1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Chandra Shekhar @ Shekhar & Anr. Vs. State of Rajasthan & Anr. S.B.CRIMINAL MISC. PETITION NO.1024/2006 ...... Date of Order : 10/09/2007 PRESENT HON'BLE MR. H.R.PANWAR, J. Mr. Devendra Singh Dev for the petitioners. Mr. Ashok Upadhyay, P.P. Mr. N.L.Joshi for the respondent No.2. BY THE COURT:- This criminal misc. petition under Section 482 Cr.P.C. is directed against the order dated 5.7.2006 passed by Additional Sessions Judge, Anupgarh, district Sriganganagar (for short 'the revisional court' hereinafter') dismissing the revision against the order dated 15.9.2005 passed by Judicial Magistrate, First Class, Anupgarh, district Sriganganagar (for short 'the trial court' hereinafter) taking cognizance of the offences under Sections 420, 406 and 120-B IPC. I have heard learned counsel for the parties, carefully gone through the orders impugned passed by the courts below as also perused the complaint No.362/2004 lodged 2 by respondent No.2 pending investigation with Anti-Corruption Department. It is contended by learned counsel for the petitioners that for the very occurrence, the respondent No.2 filed a complaint being Complaint No.362/04 which is pending investigation with the Additional Superintendent of Police, Anti- Corruption Bureau, Sriganganagar as evident from the communication issued by the said officer dated 3.1.2005 addressed to the petitioners. It is further contended that the respondent No.2 purchased a tractor of Model 2001 in the year 2003 and the documents of the purchase clearly reveal the date of sale and thus there is no element of cheating or criminal breach of trust or misappropriation as also there is no evidence of entering into a criminal conspiracy by the petitioners. Learned counsel for the petitioners further submits that the trial court fell in error in taking cognizance of the offences on the subsequent FIR on the same facts. Learned public prosecutor and the counsel appearing for the respondent No.2 supported the orders impugned. It is evident from the communication dated 3.1.2005 received from Additional Superintendent of Police, Anti- Corruption Bureau, Sriganganagar that the respondent No.2 filed a complaint being Complaint No.362/04. Even otherwise, it is not the case of the respondent No.2 that the petitioners sold the 3 used tractor and did not sale the new tractor. The only material available is that the manufacturing year of the tractor was 2001 and the petitioners who are salesman and proprietor of the firm Jai Shree Motors dealing in sale and service of the tractor, sold the tractor from Showroom brand new in the year 2003 though it was manufactured in the year 2001 and all the relevant documents show that the tractor has been sold in the year 2003, therefore, it cannot be said that the respondent No.2 at the time of purchasing the tractor was not aware of this fact. He purchased the brand new tractor with open eyes from the showroom of the petitioners and therefore, whatever amount as cost of the tractor has been charged by the petitioners as per the rate prescribed by the manufacturer. In the circumstances, therefore, there being no element of cheating or inducing the respondent No.2 to part with the property fraudulently or dishonestly. The very essential ingredients for the offence under Section 420 IPC are not made out. There is absolutely no evidence that the complainant respondent No.2 entrusted any property to the petitioners which the petitioners alleged to have misappropriated. In the circumstances, therefore, even there is no material to construe the offence under Section 406 IPC also. So far as the allegation of entering into a criminal conspiracy is concerned, there is no evidence in this regard. Both the courts below failed to consider this material aspect of the matter. The 4 complainant respondent No.2 also came with a case that the tractor trolley and thressor have not been delivered to him. The documents show that the respondent No.2 has received these articles and therefore, it cannot be said that the respondent No.2 simply signed the receipt for having received such articles. In the circumstances, therefore, to allow the orders impugned to stand would be nothing but an abuse of the process of the Court. In this view of the matter, the petition deserves to be accepted. Consequently, the criminal misc. petition is allowed. The order dated 5.7.2006 passed by the revisional court and the order dated 15.9.2005 passed by the trial court are set aside and the proceeding against the petitioners stands quashed. (H.R.PANWAR),J. rp