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
