SB Cr. Misc. Petition No.1236/2005 Khiyan Ram & Ors. Vs. State & Anr. 1 S.B. Cr. Misc. Petition No.1236/2005 Khiyan Ram & Ors. vs State of Rajasthan & Anr. DATE OF ORDER : - 9.7.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.JR Beniwal, for the petitioners. Mr.VR Mehta, Public Prosecutor. Mr.Vinod Bhadu, for the respondent. <><><> Heard learned counsel for the parties. The petitioners have challenged the order of the trial court dated 15.2.1001 by which the trial court took cognizance for the offence under Sections 420 and 406 IPC against the petitioners. A private complaint was submitted on 13th April, 1999 in the court of Addl. Chief Judicial Magistrate, Sangaria by the complainant Milakh Singh alleging therein that he is agriculturist and three accused-petitioners were doing work in his agricultural field. All the three accused used to borrow some money from the complainant and used to repay the amount, therefore, the complainant had faith in all three accused who are by caste Meghwal and belonging to ST. On 4.4.1997 the complainant alongwith his three above servants SB Cr. Misc. Petition No.1236/2005 Khiyan Ram & Ors. Vs. State & Anr. 2 (accused) due to his personal family work went to Sangariya and in the evening the complainant from his commission agent's shop paid Rs.42,000/- to these three accused persons for paying it to one Dhhana Singh S/o Jeet Singh of Chak 13AMP. The complainant stated that at Sangariya because of his personal work he stayed at Sangariya and he was under belief that the amount will be paid by the accused persons to Dhhana Singh who was in need of money, paid Rs.42,000/- to the three accused for payment to Dhhana Ram. On 6th April, 1997. When complainant returned back to his place, he inquired from Dhanna Ram whether he received Rs.42,000/- from the accused or not then he found that the amount was not paid to Dhanna Singh. The complainant searched the accused persons, but he could not find them. However, the complainant searched the accused from their village and on inquiry from them, the accused told that they spent the money in their own house hold expenditure and they will pay the money through Sugana Ram after six months. The amount was not paid to the complainant then complainant again contacted the accused but they were not found at their residence. On 5th April, 1999 the complainant SB Cr. Misc. Petition No.1236/2005 Khiyan Ram & Ors. Vs. State & Anr. 3 went with Sugana Ram to the place of accused and demanded money, upon which the accused told that they have mis-appropriated the above amount and the complainant may do whatever he wants to do. In support of this complaint, the complainant gave his own statement under Section 200 Cr.P.C. in the trial court and produced witness Sugana Ram and Dhanna Singh. After hearing the arguments for taking cognizance, the trial court vide order dated 10.8.1999 reached to the conclusion that since the complainant's allegation is that the money was paid from the Commission Agent Shop as stated by the complainant, therefore, he should produce the documentary evidence with respect to payment of Rs.42,000/- from the Commission Agent Shop and also produce the other witness in support of said plea. Continuously time was sought for producing evidence by the complainant, but ultimately, no further evidence was produced and evidence was closed by the complainant as recorded in order dated 15.2.2001. However, the court took the cognizance under Section 402 and 406 IPC. Therefore, aggrieved against the said cognizance order, the accused petitioners have preferred this SB Cr. Misc. Petition No.1236/2005 Khiyan Ram & Ors. Vs. State & Anr. 4 petition under Section 482 Cr.P.C. on the ground that there is no evidence available on record constituting any offence under Section 402 and 406 IPC and, therefore, proceeding with the prosecution is nothing but abuse of process of the court. Learned counsel for the complainant vehemently submitted that at the time of taking cognizance the court is required to see the allegations and evidence to find out whether there is sufficient reason to take cognizance and at this stage, the court is not supposed to examine whether the accused can be convicted on the basis of the evidence produced by the complainant at that stage. Learned counsel for the non-petitioner- complainant further submitted that once the cognizance is taken, the evidence can be produced by the prosecution, which includes all other witnesses as well as documentary evidence. It is submitted that there is no bar in producing documentary and other oral evidence more than the evidence, which has been produced by the complainant for taking cognizance only. In view of the above reasons, the petition of the petitioner deserves to be dismissed. It is also submitted SB Cr. Misc. Petition No.1236/2005 Khiyan Ram & Ors. Vs. State & Anr. 5 that this Court may not like to re-appreciate the evidence of the witnesses which have been considered by the trial court before taking cognizance. I considered the submissions of learned counsel for the parties and perused the record. It is clear from the facts mentioned in the complaint that the allegation of the complainant is that the three accused persons who are members of Schedule Tribe were the labour engaged in complainant's agricultural field and according to him, all the three accused used to borrow money from the complainant and that transaction continued and, therefore, the complainant developed faith in the accused persons. According to the complainant he paid Rs.42,000/- to three accused for paying it to one of his known person Dhhana Singh. In his statement, the complainant stated that Rs.42,000/- was paid from the shop of his son. The complainant's son was not produced nor books of accounts of his shop were produced before the trial court. The trial court gave opportunity to the complainant to produce the books of accounts of said shop of the complainant's son and also to produce the SB Cr. Misc. Petition No.1236/2005 Khiyan Ram & Ors. Vs. State & Anr. 6 complainant son himself but for the reasons best known to the complainant, he did not produce more evidence. In support of the fact that Rs.42,000/- was paid from the shop of the complainant's son, there is no other evidence except oral statement of the complainant. The complainant's witness Sugana Ram is only a witness to whom the three accused persons were supposed to pay the amount of Rs.42,000/-. The other witness Jeet Singh stated that he is neighbour of complainant and has regular commercial transaction with the complainant and used to take loan from complainant and complainant also used to take loan from him. He is also not witness to the event of making payment to the accused persons. He only stated that he demanded money from the complainant, which was not paid to him through the accused. He is not a witness to entrustment of money to accused by the complainant. On the basis of the above referred oral statement, taking cognizance is abuse of process of court because of the reason that there is no evidence on record to prove that money was entrusted to the accused and any offence under Section 402 and 406 IPC or has been committed by SB Cr. Misc. Petition No.1236/2005 Khiyan Ram & Ors. Vs. State & Anr. 7 the accused persons. In view of the above reasons, the petition is allowed. The order of the trial court dated 15.2.2001 is set aside and the prosecution against the petitioners is dropped. (PRAKASH TATIA), J. c.p.Goyal/-