Rajasthan High Court - Jodhpur
Saidittamal vs State & Anr on 18 January, 2018
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1557 / 2017
Saidittamal S/o Vajirchand, Aged About 75 Years, B/c Arora,
Resident of Ward No. 9, Padampur, District Sri Ganganagar (Raj.)
----Petitioner
Versus
1. State of Rajasthan
2. Rajkumar S/o Shri Subhash Chandra, Resident of 8 D.D. Tehsil
Padampur At Present 28, Dhanmandi, New Mandi, Gharsana, Dist.
Sri Ganganagar (Raj.)
----Respondents
_____________________________________________________
For Petitioner(s) : Mr.H.R.Chawla.
For Respondent(s) : Mr.M.S.Panwar, P.P., Mr.Akshay Surana.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order Date of Pronouncement : 18/01/2018 By way of this petition under Section 482 Cr.P.C., the accused petitioner has approached this Court for challenging the order dated 22.2.2014 passed by the learned Judicial Magistrate First Class, Padampur in Cr.Case No.106A/2014 whereby, the learned trial Judge took cognizance against him for the offence under Section 420 I.P.C. as affirmed by the learned Additional Sessions Judge, Srikaranpur in revision vide order dated 18.11.2016.
Facts in brief are that the respondent No.2 complainant filed a complaint in the court of learned Judicial Magistrate First Class, Padampur on 16.5.2013 alleging inter-alia that the petitioner Saidittamal had sold half portion of his agricultural property ad-
(2 of 4) [CRLMP-1557/2017] measuring 5.15 Bighas to the complainants grandfather Shri Brijlal through a registered sale deed. Shri Brijlal executed a Will of the said land in favour of the complainant and his brother which continues to be in their possession. However, the complainant claims to have received information that the accused petitioner fraudulently mortgaged the very same chunk of land which he had sold long back, with the Oriental Bank of Commerce and took loan thereupon. Upon coming to know of the said fraudulent act of the accused, the complainant met him and asked him to repay the loan and clear the land of all encumbrances but the accused bluntly refused to do so. Thereupon, the complainant proceeded to lodge an F.I.R. No.96/2013 against the petitioner for the offences under Sections 420, 467, 468, 471, 120B I.P.C. During the course of investigation, the Investigating Officer recorded statements of numerous persons and proceeded to submit a negative Final Report with a conclusion that the complainant party did not get the mutation carried out in their favour despite the registered sale made long back and the accused inadvertently took the mortgage loan on the land as the entire chunk of land continued to stand in his name in the revenue record. The accused repaid the total loan amount with interest thereupon and cleared the bank's dues and no loss whatsoever was caused to the complainant. The complainant however was not satisfied with the Final Report and submitted a protest petition which came to be accepted and the learned Magistrate took cognizance against the petitioner for the offence under Section 420 I.P.C. vide order dated 22.2.2014. As mentioned above, the order taking cognizance was affirmed by the (3 of 4) [CRLMP-1557/2017] revisional court by order dated 18.11.2016. Both these orders are under challenge in this misc. petition filed by the petitioner under Section 482 Cr.P.C.
Learned counsel Shri Chawla drew the Court's attention to the statement of Gulab Ram, the Patwari Halka recorded by the Investigating Officer, who stated that even after the sale made by the petitioner in favour of the complainant's grandfather, land ad- measuring 2.253 hectares remained in Saidittamal's name in the revenue record. Saidittamal's took loan from the OBC by mortgaging 1.884 hectares (7 Bighas 11 Biswas) of land only.
Considering this significant fact, this Court is of the firm opinion that apparently Saidittamal committed no offence whatsoever while taking mortgage loan from the Bank because even after 5.15 hectares of land had been sold by the petitioner to the complainant's grandfather, 2.253 hectares remained in his name and he was entitled to use the same as per his requirement. It is further relevant to mention here that the cheating if any by the so-called fraudulent mortgage by pledging the land not vested with the accused would have been committed with the Bank. However, the bank never raised any grievance regarding the loan transaction and since admittedly, the loan has been repaid, apparently, the accused cannot be held responsible for the offence of cheating.
In view of the above discussion, I am of the firm opinion that the learned trial court committed grave error in facts as well as in law while taking cognizance against the petitioner for the offence under Section 420 I.P.C. Ex-facie, the allegations of the (4 of 4) [CRLMP-1557/2017] complainant, upon being appreciated in light of the material collected by the Investigating Agency do not disclose the necessary ingredients of the offence of cheating so as to justify continuance of the criminal proceedings against the petitioner.
As a consequence of the above discussion, the misc. petition deserves to be and is hereby allowed. The impugned order dated 22.2.2014 passed by the learned Judicial Magistrate First Class, Padampur in Cr.Case No.106A/2014 as affirmed in revision vide order dated 18.11.2016 passed by learned Additional Sessions Judge, Srikaranpur, so also all the proceedings sought to be taken thereunder against the petitioner for the offence under Section 420 I.P.C. are hereby quashed.
Stay petition is also disposed of.
(SANDEEP MEHTA),J.
/tarun goyal/