- (1.) G .K. Sharma, J 1. This petition is under Section 482 Cr.PC which has been preferred against the order dated 15 -3 -1988 pissed by the Additonal Chief Judicial Magistrate, No. 2, Kota, by which, he ordered to deliver the recovered Ballis from the possession of the petitioner to Narain Das on Supardaginama.
(2.) ONE complaint was lodged at the Police Station by Govind Das respondent No. 2 against Mahesh Chand to the effect that Mahesh Chand purchased Ballis from their shop and he promised to make the payment of the same next morning, but without making the payment he took away those those Ballis in three trucks. It is further alleged that one of the truck loaded with ballis was sold by Mahesh Chand to the petitioner Sunder Lal A case under Section 420 IPC was registered against Mahesh Chand and the Police seized the ballis from the possession of Sunder Lal Petitioner. Sunder Lal petitioner requested the court to hand over the possession of the ballis to him on Supardaginama and on the other band Narain Das and Govind Das also, prayed similarly. The learned Magistrate after hearing both the parties passed an impugned order dated 15 -3 -1988 and ordered to hand over the ballis on Supardaginama of Rs. 20,000/ - to Narain Das. This order has been challenged here. Notice was issued to the respondents of this petition and I have heard both the learned Counsel for the parties. It was argued on behalf of the respondent that Mahesh Chand purchased these ballis from their shop and without making payment he took away the ballis. He told the respondents to make the payment in the morning and them he will remove the ballis but without making payment he removed the ballis from the shop of the respondents and kept them in the M.E.S. ground and thus, he has cheated the respondents. After hearing both the learned Counsel and looking to the facts and circumstances of the case, I find that Sunder Lal is the purchaser of the ballis from Mahesh Chand on making payment for which Mahesh Chand advanced receipt also. The argument that the ballis which were sold to Sunder Lal, petitioner were costing about 19,000/ -, but he purchased them for Rs. 9,000/ - only, shows that these ballis were not of Mahesh Chand and by dishonest intention he has sold these ballis to him. I see no substance in this argument. The petitioner purchased these ballis after making payment to Mahesh Chand and if Mahesh Chand has removed the ballis without making payment to the respondents, then the respondents are at liberty to recover the amount, i.e., the cost of ballis and for that Civil Court is there, but this is not a matter which is to be taken to the Criminal Court. The learned Chief Judicial Magistrate did not understand that when an offence under cheating is committed. A complaint has been lodged and a party has approached the Court and the learned Magistrate without applying his mind came to the conclusion that a case of cheating has been made out and he banded over the ballis to the respondents without any reasonable ground. The order of the learned Magistrate cannot be maintained and I fail to understand how these subordinate Courts work without looking into the provisions of law.
(3.) THE Misc. Petition is therefore, accepted. The order of the learned Additional Chief Judicial Magistrate dated 15 -1988 is set aside and it is directed that the ballis be handed over to the petitioner Sunder Lal on Supardaginama of Rs. 10,000/ -.;