IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Ram Prasad Vs. Prem @ Premraj & Another (S. B. Criminal Revision Petition No.1116/2009) S. B. Criminal Revision Petition under Section 397 read with 401 Cr.P.C. against the order dated 15-6- 2009 passed by Additional Sessions Judge, Gangapur city, District Sawai Madhopur in Cr. Revision Petition No.17/2008 whereby the learned Judge has quashed and set aside the cognizance order dated 12-9-2007 in Cr. Case No.135/2007. Date of Judgment: February 18th, 2010 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. Narendra Singh Dhakad, for the petitioner. Mrs. Alka Bhatnagar, Public Prosecutor for the State. Mr. Raghunandan Lal Dixit, for the respondent No.1. BY THE COURT: Aggrieved by the order dated 15-6-2009, passed by the learned Additional Sessions Judge, Gangapur City, whereby the learned Judge has quashed and set aside the cognizance order dated 12-9- 2007, passed by learned Judicial Magistrate, Bamanwas in Criminal Case No.135/2007, the petitioner has approached this Court. 2. According to the petitioner, he is a registered owner of a Tractor No.RJ-25/RA-0768, bearing Chasis No.91914141370, and Engine No.73781. According to him, the respondent No.1 Prem @ Premraj forcibly took away the tractor and refused to return the said tractor to the petitioner. The petitioner lodged FIR, FIR No.268/2006, with the Police Station Bamanwas for the offences under sections 379 and 341 IPC. However, after a thorough investigation, the police submitted a negative final report before the Judicial Magistrate. The petitioner challenged the final report, by filing protest petition. Learned Magistrate recorded the statements of the petitioner under section 200 Cr.P.C., and statements of his witnesses under section 202 Cr.P.C. Subsequently, vide order dated 12-9-2007, learned Magistrate took cognizance for the offences under sections 379 and 341 IPC. The accused respondent filed revision petition before the learned Additional Sessions Judge, Gangapur City. The Revisional Court vide order dated 15-6-2009, accepted the revision petition and quashed and set aside the cognizance order dated 12-9-2007. Hence, this petition before this Court. 3. Mr. Narendra Singh Dhakad, the learned counsel for the petitioner, has contended that the police submitted the negative final report, ostensibly on the ground that the dispute between the parties was of repayment of loan amount. Hence, the dispute was of a civil nature. Moreover, according to some of the witnesses, Prem had not taken away the tractor by force. But, in fact, the said tractor was returned by petitioner's brother, as the petitioner's brother owed a debt to Prem. Learned counsel for the petitioner, has pleaded that the learned Magistrate had not only noticed the negative final report given by the police, but had also discussed the same. Therefore, the learned Magistrate had taken cognizance after due application of judicious mind. Moreover, at the time of taking cognizance, the Magistrate is duty bound to see whether a prima facie case exist or not. After all, cognizance is taken of the offence and not of the accused. Since, according to statements of the petitioner and his witnesses, prima facie case did exist, the learned Magistrate was justified in taking cognizance. Lastly, the possible defence of the accused, that the tractor was returned by petitioner's brother in lieu of payment of debt, cannot be considered at the stage of taking of cognizance. Hence, the said possible defence was validly rejected by the learned Magistrate. According to learned counsel, the learned Judge has erred in observing that the Magistrate has not given any reason for disagreeing with the negative final report. Learned Judge has also ignored the legal position that the Magistrate is required to merely see the existence of prima facie case at the stage of cognizance. Lastly, the learned Judge has considered the possible defence of the accused respondent, which he could not have done so, while exercising revisional power. 4. On the other hand, Mr. Raghunandan Lal Dixit, the learned counsel for the accused respondent, has strenuously argued that a bare perusal of the facts narrated by the complainant himself clearly reveals that petitioner's brother had taken a loan from Prem, which he was unable to repay. Thus, the dispute is about recovery of money. However, in order to pressurize the accused respondent, from desisting from demanding repayment of loan, a false case has been fabricated against him. Secondly, the learned Magistrate has not given cogent reasons for disagreeing with the negative final report. Hence, the learned Judge was justified in setting aside the cognizance order. 5. Heard the learned counsel for the parties, considered the material available on record, and examined the impugned order. 6. It is, indeed, a settled position of law that cognizance is taken of an offence, and not of the accused. Similarly, at the time of taking cognizance, the court is concerned merely with the existence of a prima facie case. It is equally a settled principle of law that in case a negative final report has been submitted by the police, the learned court is duty bound to give reasons for disagreeing with it, while taking cognizance of the offence. 7. A bare perusal of the impugned order dated 12-9-2007 clearly reveals that the learned Magistrate had considered not only the statements of the complainant and his witnesses, but had also considered the documentary evidence, which existed in the form of registration papers of the tractor and other documents. Learned Magistrate had also given cogent reasons for disagreeing with the negative final report. He has clearly noted that although on the registration papers photographs of Ram Prasad, Budh Ram, and their mother Ram Pyari exist, but the fact remains that the tractor had been registered in the name of the petitioner Ram Prasad. Since, the tractor had been registered in the petitioner's name, the learned Magistrate was justified in concluding that accused respondent did not have any right to forcefully take away the tractor. Thus, relying on the statements of the complainant and his witnesses, the learned Magistrate disagreed with the negative final report. Hence, the learned Judge is unjustified in observing that the learned Magistrate has not given any cogent reasons for disagreeing with the negative final report. 8. The learned Magistrate was concerned only with the existence of strong prima facie case. Considering the statements of the petitioner, and of Mukesh, Ghanshyam, and Ram Pyari, the learned Magistrate found that there is strong prima facie case against the respondent. Thus, on the basis of statements of these witnesses, the learned Magistrate was legally justified in taking cognizance of the offence. 9. At the stage of taking cognizance, the court possibly cannot consider the possible defence, that may be raised by the accused respondent. At the stage of taking cognizance, the Court also cannot consider the exculpatory statement made in favour of the accused. It is, only at the stage of framing of charge, that the exculpatory evidence can be considered. Thus, even if there are stray statements in favour of the accused respondent, at the initial stage of cognizance such statement cannot be considered. Thus, at the stage of cognizance, the learned Magistrate was justified in ignoring the exculpatory statements. Learned Judge has erred in considering the stray exculpatory evidence. 10. For the reasons, stated above, the revision petition is allowed, and the impugned order dated 15-6-2009, passed by the learned Additional Sessions Judge, Gangapur City, is quashed and set aside. The cognizance order dated 12-9-2007, passed by the learned Judicial Magistrate, Bamanwas is, hereby, confirmed. ( R.S. CHAUHAN ) J. arn/