M. C. JAIN, J. - (1.) THIS revision petition is directed against the order of the Chief Judicial Magistrate, Sirohi, dated 20th November, 1981, whereby the petitioner was ordered to be charged for the offences under sections 420 and 120, I. P. C.
(2.) A few material facts may, briefly, be noted for the purpose of appreciating the controversy in question. On behalf of various cultivators of village Noon a typed report was submitted by two cultivators, namely, Soma and Chhoga on 14. 4. 1979 to the S. H. O. , Police Station, Kalandri. The report was to the effect that the three accused persons, namely, Banshilal, Narain and Vardha, representing to the cultivators, that they are not in a position to visit the Mand and effect the sale of their produce, so they may deliver their produce to them and they will be paid their price. The cultivators believing their representation to be true, delivered their produce to them. The three accused persons then loaded the produce of the cultivators on the night of 9. 4. 1979 and directed their 'munim' to issue receipts in respect of the amount which is due from them. Their produce was taken away in the truck. In the morning the cultivators found the godowns of the accused persons locked, whereby suspicion arose which led to the search as to where the goods have been taken away. They visited Sumerpur Mandi and came to know that the goods were unloaded at the shop of Messrs. Motilal Chhaganlal and that the accused persons have also taken some money from the firm. According to the cultivators, the price of the produce was about Rs. 40,000/ -. On this report a case under Sec. 420 and 406, I. P. C. , was registered and investigation was undertaken. After completion of the investigation, charge-sheet was presented against the aforesaid three accused persons and against Naharsingh as well. On 10. 1. 1980 an application was moved on behalf of the complainants for taking cognizance against the present petitioner. Thereupon, the learned Magistrate took cognizance against the present petitioner for the offences under Secs. 420 and 120b, I. P. C. , on 30th January, 1980. After hearing the arguments on charge, the learned Chief Judicial Magistrate, Sirohi, by the impugned order found that prima facie a case under sections 420 and 120, I. P. C. , is made against the present petitioner. Aggrieved against this order, the present revision petition has been filed. I have heard Shri R. R. Nagori, learned counsel for the petitioner and Dr. S. S. Bhandawat, learned Public Prosecutor, for the State. The question that arises for consideration is as to whether there is any material on record to charge the present petitioner for the offences under sections 420 and 120, I. P. C. The learned Chief Judicial Magistrate, in his impugned order, did not point out as to what evidence is there against the petitioner, prima facie, to proceed against him for the said offences. He did not deal with the contention advanced on behalf of the petitioner for his discharge and simply contended to mention that he agrees with the arguments of the Assistant Public Prosecutor first and that he does not consider proper to order the discharge of any of the five accused persons. He did not deal with the case of Chhagan Lal separately As his case stands on a different footings, he ought to have considered the essential facts appearing on the record against Chhagan Lal and to see whether those facts in any way constitute any offence. Ave been taken through the first information report and the statements of the relevant witnesses, particularly, the statements of Shesaram and the petitioner, and the documents submitted by him to the investigating officer. In the first information report what is mentioned by the complainant, is that when they visited Sumerpur Mandi, they came to know that the three accused persons hAve kept the produce with the firm Messrs. Motilal Chhagan Lal and hAve taken some money from the firm. Beyond this, nothing has been stated in the first information report. What has further come during investigation, is that a sum of Rs. 10,030/- was paid by the petitioner to the accused Banshi Lal Khatik against the goods on the night of 9-4-1979 and thereafter on 11-4-1979 a further sum of Rs. 15,000/-was paid to Banshi Lal towards the goods. Entry in the 'rokar Bahi' of the petitioner's firm also indicate that towards the produce of 'sarsun' and 'jeera' these sums were paid to Banshilal. The stock register, maintained by the petitioner's firm, also contained an entry regarding 65 bags of 'sarsun' and the name of the vendor given in the stock register is of Banshi Lal of Mohabat Nagar. There are two more documents submitted by the petitioner dated 11-4-1979 having the title "vikraya Parchi'/ "amanat Patti". These two documents contain the name of Banshi Lal Nathaji as the seller of the goods. According to the version given by Chhagan Lal, Banshilal came to him and informed him that he will bring the goods, for which he demanded the empty bags. Thereupon, he delivered empty bags to Narain Lal and Banshi Lal and it was not revealed to him that from where the goods would be brought and it was on the night of 9. 4. 1979 that truck was brought at about 8 or 9. 00 p. m. , in the Mandi, which was got unloaded. I hAve not been referred to any evidence on the basis of which it can be said that the petitioner conspired with the said accused persons to bring goods valuing more amount and a lesser amount may be paid in respect of the goods so brought. A suggestion was made in an application on behalf of the complainants that on 10. 1. 1980 the petitioner took goods valuing Rs. 40,000/- for a sum of Rs. 25,000/- only and thereby the petitioner facilitated the commission of offence and that it was the petitioner, who informed the complainants that the goods are lying as "amanat", and it was also informed by them that the accused persons hAve brought the goods by commission of theft, so no money be paid to them The first information report is completely silent on these facts. No mention is made in the first information report that any such thing was said by the complainants to the petitioner. From the facts that the truck reached the Mandi in the night of 9. 4. 1979, that it was unloaded at the petitioner's shop and that in the night a sum of Rs. 10,000/- was paid, do not necessarily raise an inference that there was any complicity of the petitioner with the accused persons. In order to give rise to the offence under Sec. 420, I. P. C. , the first essential ingredient is that there should be dishonest and fraudulent intention on the part of the petitioner. There is no material that the goods valuing Rs. 40,000/- were accepted only for a sum of Rs. 25,000/ -. A sum of Rs 25,100/-was only paid towards the goods. It was in the nature of the regular transaction of sale and purchase of commodity or in the nature of the regular transaction of selling commodity in commission agency, though there is no specific and clear case as to what is the nature of transaction, of a sale one or whether the transaction is of the nature that the goods were to be sold in the commission agency of the petitioner, but it is amply clear from the documents that the petitioner received the goods and paid certain amount towards the goods. The entry in the books of accounts as well as in the two "parchis", only indicate that the petitioner entered into the transaction in a regular and ordinary manner and there was no dishonest or fraudulent intention on his part. Neither it can be said that he concealed any thing in order to facilitate the commission of offence, or made any wrong or false representation. There is hardly any material on record to prima facie charge the petitioner of the offences under sections 420 and 120, I. P. C. As already stated above, I do not find any dishonest or fraudulent intention on the part of the petitioner, nor I find that any voluntary concealment or any design to facilitate the commission of any offence. Thus, there are no sufficient grounds to proceed against the petitioner for the offences under sections 420 and 120, I. P. C.
(3.) IN the result, this revision is allowed. The impugned order against the petitioner is quashed and set aside and the petitioner is discharged. .;