J. R. CHOPRA, J. - (1.) THIS revision petition has been filed against the order of the learned Chief Judicial Magistrate, Churu, dated 12-1-1988, whereby the learned Chief Judicial Magistrate has dismissed the application of the accused-petitioner for the amendment of the charge.
(2.) IT is one of those unfortunate cases where 14 persons were deputed to deliver their Passports and Rs. 5,000/- each for being sent to the Middle East Countries, in the year 1978, a complaint about which was filed on 6-12-1978 and after investigation, a challan in the case was filed in July, 1979 and still the case is not making any head-way, on account of miscellaneous proceedings that are filed by the accused, one after the other. The charge in the case was framed in the year 1982 and with great difficulty the Magistrate could examine two witnesses and thereafter on 25-11-1987 an application for amendment of the charge was filed, i. e. , almost after 5 years and 8 months of the framing of the charge. IT would be worth-while to note that the two witnesses were examined as early as in the year 1984 on 24-4-1984 and this application has been filed almost after 3-1/2 years of the examination of these two witnesses. The contention of the petitioner-accused is that it is alleged against the accused that he deceived 14 persons by giving them assurance to send them to the Arab Countries and thereby he obtained Rs. 70,000/- from one Karim Khan, complainant, out of which Rs. 30,000/- have been received by Karim Khan. The contention of the accused is that it is only Karim Khan who has been cheated of the money but it has been mentioned in the charge that 14 persons on whose behalf he paid this amount were also cheated. According to him the Court should have framed a charge that Karim Khan has been deceived and not the other 14 persons and, therefore, the charge is against the record and it should be amended because it has caused prejudice to him. When the case was argued before the learned trial court, a contention was raised that it appears from the charge that he has obtained Rs. 70,000/- by deceiving 14 persons and again he has received Rs. 70,000/- from Shri Karim Khan on their behalf and, therefore, it appears as if he has received this amount twice Mr. Bhagwati Prasad has stated that this contention was never raised by him in the application and, therefore, it is a mis-statement of the fact made by the Court. I have perused the order of the court. The learned Chief Judicial Magistrate has recorded the contentions raised by the learned counsel for the petitioner. If he has raised certain contentions which do not form part of his application, but which he has pressed before the court, the Court was obliged to record that submission and it is too late in the day to tell before this Court such a contention was never raised. If it was not raised in the learned lower court, a protest ought to have been made as soon as the order was pronounced. Judicial proceedings cannot be allowed to be challenged like this. The contention of Mr. Bhagwati Prasad before me is that the case of the prosecution is that only Karim Khan has been cheated and, therefore, no charge has been framed about cheating 13 other persons except his own son. He has further stated that none of those 14 persons have been cited as witnesses nor any of them has been examined, nor any of them has come forward to say that they have been deceived and, therefore, the use of words "mudks /kks[kk nsdj" in the charge is superfluous and against the record. In this respect he took me through sections 212,213 and 214 of the Criminal Procedure Code and has stated that only those persons should be mentioned in the charge, who have them selves been cheat. The charge discloses that those 14 person also have been cheated, which is against the record. In this respect he laid stress on section 214 of the Code, of Criminal Procedure, wherein it has been provided that every word used in describing the offence shall have the meaning or the sense attached to them by law and therefore, such superfluous words should not have been used. I may say that the entire argument is mis-conceived and is against the record. In the complaint in para 4 it has been mentioned that Shri Karim Khan was assured that the accused Nisar Ahmed can send persons to Arab count-ries because he has opened a Company, in this respect. These persons went to the house of Karim Khan in the presence of the accused on Idul Zuha. It has been mentioned in paragraphs 4 and 5 that these persons whose names have been men-tioned in para 4, collected at the house of Karim Khan, alongwith their parents and guardians. They delivered their Passports to Karim Khan, alongwith Rs. 5000/ each. The accused came there alongwith Lala Sarwar who too has been examined during investigation and it is alleged that in the presence of those 14 persons and their parents and guardians, this amount of Rs. 70,000/- was handed over by complainant Karim Khan to Shri Nisar Ahmed accused and Nisar Ahmed assured all those persons who were holding the passports alongwith their guardians and parents that he will send them i. e. , the Passport-holders on whose behalf he has accepted Rs. 5000/- each to Arab countries, within one month of that date, but he did not send any information for two months and thus, those persons who had paid the money, sent Karim Khan, alongwith Lala Sarwar to find out as to what has happened and, then it was found that the accused has opened no Com-pany and he has actually deceived and cheated those persons and it was in pursuance of this deception and cheating that those persons delivered their Passports to him, through Shri Karim Khan, alongwith a sum of Rs. 70,000/- @ Rs. 500q/-per passport. With the complaint, a list of witnesses has been filed and Kasam Khan, Cheensa, Jaffar Khan s/o Ladu Khan, Shoukat Khan, Hamid Khan, Jaffar Khan s/o lllahi Baksh Khan and Gulam Mohammed are the persons whose Passports have been delivered to the accused through Karim Khan and who have themselves paid Rs. 5000/- to the accused through Karim Khan. Rest of the persons were not available and, therefore, their parents who paid the money have been cited as witnesses and therefore, it is wrong on the part of Mr. Bhagwati Prasad to say that none of those persons have been cited as witnesses to state against the accused. Actually 7 persons out of the 14 persons cited as witnesses, the list filed with the complaint and Jaffar Khan, have been examined by the Investigating Officer and so it is wrong to say that none of those persons who have been cheated, have been examined by the Investigating Officer. . Cheensa s/o Shaukat Khan had gone out and, therefore, he could not be examined, but 7 out of those 14 persons have been cited as witnesses. It is a case where there is a clear cut allegation that these persons whose passports were obtained and on whose behalf a payment of Rs. 5000/-each was obtained to send them to the Arab Countries were themselves cheated and as the entire transactions took place through Shri Karim Kham who knew Nisar Ahmed through his nephew Lala Sarwar and, therefore, he too has been cheated. I am, therefore, of the view that charge has been correctly framed in this case and it requires no interference whatsoever. It is not at all the case of the prosecution that only Nisar Ahmed has been cheated or deceived but the case is that these 14 persons were assured by the accused himself that they will be sent to the Arab Countries, within one month of the date of the payment of money and delivery of Passport to him. It is not the case of the accused that any or some of these 14. persons have been sent to the Arab Countries through his agency and when that is not the contention of the accused, he cannot make any grievance of the charge that has been framed against him.
(3.) I, therefore, find no force in this revision and it is hereby dismissed at the admission stage. .;