- (1.) THROUGH this misc. petition u/s. 482 Cr. P. C. the petitioners call in question the order dt. 3. 3. 97 of the learned Judicial Magistrate No. 4, Jodhpur whereby he took cognizance against the petitioners u/s. 406 and 420 IPC and issued warrants of arrest.
(2.) THE brief facts of the case are that on 21. 8. 96 Manoj Israni filed a complaint before the Magistrate with the allegations that the petitioners, who were engaged in the building construction work, approached him and told that they would construct `happy Home' wherein shops/counters would be constructed in the ground floor and the first floor and if he wanted he could also get shops/counters on payment of Rs. 50,000/-,100,000 or 1,50,000/- depending on the size, and the com- plainant, believing their statements to be true, paid a sum of Rs. 4,00,000/- to them by cheque no. 876303 for four counters, one for Rs. 50,000/-, second for Rs. 1,50,000/- and two counters for Rs. 1,00,000/- each. THE further allegation is that the petitioners accused got the cheque encashed on 19-9-95, and that when the construction work was over the complainant approached them to give possession of the counters to him but they refused to give possession of any of the counters and told him that they would neither return Rs. 4,00,000/- nor would give possession of any counter. It is stated in the complaint that the accused were having dishonest intention from the very beginning and they have cheated the complainant. This complaint was forwarded to the police u/s. 156 (3) Cr. P. C. where a case u/s. 420 and 406 IPC was registered. THE police after investigation gave final report. On receiving notice, the complainant filed a protest petition. THE learned Magistrate after going through the material on record passed the impugned order. Mr. Bhoot, learned counsel for the petitioners contended that the allegations in the complaint do not constitute an offence, and the dispute between the parties is of civil nature. His contention was that the police had rightly given final report in the matter and the learned Magistrate has erred in issuing process against the petitioners. Mr. Bhoot urged that the complainant had deposited Rs. 4 lacs with the petitioners for allotment of the shares and the petitioners had deposited that amount in their account books and even allotted the shares to the complainant. Relying on the cases of Hari Prasad Chamaria vs. Bishun Kumar (1) Narain vs. State of Rajasthan (2) and A. K. Pareek vs. State of Rajasthan (3) decided on 9. 8. 96, he submitted that the impugned order be quashed. Mr. Mrudul, learned counsel for the respondent no. 2 and the P. P. , on the other hand, supported the impugned order. They contended that the allegations made in the complaint constitute the commission of cognizable offence by the petitioners and therefore this Court should not interfere in the order taking cognizance. Their contention was that the police had given final report on flimsy grounds and the learned Magistrate has rightly issued process after going through the record of the case. They pointed out that false stand has been taken by the petitioners that the complainant had deposited the amount for allotment of shares which plea has not been taken by them in the written statement filed in the civil court. They cited the cases of Kulwant Rai vs. State of Raj. (4), Ram Deo vs. State of Raj. (5), Laxmi Lal vs. State of Raj. (6) and Rahees and Shamsher vs. State I have considered the rival contentions made by the learned counsel for the parties. The first question to be determined is whether the complaint contains the allegations constituting commission of cognizable offence by the accused petitioners. At para no. 3 of the complaint it has been clearly stated that the petitioners had led the complainant believe that they would be constructing shops and counters and if he wanted he would be allotted counters and believing the statement to be true he paid Rs. 4 lacs to the accused petitioners by cheque. At para no. 5 it has been stated that after the counters were constructed the petitioners refused to hand over possession to the complainant. At para no. 6 the allegations are that the petitioners were having dishonest intention from the very beginning. In my opinion, the aforesaid allegations in the complaint clearly constitute the commission of the cognizable offence by the accused petitioners. In the statements of the witnesses also, it has come that the accused had caused the complainant to believe that if he paid certain sum of money he would be given possession of the counters and believing that statement the complainant deposited Rs. 4 lacs with the accused petitioners. In this connections there are the statements of Manoj Israni himself, Gopal Das and Harish.
(3.) IT is significant to point out that it is not disputed by the petitioners that Manoj had paid Rs. 4 lacs to them by cheque. The defence of the accused is that the complainant had deposited this sum for the allotment of shares. This defence cannot be conisdered at this stage, moreson , when it is not shown that the complainant had ever applied in writing for the allotment of the shares. That apart, admittedly the petitioners have not taken this plea in their written statement filed in the civil court. They simply denied the allegations of the plaint, and did not come out with a case of adjusting the amount against the allotment of shares. Of course, in the reply to the application under O. 39 Rule 1 & 2 C. P. C. the petitioners had stated that the amount was deposited by the complainant for the allotment of shares, but the fact that this plea was not taken in the written statement filed by the petitioners, entitles the complainant to contend that the petitioners are not coming with clean hands and they have acted dishonestly. It may be that the petitioners who had taken the amount from the complainant in the name of allotment of the counters later on entered the same in the books for allotment of shares but on that ground the impugned order cannot be quashed. It is a question of fact which can be decided by the trial court after the evidence is recorded. For the present only the complainant's version can be seen that the petitioners had obtained the amount from him telling that they would allot him for counters. Apart from that, the learned counsel for the petitioners could not show that the alleged allotted shares (certificates) were sent to the complainant. ;