Rajasthan High Court - Jaipur
Ashok Mehta And Ors. vs Amrik Singh And Anr. on 17 December, 1990
Equivalent citations: 1990WLN(UC)185
JUDGMENT B.R. Arora, J.
1. This miscellaneous petition is directed against the order dated December 1, 1984, passed by the learned Additional Munsif and Judicial Magistrate (South), Udaipur, by which the learned Magistrate took the cognizance against the petitioners.
2. The complainant Amrik Singh filed a complaint Under Sections 420 and 406, I.P.C. against the petitioners in the Court of the Additional Munsif and Judicial Magistrate (South), Udaipur, on November 12, 1984, alleging therein that in the month of January, 1979, the accused-respondents (who are petitioners in this case) came to his office, situated at 24-C, Pratapnagar, and showed their intention to purchase the soapstone and it was agreed between them that the complainant will sent two trucks of soapstone to them, which will remain as his property on security with them and the accused, after selling the soap stone, will send the amount of the sale price to the complainant. In prusuance to this undertaking, the complainant, on January 25,1979, by bill No. 25 sent soapstone amounting to Rs. 5590/-and vide bill No. 26 sent the soapstone of the value of Rs. 2860/- to the accused petitioners. The complainant sent the soapstone valuing Rs. 8450/- to the accused persons through Vijay Laxmi Transport Company, Udaipur. The Accused got this soapstone, sold the same and kept the amount of the soapstone with them. According to the complainant, the accused, thus, committed an offence punishable Under Sections 406 and 420, I.P.C. It was, therefore, prayed that the accused should be punished in accordance with law. The complainant, in support of his complaint, examined himself Under Section 200 Cr. P.C. and also examined Narain Singh and M.S. Sodhi Under Section 202, Cr. P.C. The learned Magistrate, after considering the complaint and the statements of PW 1 Roop Singh, PW 2 Narain Singh and PW 3 M.S. Sodhi, recorded Under Sections 200 and 202 Cr. P.C, took the cognizance against the accused petitioner, attended the Court and moved an application Under Section 245(2) Cr. P.C. submitting therein that on the same facts, the complainant filed a complaint in the same Court on earlier also, and in support of that complaint, he examined himself as well as Satpal Singh. The learned Additional Munsif and Judicial Magistrate, by his order dated July 22, 1980, after considering the complaint and the statements of Amrik Singh and Satpal Singh, refused to take cognizance against the accused petitioners. Dissatisifed with that order, refusing to take cognizance by the learned Additional Munsif and Judicial Magaistrate (South), Udaipur, the complainant preferred a revision petition before the learned Sessions Judge, Udaipur. That revision petition was transferred to the Court of the Additional Sessions Judge, Udaipur, who, by his order dated April 29, 1983, dismissed the revision petition filed by the complainant and refused to take cognizance against the accused. It was, also, mentioned in the application that a civil suit, after rejection of the complaint, was, also, filed by the complainant in the Court of the Civil Judge, Udaipur, on January 22,1982, for the recovery of this very amount and that suit is still pending. The accused, therefore, prayed that the proceeding should be dropped against the complainant as the complainant has suppressed these facts from this Court. This application was filed by the petitioners (accused) on December 1, 1985, but it has not yet been disposed of.
3. I have heard the learned Counsel for the petitioner and the learned Counsel for the complainant as well as the learned Public Prosecutor.
4. It is contended on behalf of the accused petitioners that when earlier complaint, filed by the complainant on the same facts, was dismissed by the learned Additional Munsif and Judicial Magistrate (South), Udaipur on January 22, 1980, and the Court refused to take the cognizance and which order was affirmed by the learned Additional Sessions Judge, Udaipur, by his order dated April 29, 1983, in the revision petition, then the second complaint on the same grounds is not maintainable. It is further submitted that when for the recovery of the amount the petitioner has already taken recourse to a civil court by filing a civil suit on January 22, 1982, the recourse by way of filing a criminal proceeding should not have been allowed to be taken. The learned Counsel for the petitioners has, also, contended that the cognizance in the present case has been taken by the learned Additional Munsif and Judicial Magistrate Under Section 406, I.P.C., which is punishable for a term, which may extend to three years or with fine, or with both, and as the alleged offence, according to the complainant, was committed in the month of January 1979, and the cognizance was taken by the Court on December 1, 1984, it is clearly barred by time in view of the provisions of Section 468, Cr. P.C. as the time provided in such cases for taking the cognizance is of three years. The learned Counsel for the complainant and the learned Public Prosecutor, on the other hand, have supported the order passed by the learned Judicial Magistrate. It is contended on behalf of the non- petitioner complainant that the learned Magistrate has taken the cognizance, which is an exparte order and if the petitioners have got any grievance then they may agitate it before the trial Court and this Court should not interfere in its inherent jurisdiction Under Section 482, Cr. P.C. The learned Public Prosecutor has, also, supported the judgment passed by the learned Judicial Magistrate.
5. I have considered the rival submissions made by the counsel for the parties.
6. It is clear from the certified copy of the order dated April 29, 1983, passed by the learned Additional Sessions Judge, Udaipur, in the case of the petitioners, that the complainant filed a complaint on the same grounds with respect to the same incident and examined himself as well as Satpal Singh in support of the complaint and on that complaint, the learned Additional Munsif and Judicial Magistrate (South), Udaipur, refused to take cognizance against the petitioners and against that order refusing to take the cognizance, the complainant preferred a revision petition, which was dismissed by the learned Additional Sessions Judge, Udaipur. A copy of the civil suit dated January 22, 1982, filed by the complainant in the Court of the Civil Judge, Udaipur, is, also, on record. The accused petitioners, after they put in appearance before the trial Court, moved an application Under Section 245(2) Cr. P.C, on December 1, 1985, which has not yet been decided by the learned trial Court in the last five years. When the complaint filed by the complainant on the same grounds was dismissed by the learned Additional Munsif and Judicial Magistrate (South), Udaipur, on July 22, 1980, and the Court refused to take cognizance and against which the revision petition was, also, dismissed on the basis of the same evidence and same allegation, the second petition was not maintainable. When an order was passed by the Magistrate, competent to pass the same with respect to the same offence and no cognizance was taken, then a fresh complaint with respect to the same offence and for the same incident cannot be allowed to be made. Criminal prosecution of a person for the same offence, which has been ended in his favour, cannot be allowed to be continued. The petitioners were the parties to the revision- petition. The notice of the revision-petition was given to them and it was after hearing them that the revision-petition was decided by the learned Additional Sessions Judge by his order dated April 29, 1983. Though an order of dismissal Under Section 203, Cr. P.C. is no bar to the entertainment of the second complaint on the same facts, but it can be entertained only in exceptional circumstances where the previous order was passed on an imcomplete record or on a mis-understanding of the nature of the complaint. But in the present case, the complaint filed by the complainant earlier, as well as in this case, the evidence prouduced by the complainant was indentical and the same. The allegations are the same. No fresh material has been brought on record except to examine two witnesses stating the same facts as to examine two witnesses stating the same facts as were stated in the earlier proceedings. When the complaint filed by the complainant was dismissed after giving a fully opportunity of hearing and producing the evidence and also after full consideration of his case, he cannot be given, again, an opportunity to file the second complaint and pray for the inquiry. There must be some finality of the proceedings. An accused cannot be harassed indefinitely by filing a number of complaints on the same allegations and in the same matter. A protection against the reprosecution after the rejection of the complaint is guaranteed even under Article 20(2) of the Constitution of India. The alleged offence, according to the complainant himself, took place in the month of January, 1979, and the cognizance has been taken by the learned trial Court by his order dated December 1, 1984, i.e., after about a lapse of five years, which is also, barred by time, as per the provisions of Section 468(2) of the Code of Criminal Procedure. Normally, at the time of taking cognizance, the Court has to see whether any case is made out to proceed with or not, but when the complainant suppressed some materials, which are very much relevant to the case and if those materials would have been brought to the notice of the Court then the Court might not have taken the cognizance. These were brought to the notice of the Court but are not considered and decided by the Court for a period of about five years then it is nothing but a harassment to the accused. Even otherwise, also, the alleged offence was comitted in the year 1979 and the earlier proceedings, which were initiated in the year 1980, came to an end on April 29, 1980 and again a fresh complaint was filed on November 12, 1984, and cognizance was taken on December 1, 1984. More than six years have elapsed but the case has not proceeded further. In this view of the matter, the continuance of the proceedings before the lower Court is an abuse of the process of the Court and should be quashed.
7. Consequently this Miscellaneous Petition is allowed, and the order dated December 1, 1984, taking cognizance against the petitioners, is set aside and the proceedings in Criminal Case No. 3398/1984 (Amrik Singh v. J.P. Mehta), pending in the Court of the Additional Munsif and Judical Magistrate (South), Udaipur, against the petitioner, are quashed.