1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 814 OF 2009 Babulal Kapoorchand Kothari ..Petitioner versus The State of Maharashtra & Anr. ..Respondents Mr. A. K. Prajapati i/b. M/s. K. R. Tiwari & Co. for Petitioner. Ms. Mallika Ingale for Respondent No. 2. Mrs. A. A. Mane – APP for State. CORAM : S. A. BOBDE, J. DATED : 6TH OCTOBER, 2009. P.C. : 1. The petitioner has challenged the Order of the Metropolitan Magistrate Railway Mobile Court, Andheri, Bombay, dated 28th August 2007 dismissing his complaint and the Order dated 27th November 2008 passed by the Sessions Judge, Greater Bombay dismissing his Revision 2. The learned trial court has in the impugned order observed that the petitioner had earlier filed two prosecutions against the same accused but 2 had unconditionally withdrawn the two prosecutions. The learned Magistrate has further observed that in this case the petitioner is praying for appreciation of evidence adduced in the earlier prosecution. In conclusion the learned Magistrate has dismissed the complaint on the ground that no offence is prima facie made out from the complaint. Against which the petitioner preferred a Revision which is dismissed by the Sessions Court. 3. The learned counsel for the petitioner submitted that the petitioner who is a senior citizen of 85 years has filed the present complaint since the respondent – accused who is the landlord promised to pay Rs.1,00,000/- to the petitioner if he withdrew the earlier complaint and he has failed to make the payment as promised and therefore the petitioner has been cheated by the respondent – landlord. However, the prayer clause of the complaint reads as follows: “Please accept this case as I myself a senior citizen of India over age of 85 years and having ill health, having no any sources of Income and summons may please be served to Accused and listen both the parties and check up evidence and then pass an order as to repay my amount Rs.1 lakh with 9% interest and oblige. In the interest of justice please accept this case and oblige.” 3 It is obvious from the prayer clause of the complaint that no prayer for action in respect of any cheating is made out in the prayer clause. The learned counsel for the petitioner then referred to paragraph 5 to show that the offence of cheating is made out in that paragraph of the complaint. It however appears from paragraph 5 that the petitioner has alleged that the respondent is the landlord – accused collected Rupees One lakh towards permitted increase and water charges. Thereafter he has referred to some pressure having been put on him. It appears that an offence of cheating cannot be said to have been made out from the allegations which reads as follows: “5. Now come to point – he (Accused) has collected Rs. One Lakh on 2 June - 2007 in cash towards permitted increase and water charges which is totally unjustice to me. This only happens and how happens when I have surrender my running factory say Gala No. to Landlord on 29-5-2007 very earlier. He has a put pressure on me being a Landlord and having a vital power unless “untill you do not pay Rs. One Lakh to me. I will not sign Transfer Deed” on as such it is paid (unwillingly) One Lakh in cash. He has passed a receipt of Rs. One Lakh on 2-6-07. Suits withdrawn on 8-6-07 exact on Adj. Date.” 4. Thus, having regard to the fact that the petitioner had earlier filed two prosecutions which he had unconditionally withdrawn broadly in respect of 4 the same subject matter and in view of the fact that the allegations do not disclose an offence of cheating , there is no reason to interfere with the order of the learned Magistrate and the Sessions Court which has dismissed the Revision against that order. There is no merit in petition, which is hereby dismissed. (S. A. BOBDE, J.)