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Bhanwarlal vs Jamnaprasad on 4 April, 2017

M.Cr.C. No.6474/2015
04.04.2017
Shri Manoj Saxena, learned counsel for the applicant.
None for the respondent No.1 even after service of notice.
Shri Himanshu Joshi, learned Panel Lawyer for the
respondent No.2/State.
Heard.
ORDER

This revision has been filed under Section 482 of Cr.P.C.
against the order dated 28.04.2015 passed by I A.S.J. to ASJ,
Shujalpur, District-Shajapur in criminal revision No.173/2014,
whereby learned Judge rejected the applicant’s criminal revision
and maintained the order dated 26/09/14 of JMFC Shujalpur
wherin learned Judge had rejected the applicant’s private
complaint under section 203 of Cr.P.C.

Brief facts of the case are that applicant filed a private
complaint against non-applicant No.1 for the offence u/S.406 of
IPC averring that on 29.12.2013 at 1:00 pm present applicant,
Santosh and Anil were sitting in the applicant’s office at
Shujalpur. At that time non-applicant No.1 Jamnaprasad came
and sat in the office. Applicant told Santosh that he is going to
give money to Jagdish on which non-applicant No.1 Jamnaprasad
told him that he would give money to Jagdish since he was
already going to Aasreta. Therefore, applicant gave Rs.1,00,000/-
to non-applicant No.1 Jamnaprasad and also informed Jagdish
on mobile phone that he had given Rs.1,00,000/- to
Jamnaprasad for giving it to him. On the same day, Jagdish
informed applicant that non-applicant No.1 Jamnaprasad did not
give money to him so he called non-applicant No.1 but he did not
receive the call. Then he went to the house of non-applicant No.1
Jamnaprasad but he was not there. On 31.12.2013, applicant met
non-applicant No.1 and told him that he had spent that
Rs.1,00,000/- and would return it to him on 02.01.2014. But
Jamnaprasad neither returned the money to the applicant nor
gave it to Jagdish. Therefore, cognizance for the offence u/S.406
of IPC was taken against the non-applicant No.1 Jamnaprasad.

On that complaint, learned trial Court recorded the
statements of applicant and witnesses Santosh and Anil Patidar
u/S.202 of Cr.P.C. After that learned trial Court vide order dated
06.05.2014 rejected the applicant’s complaint observing that
applicant had not filed any written document showing that he
gave Rs.1,00,000/- to Jamnaprasad for giving to Jagdish. Being
aggrieved from that order applicant filed criminal revision
No.173/2014, which also was dismissed by ASJ to the Ist ASJ,
Shujalpur by order dated 28.04.2015. Being aggrieved from that
order applicant filed this petition.

Learned counsel for the applicant submitted that from the
averment of complaint and statement of applicant and his
witnesses Santosh and Anil Patidar prima facie it clearly appears
that applicant gave Rs.1,00,000/- to non-applicant No.1
Jamnaprasad on 29.12.2013 for giving it to Jagdish but
Jamnaprasad did not give money to Jagdish according to
condition of entrustment and neither did he return to
applicant, and spent the money for his own use therefore, offence
u/S.406 of IPC is made out against the non-applicant No.1.
learned trial Court as well as revisional Court committed mistake
in rejecting the applicant’s prayer.

This Court has gone through the record and arguments put
forth by learned counsel for the applicant.

While examining the scope of section 203 of Cr.P.C. the Hon’ble
Supreme Court in the case of Debendra Nath Bhattacharya
Vs The State of West Bengal and another AIR 1972 SC
1607 held as under :

” It has to be remembered that an order of dismissal of a
complaint under section 203 of Cr.P.C. has to be made
on judicially sound grounds. It can only be made where
the reasons given disclose that the proceedings cannot
terminate successfully in a conviction. It is true that the
Magistrate is not debarred, at this stage, from going into
the merits of the evidence produced by the complainant.
But, the object of such consideration of the merits of the
case, at this stage, could only be to determine whether
there are sufficient grounds for proceedings further or
not. The mere existence of some grounds which would
be material in deciding whether the accused should be
convicted or acquitted does not generally indicate that
the case must necessarily fail. On the other hand, such
grounds may indicate the need for proceeding further in
order to discover the truth after a full and proper
investigation. If, however, a bare perusal of a complaint
or the evidence led in support of it show that essential
ingredients of the offence alleged are absent or that the
dispute is only of a civil nature or that there are such
patent absurdities in evidence produced that it would be
a waste of time to proceed further, the complaint could
be properly dismissed under Section 203, Criminal
Procedure Code.

Which shows that an order of dismissal of a complaint
under Section 203 of Cr.P.C. can only be made where the reasons
given disclose that the proceedings cannot terminate successfully
in a conviction. While in the instant case applicant in his
statement clearly deposed that on 29.12.2013 at 1:00 pm present
applicant, Santhosh and Anil were sitting in the applicant’s office
at Shujalpur. At that time non-applicant No.1 Jamnaprasad came
and sat there. Applicant told Santosh that he is going to give
money to Jagdish on which non-applicant No.1 Jamnaprasad told
him that he would give money to Jagdish since he was already
going to Aasreta. Therefore, applicant gave Rs.1,00,000/- to non-
applicant No.1 Jamnaprasad and also informed Jagdish on
mobile phone that he had given Rs.1,00,000/- to Jamnaprasad
for giving it to him. On the same day, Jagdish informed to
applicant that non-applicant No.1 Jamnaprasad did not give
money to him Then he went to the house of non-applicant No.1
Jamnaprasad but he was not there. On 31.12.2013, applicant met
non-applicant No.1 and told him that he had spent that
Rs.1,00,000/- and would return it to him on 02.01.2014. But
Jamnaprasad neither returned the money to the applicant nor
gave it to Jagdish. From applicant’s statement which is also
corroborated by the statement of his witness and also from the
averments of complaint the offence under section 406 I.P.C.
prima facie made out against non applicant No.1. Learned trial
court rejected the complaint only on the ground that applicant
had not filed any written document while it is not necessary that
a person always take a receipt of the sum he is handing over to
someone for giving it to some other person. Whether the
allegation levelled by the applicant is true or false would be
decided after trial and if it is found that applicant had filed false
complaint against non applicant no1 to harass him , Non
applicant can take appropriate action against him .

So in the considered opinion of this Court the learned trial
Court as well as revisional Court wrongly rejected the applicant’s
complaint. Hence petition is allowed and trial Court is directed
to take cognizance against non applicant No.1 for the offence
under section 406 of I.P.C. from the complaint and proceed
further according to law.

The petition stands disposed of accordingly.

(Rajeev Kumar Dubey)
Judge
JYOTI

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