S.P. Pathak, J. - (1.) By this criminal misc. petition filed under section 482 Cr.P.C. the petitioners have challenged the order dated 5.6.2002 passed by the Additional Sessions Judge No.3, Kota in Criminal Revision Petition No.1/2000 whereby the order dated 25.10.1999 passed by the Additional Judicial Magistrate No.5, Kota (North) in Criminal Case No.491/1999 taking cognizance has been up-held.
(2.) Briefly stated, the facts for the disposal of the present petition are that complainant non-petitioner Dr. Laxmi Chand filed a complaint in the year 1995 before the learned Additional Chief Judicial Magistrate no.5, Kota with the averments that petitioner no.2 Dr. Kumari Lalita B. Kamat was owning a house bearing No.19-B in Gumanpura Kota and she sold the part of the house measuring 2710 sq.ft. under the registered sale-deed in the year 1982. The Western and Eastern side walls of the house remained in joint possession. On the first storey of the house there was an opened gate that was used by the complainant as well as petitioner Dr. Kumari Lalita. It was also alleged in the complaint that on 5.9.1995, petitioner Dr. Kumari Lalita sold 3300 sq.ft. Western portion of the house to petitioner no.1 Upendra Soni. Both of them were fully aware of the fact that as back as in the year 1982 under the sale-deed 10 sq.ft. Land of the complainant was being sold to the petitioner no.1 and in that regard a pre-emptory suit was filed in the court of Additional District & Sessions Judge No.1, Kota and in that case Commissioner was appointed to report about the existent position of the site. On 12.6.1995, the Commissioner submitted its report along with map which showed that the portion of that sold to the complainant was sold again by petitioner no.2 to petitioner no.1. The report further showed that the door which was opened on the first storey was closed with the ply-board on 12.6.1995. It is also alleged that the petitioners in a wrongful manner to cause loss of the property to the complainant and to deprive the complainant of his right to enjoy the property sold in all 3300 sq.ft. land whereas petitioner no.2 was only having 3290 sq.ft. land with her, therefore, the petitioners have committed offence under sections 341, 147, 420,148 and 465 IPC. The complaint so filed was sent for investigation to police station Gumanpura. The police after investigation submitted a negative final report for the reason that the matter was of civil nature. Again on specific points, direction was given to investigate the matter that as to whether the land which was sold to the complainant subsequently out of the land already sold was sold by the petitioner no.2 to petitioner no.1 and as such reduced 108.6 sq.ft. land of the complainant and this land was sold to the petitioner no.1. Again police submitted final report in the matter. The learned trial court on the protest petition found that from the investigation made by the police, it appeared that the land which was earlier sold to the complainant was sold again to petitioner no.1 by petitioner no.2. In all 108.6 sq.ft. of land which was of complainant was sold. It was also found that door was also closed, therefore, considering the matter fit in which cognizance was required to be taken against petitioner no.2 under sections 341, 420, 467, 468 and 471 IPC and against Upendra Soni- petitioner no.1 under sections 341 and 471 IPC took cognizance vide order dated 25.10.1999. The petitioners feeling aggrieved, preferred a revision petition no.1/2000 which came to be decided by the Additional District Judge NO.3, Kota vide order dated 5.6.20002. Hence, the present petition has been filed.
(3.) It has been contended by the learned counsel that the dispute between the parties is regarding measurement of the land and in that regard civil suit is pending between the parties in the court, therefore, it is a matter which is to be decided by the civil court and the courts below have committed illegality in proceeding against the petitioners after taking cognizance against them. It has also been contended that the trial court has not properly considered the evidence collected during the course of investigation. It is also contended that the facts and circumstances of the case would reveal that there was no criminal intention or mensrea on the part of the accused-petitioners. It has also been contended that in the absence of material, it cannot be said that the accused-petitioners have committed any of the offence regarding which the trial court has taken cognizance. It is also contended that the revisional court has also not poroperly appreciated the entire matter.;