1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Mohan Lal Vs. The State of Rajasthan & Ors. (S.B. Criminal Revision Petition No.990/2004) Date of Order :- 15.09.2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Sunil Kumar Singodiya, for the petitioner. Ms.Alka Bhatnagar, Public Prosecutor. The petitioner has challenged the order dated 12.08.2004 passed by the Additional District & Sessions Judge, Jhunjhunu whereby the learned judge has quashed and set aside the order dated 30.10.2003 passed by the Judicial Magistrate, Udaipurwati. Vide order dated 30.10.2003, the learned Judicial Magistrate had taken cognizance against the accused-respondents for offence under Section 420 IPC. In a nutshell the facts of the case are that according to the petitioner, on 22.05.1996 when he was standing at the bus stand at Udaipurwati, Ramesh came to him and told him that he wants to sell 0.11 hectare of land in Khasra No.3232/3941. Since the petitioner was interested in buying the said land, he told Ramesh that he is willing to buy the said land. Ramesh and Om Prakash entered into a deal and settled the sale of the said land for about Rs.1,60,000/-. The petitioner claims that he paid them Rs.60,000/- as part payment of the 2 entire consideration amount. However, when he went to the Tehsil office, he was informed that the said Khasra number does not belong either to Ramesh, or to Om Prakash. He further claims that on 10.07.1996, they took Rs.10,000/- from him for the purpose of buying the necessary stamp papers. Despite receiving the said amount, the sale-deed was never registered. He further claims that the entire transaction took place before other villagers, namely Ganpat Ram, Savarmal, Prabhu Ram etc. After a thorough investigation the police had submitted a negative final report. Thereupon, the petitioner filed a protest petition. Vide order dated 30.10.2003, after discussing the evidence which was available, the learned Judicial Magistrate took cognizance against the accused-respondents for offence under Section 420 IPC. Aggrieved by the order dated 30.10.2003, the accused-respondents filed a revision petition before the learned Additional District & Sessions Judge. Vide order dated 12.08.2004, the learned Judge quashed and set aside the order dated 30.10.2003. Hence, this petition before this Court. Mr. Sunil Kumar Singodia, the learned counsel for the petitioner, has contended that a bare perusal of the facts would reveal that the accused-respondents did not have any title to the land which they proposed to sell to the petitioner. Moreover, while they had wrongfully gained Rs.70,000/- for themselves, they had caused a wrongful loss to the petitioner. 3 Furthermore, Since they are not the owner of the land, their intention, from the very beginning, was to cheat the petitioner. Hence, the ingredients of cheating as defined under Section 415 IPC are clearly made out. Secondly, the revisional court was not justified in discussing the evidence. For, at the time of taking cognizance, the Judicial Magistrate was concerned only with the existence of a prima facie case. Therefore, while discussing the evidence, the learned revisional court has overstepped its jurisdiction. Therefore, the impugned order deserves to be quashed and set aside. On the other hand, Ms. Alka Bhatnagar, the learned public prosecutor, has contended that it is a case of civil nature as it is a case of recovery of money. Moreover, the petitioner has already filed a civil suit against the accused-respondents. Hence, the revisional court was justified in quashing and setting aside the cognizance order. Heard the learned counsel for the parties and perused the impugned order. It is, indeed, a settled principle of law that while taking cognizance, the court takes cognizance of the offence and not of the accused. Moreover, the court is concerned only with the existence of a prima facie case to see if an offence has been committed. Therefore, the learned trial court was 4 concerned merely to see whether the ingredients of cheating were made out or not. A bare perusal of the allegations levelled by the petitioner clearly show that he had suffered a wrongful loss, while the respondents had caused a wrongful gain to themselves. Moreover, since the respondents were not the owner of the land in dispute, their intention to cheat the petitioner is writ large. Therefore, the learned Judicial Magistrate was justified in taking cognizance against the respondents. The learned revisional court has been swayed of the fact that there was a civil proceeding which was initiated by the petitioner. However, in the peculiar facts and circumstances of the case, mere pendency of a civil suit would not oust the jurisdiction of a criminal court to take cognizance of the offence. Therefore, the learned revisional court was not justified in being impressed by the fact that a civil suit was pending between the parties. Lastly, the learned revisional court has gone into the issue whether the agreement was entered by the respondents as a sale or not ? It is a question of fact, which can be appreciated only during the course of the trial. At the initial stage of taking cognizance, such issue can neither be considered, nor examined, nor critically analised. Therefore, the learned revisional court has clearly overstepped its jurisdiction. 5 For this reasons, this revision petition is, hereby, allowed. The impugned order dated 12.08.2004 is, hereby, quashed and set aside and the order dated 30.10.2003 is, hereby, restored. (R.S.CHAUHAN)J. Manoj Solanki-