Mahesh Kumar vs State & Anr on 21 November, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3031 / 2012
Mahesh Kumar s/o Narayan Das Purohit, by caste Brahmin,
resident of Near Meman Market, Inside Kotegate, Bikaner.
—-Petitioner
Versus
1. State of Rajasthan

2. Chad Mohd. s/o Fakrudeen, by caste Muslim, resident of
Gujaro Ka Mohalla, Inside Gogagate, Bikaner.
—-Respondent
__
For Petitioner(s) : Mr. Nishant Bora.
For Respondent(s) : Mr. V.S. Rajpurohit, PP.
Mr. Suniel Purohit.
__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment
21/11/2017
By way of this misc. petition under Section 482 Cr.P.C., the

petitioner herein has approached this Court for challenging the

order dated 23.11.2012 passed by the learned Additional Chief

Judicial Magistrate No.1, Bikaner in Criminal Case No.164/2012

whereby cognizance was taken against the petitioner for the

offences under Sections 420 and 406 IPC.

Facts in brief are that the respondent complainant Chand

Mohd. submitted a written report with the Superintendent of

Police, Bikaner on 23.02.2011 alleging inter alia that he was

involved in the business of selling cow milk. He had deposited

various amounts in the Syndicate Bank in name of his three

daughters so that this money could be used at the time of their

marriage. The petitioner Mahesh Kumar was known to the

complainant from last 35 years because he used to supply milk at
(2 of 6)
[CRLMP-3031/2012]

Mahesh Kumar’s house regularly. Mahesh Kumar fell in need of

some money upon which, he requested the complainant to give

him loan of Rs.3,00,000/-. The complainant gave the said amount

as loan to the accused Mahesh Kumar on 01.01.2003 and a

receipt was also executed for the transation. The accused gave an

assurance to the complainant at the time of taking the loan that

he would repay the same in a week. However, later on, he told the

complainant that his daughters were still young and as soon as

they grew up, the money would be returned with interest. When

the complainant’s daughters became of marriageable age, he

asked Mahesh Kumar to repay the loaned amount who started

showing his reluctance. Mahesh Kumar and his uncle Rajendra

threatened the complainant and told him that no money of his was

due on the accused and if he made a demand thereof, he would be

done to death. The complainant alleged that in this manner, the

accused had cheated him and also committed the offence of

breach of trust. On the basis of this report, an FIR No.23/2011

was registered at Police Station City Kotwali, Bikaner for the

offence under Section 406 IPC and investigation commenced.

During the course of investigation, statement of the complainant

Chand Mohd. was recorded under Section 161 Cr.P.C. wherein, he

changed the version as set out in the FIR and alleged that when

Mahesh Kumar took loan, he assured that as soon as the

complainant’s daughters would attain marriageable age, he would

repay the amount with interest. For a period of about one and half

year of lodging the report, the accused continuously paid a sum of

Rs.100/- per day to the complainant but for the last 13 months,
(3 of 6)
[CRLMP-3031/2012]

he was not making any payment whatsoever. The complainant got

convened a panchayat wherein, the accused sought 3-4 months’

time for clearing of of the dues but thereafter, he bluntly refused

to pay the amount to the complainant and also threatened him.

After initial investigation, the police filed a negative final report in

the matter. The complainant submitted a protest petition

whereupon, the trial court directed reinvestigation. After re-

investigation, the investigating officer proceeded to file a charge-

sheet against the accused petitioner for the offences under

Sections 420 and 406 IPC. The trial court proceeded to take

cognizance against the petitioner for these very offences by the

order dated 23.11.2012 which is under challenge in the instant

misc. petition.

Shri Nishant Bora, learned counsel representing the

petitioner relied upon the Supreme Court decisions in the cases of

Hridaya Ranjan Pd. Verma Ors. vs. State of Bihar Anr.,

reported in AIR 2000 SC 2341 and Alpic Finance Ltd. vs. P.

Sadasivan Anr., reported in AIR 2001 SC 1226 and urges

that even if the allegations levelled by the complainant in the

highly belated FIR are accepted on the face value then too, ex-

facie ingredients of the offences alleged are not made out against

the petitioner. He urged that the complainant admitted that the

accused continued to pay him a sum of Rs.100/- per day till about

one and half years of lodging the FIR. Thus, as per Shri Bora, the

petitioner had paid an amount of nearly 3 lacs to the complainant

as per his own saying. He urges that if at all, the complainant was

desirous of repayment of loan from the accused and even if it is
(4 of 6)
[CRLMP-3031/2012]

assumed that the accused did not stand good to the terms of the

loan agreement executed between the parties then too, the only

remedy available to the complainant was to file a money suit for

recovery. As per Shri Bora, use of criminal process for recovering

the due loan is nothing short of a gross abuse of process of law

and thus he implored the Court to quash and set aside the

impugned order and all proceedings sought to be taken against

the petitioner in furtherance thereof.

Per contra, Shri Suniel Purohit learned counsel representing

the complainant vehemently opposed the submissions advanced

by the petitioner’s counsel and contended that the petitioner

cheated the complainant of a huge sum of money to the tune of

Rs.3,00,000/- by giving a false assurance. Neither did the

petitioner make payment of interest accruing on the loan nor did

he return the principal sum despite demand and hence, as per

Shri Purohit, the learned Magistrate was perfectly justified in

taking cognizance against the petitioner for the offence under

Sections 406 and 420 IPC. He thus urged that the misc. petition

should be rejected and the impugned order be affirmed. Learned

Public Prosecutor supported the arguments advanced by Shri

Purohit.

I have heard and considered the arguments advanced by the

learned counsel for the parties and have perused the impugned

order as well as the record. It is an admitted position from the

complainant’s own statement that he had voluntarily given the

loan to the tune of Rs.3,00,000/- to the accused on coming to

know of his bonafide need. Apparently, no fraudulent inducement
(5 of 6)
[CRLMP-3031/2012]

was given by the accused to get the loan from the complainant. In

this background, ex-facie the essential ingredients of the offence

of cheating are missing from the complainant’s case. The

complainant also admitted in his statement recorded by the I.O.

under Section 164 Cr.P.C. that the accused continued to make

payment of Rs.100/- per day to him till about one and half years

of lodging of the FIR. Thus manifestly, the accused paid an

amount of nearly Rs.2,52,000/- to the complainant over a period

of about 7 years. Thus, it is not a case wherein the accused failed

to repay even a single penny to the complainant after taking the

loan. Admittedly, a reasonable amount was repaid to the

complainant in daily installments for almost 7 years. Thus, by no

stretch of imagination, necessary ingredients of the offence under

Sections 406 and 420 IPC are made out against the petitioner so

as to warrant his trial. The situation at hand is squarely covered

by ratio of the Supreme Court Judgment in the case of Alpic

Finance Ltd. (supra). If at all the complainant was desirous to

recover his due money, he should have filed a civil suit for that

purpose. The complainant has clearly misused the criminal process

for recovery of money. Hence, I am of the firm opinion that the

impugned order whereby, cognizance was taken by the trial court

against the petitioner for the offences under Sections 406 and 420

IPC is grossly bad in eye of law and cannot be sustained.

Consequently, the instant misc. petition deserves to be and

is hereby allowed. The impugned order dated 23.11.2012 passed

by the learned Additional Chief Judicial Magistrate No.1, Bikaner

and so also all proceedings sought to be taken against the
(6 of 6)
[CRLMP-3031/2012]

petitioner for the offences under Sections 420 and 406 IPC are

quashed.

Record be returned to the trial court.

(SANDEEP MEHTA),J.

tikam daiya/

Leave a Comment

Your email address will not be published. Required fields are marked *