SB Cr. Misc. Petition No.764/2005 H. Kanhaiyalal Mehta Vs. State & Anr. 1 S.B. Cr. Misc. Petition No.764/2005 H. Kanhaiyalal Mehta vs State of Rajasthan & Anr. DATE OF ORDER : - 10.7.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.Umesh Shrimali, for the petitioner. Mr.VR Mehta, Public Prosecutor. Mr.PC Solanki, for the respondent-complainant. <><><> Heard learned counsel for the parties. The petitioner is aggrieved against the order of the trial court dated 20.11.2004 by which the trial court, i.e., court of Addl. Judicial Magistrate No.3, Jodhpur took cognizance for offence under Section 406 IPC against the petitioner. Facts of the case are quite interesting in view of the fact that a complaint was submitted by the non-petitioner- complainant in the court of Addl. Civil Judge – cum -Judicial Magistrate No.3, Jodhpur, which was forwarded under Section 156(3) Cr.P.C. for investigation to the Police Station, Udai Mandir and in consequence thereof, FIR No.324 dated 19.6.2004 was registered. The allegations in the complaint are that the complainant was doing his SB Cr. Misc. Petition No.764/2005 H. Kanhaiyalal Mehta Vs. State & Anr. 2 business at Chennai and, therefore, was knowing the accused. The complainant closed his business at Chennai and shifted Jodhpur. The accused who was knowing the complainant, requested for some loan and looking to their relations, the complainant advanced loan to the accused. In the complaint, the specific date on which payments were made to the accused were not given by the complainant, but he only stated that the loan, which was advanced on the assurance of the accused for payment of loan amount on demand. In the year 2002, the complainant personally went to Channei and demanded return of the loan amount, upon which, the accused assured that the accused will repay the loan amount by 1.1.2003. When amount was not paid to the complainant, the complainant served a registered notice dated 25.4.2003 upon the accused and demanded Rs.2,29,390/-, the amount which was due as on 31.3.2003 and directed the accused to pay the said amount by demand draft payable at Jodhpur. The accused did not repaid the loan amount, therefore, he cheated complainant and mis-appropriated the complainant's money. With these allegations only, the complaint was filed. SB Cr. Misc. Petition No.764/2005 H. Kanhaiyalal Mehta Vs. State & Anr. 3 After investigation, FR was submitted by the investigating officer stating therein that contention of the complainant is that he paid Rs.1,15,000/- by cheque dated 13.3.1996 and Rs.85,000/- by cheque dated 11.3.2000. The complainant also disclosed that against those loan amount, the accused paid Rs.75,000/- through demand draft dated 14.2.2002 and, thereafter, he did not pay the amount then the complainant gave notice. From evidence, it was found that it was a case of civil nature only, which has been sought to be converted into a criminal case. The FR was submitted in the court where complainant submitted protest petition and, thereafter, on 20.11.2004 he withdrew the protest petition upon which the FR was accepted by the trial court. The complainant in whose case, FR was submitted and which was not accepted by the time 8.8.2004 submitted another complaint for offence under Sections 120B, 192, 201, 406, 420, 467, 468, 471 and 500 IPC. In this subsequently filed complaint, the complainant disclosed the amount as Rs.1,15,000/- on one occasion and more rupees by cheque dated 13.3.1996 and in subsequently filed SB Cr. Misc. Petition No.764/2005 H. Kanhaiyalal Mehta Vs. State & Anr. 4 complaint, the complainant admitted that he was paid Rs.75,000/- by the accused by demand draft. In the complaint, the complainant stated that the accused neither paid the principal amount nor paid interest thereon and thereby he mis-appropriated the complainant's money. The complaint is in detail and giving elaborate facts. The same complaint was sent to the Police under Section 156(3) Cr.P.C. for investigation by the court. Again FR was submitted by the Police Station Udai Mandir on 23.9.2004 after reaching the conclusion that its a case of civil nature and the allegations of complainant do not constitute any cognizable offence. Aggrieved against the said FR, the complainant submitted protest petition, which was accepted by the same court below vide order dated 20.11.2004. Hence, this petition under Section 482 Cr.P.C. Learned counsel for the petitioner vehemently submitted that it is clear case of abuse of process of court as in civil dispute a criminal complaint was filed wherein FR was submitted and a protest petition was submitted by the complainant himself and that was withdrawn. Knowing all these facts, complainant submitted another complaint SB Cr. Misc. Petition No.764/2005 H. Kanhaiyalal Mehta Vs. State & Anr. 5 before the first FR was accepted by the trial court and in second complaint again FR was submitted and unfortunately, the same court took cognizance for commission of offence under Section 406 IPC. Learned counsel for the complainant submitted that in case there are two separate and distinct offence are committed by one accused then two complaints are maintainable and in this regard, learned counsel for the complainant tried to distinguish two complaints on the basis of the fact that there is mention of one cheque no.662357 dated 11.3.2000, which is the fact not incorporated in the first complaint. It is submitted that in view of the above reason, the court was justified in taking cognizance and the defence of the accused cannot be looked into at this stage. So far as separate and distinct offences are concerned, there is no doubt that there may be separate cases for initiation of prosecution, but in this case, it appears that complainant knowingly abused the process of the court as well as process of law by filing complaint in the court and getting the matter investigated through police. From the facts mentioned in the complaint itself, rather in both the SB Cr. Misc. Petition No.764/2005 H. Kanhaiyalal Mehta Vs. State & Anr. 6 complaints it is clear that the complaint submitted by the complainant is that he had good relations with the accused and he advanced loan amount to the accused by cheque. The complainant admitted that the accused paid the interest, therefore, there was agreed term for payment of interest in case the accused keeps the money of the complainant. The complainant demanded the interest as well as some commission as mentioned in the second complaint and served a notice demanding loan amount only. In any of the complaint of the complainant it is not the case that at the time of taking loan the accused had intention to cheat the complainant, therefore, allegation for commission of offence under Section 402 IPC on the face of it from complaint itself was not tenable. It appears that to put pressure upon the accused in a commercial transaction of loan, complaint has been filed with allegation for commission of offence under Section 406, 407, 408, 471, 500 and 192 IPC etc. Not only above, but in fact, from the facts mentioned in the police papers submitted in the court it is clear that there was transaction of two money advanced as Rs.1,15,000/- and another Rs.85,000/- making SB Cr. Misc. Petition No.764/2005 H. Kanhaiyalal Mehta Vs. State & Anr. 7 it total amount of Rs.2 lac. Assuming for the sake of arguments, in the facts of the case, if there would have been some left out money in second complaint then also, the nature of the transaction as well as the incident and the allegations levelled do not constitute commission of any offence by the accused. In view of the above facts it appears that the learned Judicial Magistrate did not apply its mind on the relevant facts and the material available on record and committed grave error of law by taking cognizance by order dated 20.11.2004. Consequently, this misc. petition is allowed and the order of the trial court dated 20.11.2004 is set aside and the prosecution against the petitioner in pursuance of the above subsequent FIR is also quashed. (PRAKASH TATIA), J. c.p.Goyal/-