No.2, 3 and 4 at different police stations of Udaipur regarding same civil transactions about selling of the land within the agricultural boundary of village Suker. Instant FIR No. 71 dated 24.5.2004 was filed at Police Station Dhanmandi. Another FIR bearing No. 58 dated 11.5.2004 under Sections was filed for offences under Sections 467, 471, 406 and 420/34 I.P.C. at Police Station Dhanmandi and FIR No. 179 dated 7.5.2004 was filed at Police Station Ambamata under Sections 420 and 406, I.P.C.;