Raman Lal vs State & Ors on 24 May, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 430 / 2012
Raman Lal S/o Shri Hari Ram Sharma, R/o Maliwada, Rajnagar,
P.S. Rajnagar, District Rajsamand.

—-Petitioner
Versus

1. The State of Rajasthan

2. Udai Lal S/o Shri Chhoga Lal, By Caste Dhokha (Jain), aged
63 years.

3. Raju S/o Shri Udai, B/c Dhokha (Jain), aged 30 years,

4. Mahendra Kumar S/o Shri Udai Lal, B/c. Dhoka (Jain), aged
28 years
Respondent No.2 to 4 R/o Merda, Tehsil Amet, District
Rajsamand.

—-Respondents
__
For Petitioner(s) : Mr. Amithabh Acharya
For Respondent(s) : Mr. L.R. Upadhyay, P.P. for the State.
For Respondent Nos.2 3 : Mr. Vinod Sharma.
__
HON’BLE MR. JUSTICE P.K. LOHRA
Order
24/05/2017

Petitioner-complainant has preferred this revision petition

under Section 397 read with Section 401 Cr.P.C. to assail

impugned judgment dated 18th of April, 2012, passed by Sessions

Judge, Rajsamand (for short, ‘learned Court below’), whereby

learned Court below allowed revision petition of respondent Nos.2-

4 and discharged them for offence under Sections 420, 406

120-B IPC by setting aside order dated 8 th of April, 2010, passed

by Chief Judicial Magistrate, Rajsamand (for short, ‘learned trial

Court’) taking cognizance against them for the aforesaid offences.

(2 of 4)
[CRLR-430/2012]

The facts, apposite for the purpose of this revision petition

are that petitioner filed a criminal complaint against respondent

Nos.2 to 4 before learned trial Court, inter-alia, alleging therein

that he is engaged in the business of marble blocks and slabs in

the names style of firms Raj Marbles and Diamond Marbles and

respondents, for last almost 25 years, were purchasing marble

tiles and slabs from the petitioner by making part payment and

keeping the remaining amount outstanding. The complaint unfurls

that for quite some business dealings between rival parties

remained streamlined but by efflux of time the outstanding

amount piled up to the tune of Rs.25,00,000/- and the same is

not paid by the respondents despite demand. It is in that

background, petitioner attributed mensrea to the accused

respondents and alleged aforesaid offences against them. The

learned trial Court send the matter for investigation to the

concerned police Station. After receipt of the report from police

station, statements of complainant were recorded under Section

202 Cr.P.C., and thereafter, the learned trial Court proceeded to

take cognizance against the accused respondents for offence

under Sections 420, 406 120-B IPC. As a consequence of

cognizance, learned trial Court issued bailable warrants in a sum

of Rs.5,000/- to the accused respondents.

Being aggrieved by the same, accused respondents

approached learned Court below by preferring a revision petition,

which was barred by limitation. The learned Court below

condoned the delay and examined the order of cognizance on

merits. Upon examining the matter on merits, the learned Court
(3 of 4)
[CRLR-430/2012]

below found that it is a pure and simple case of breach of contract

and as such aforesaid offences are, prima facie, not made out

against the accused respondents. For arriving at its conclusion

learned Court below has placed reliance on some of the judgments

of Supreme Court.

Heard learned counsel for the petitioner, learned Public

Prosecutor as well as learned counsel for the accused respondents

and thoroughly scanned the record of the case.

On a close scrutiny of the complaint with allied papers and

the statements of the complainant recorded under Section 202

Cr.P.C., it is apparently clear that business transactions between

petitioner and accused respondents continued for a considerable

long period and during that period marbles slabs and tiles were

supplied by the petitioner to them while accepting part payment.

The complainant himself in his statements under Section 202

Cr.P.C. has admitted that, in all, 25 lacs are outstanding against

accused respondents which they are not paying. The complainant

has further admitted that part payment to the tune of Rs.10-11

lacs is paid by them but they have declined to pay the outstanding

amount of Rs.25 lacs. Therefore, taking into account the

allegations in the complaint as well as the statements of the

complainant, learned Court below has found that it was a simple

case of business transactions and the ingredients of criminal

breach of trust are conspicuously missing.

While it is true that civil and criminal proceedings can

continue simultaneously if there is prima facie proof about

commission of criminal offence by the accused persons but then
(4 of 4)
[CRLR-430/2012]

every failure on the part of accused will not attract provision of

Section 406 IPC. In order to constitute offence of criminal breach

of trust, pre-requisite is dishonest intention of the accused

persons. Every breach of trust in absence of mensrea or criminal

intention cannot legally justify criminal prosecution inasmuch as

criminal intention is the gist of the offence under criminal breach

of trust, forgery or making false documents. A very vital fact, that

rival parties were having business relationship, and when the said

relationship was in vogue part payment was made by the accused

respondents, presupposes that it was not a case of mensrea on

the part of accused respondents. Upon examining the complaint

of the petitioner and his statements recorded under Section 202

Cr.P.C., it is clearly discernible that the dispute between the parties

constitutes only a civil wrong and not a criminal wrong for which

appropriate remedy is available to the petitioner-complainant

before the Civil Court. The Court below has made sincere

endeavor to examine this aspect of the matter in the backdrop of

peculiar facts and circumstances of the instant case and by relying

on some of the decisions of Supreme Court, has rightly exercised

its discretion to upset the order of cognizance.

In view thereof, I record my satisfaction about correctness,

legality and propriety of the impugned order and feel dissuaded to

exercise revisional jurisdiction in the matter.

Resultantly, the petition fails and same is hereby dismissed.

(P.K. LOHRA)J.

Twinkle Singh/19

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