spb/- 1 15-10-revn313-05.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 313 OF 2005 IN CRIMINAL REVISION APPLICATION NO.145 OF 2004 IN CRI. CASE NO. 211/S/1995 Mr. Subhash Bahgwant Dabir ... Applicant. (Org.Complainant) Vs. Mr.Palsi Bhathena & Ors. ... Respondents. ...... Mr. D. P. Kamat for the Applicant. Mr. P.S. Hingorani, APP for the State. ...... CORAM : V. M. KANADE, J. DATE : 15TH OCTOBER, 2010. P.C. 1 Heard learned counsel appearing on behalf of the Applicant and learned APP for the State. None appears on behalf of the Respondents though they are served. The applicant has filed affidavit of service on the record. 2 The applicant is aggrieved by the order passed by the Additional Sessions Judge in Criminal Revision Application No. 145 of 2004, dated 2nd May, 2005. The Additional Sessions Judge by the said order was pleased to allow Revision Application filed by the original accused no.2 against the order passed by the Metropolitan Magistrate, 44th Court, spb/- 2 15-10-revn313-05.sxw Andheri, Mumbai, for framing charge against the accused for the offence punishable under section 420 read with section 34 and section 114 of the IPC. 3 The brief facts are that it is the case of the applicant that the representation was made by the accused that they were interested in purchasing the property owned by the applicant. On the representation of the accused, the applicant agreed to sell the property to the accused, the property being plot of agricultural land situate at Khaire village, Tal. Wada, Dist. Thane for total consideration of Rs. 13,45,500/-. After the accused was satisfied about the ownership rights of the applicant, the agreement of sale was executed on 25th October,1994; by which the applicant agreed to sell the property at a price of Rs. 45,000/- per acre. The earnest money to the tune of Rs. 6.75 lakhs was paid to the vendor and till the execution of the agreement of sale, it was agreed that the 60% of the price consideration will be paid after execution of the agreement of sale i.e. at the time of registration of the sale deed. The accused gave a cheque of Rs.4,20,500/- in favour of the applicant and represented that the cheque would be honoured on presentation. Believing the representation of the accused, the applicant executed the sale deed of the said plot. The cheque, however, upon presentation by the applicant was dishonoured. 4 The applicant, therefore, was constrained to file a complaint in the court of Metropolitan Magistrate. The process was issued by the learned Metropolitan Magistrate, who thereafter examined two witnesses in support of the complaint. The trial court passed order for framing the spb/- 3 15-10-revn313-05.sxw charge. No application was filed by the accused for discharge. 5 Against this order, original accused no.2 preferred revision application, which was allowed by the learned Additional Sessions Judge. The learned counsel for the applicant submitted that the Sessions Court had committed error of law which was apparent on the face of the record and also committed a material irregularity in not following the judgment of the Apex Court while considering the revision application filed by the applicant no.2. He has taken me through the judgment and order of the Sessions Court. 6 I have heard learned counsel for the applicant at length. I have also perused the impugned order passed by the Sessions Court. In my view, the Sessions Court committed apparent error in not taking into consideration the evidence adduced by PW-1 and PW-2 in addition to the complainant. Now the law on the point is well settled. The Apex Court in the case of State of Bihar vs. Ramesh Singh (AIR 1977 S.C.2012) has observed that the trial court while considering the application for discharge under section 245 sub-clause (1) has to see whether prima facie, there is material on record to show commission of offence by the accused. The Apex Court has held that the trial court is not expected to weigh and shift the evidence in order to find out whether there is sufficient evidence for the purpose of convicting the accused. Unfortunately, the Sessions Court has on the basis of conjecture and surmises has held that no case is made out by the complainant against the accused. The Sessions Court has observed that the complainant has not returned the earnest money to the accused and no legal steps were taken for cancellation of the sale deed. In my opinion, spb/- 4 15-10-revn313-05.sxw that is not the relevant criteria for the purpose of deciding an application for discharge. The Session Court has also observed that the accused had received 50% amount and the cheque which was given against part of the balance amount, was dishonoured. He further held that though another cheque was given to the complainant, but the complainant returned it back to the accused. On the basis of the said material, which is not part of the record, the Sessions Court has set aside the order of the learned Metropolitan Magistrate. In my view, this is a pure case of non- application of mind by the Sessions Court. In the present case, admittedly, only 50% amount was paid by the accused. Part of the balance consideration was paid by cheque and on the basis of representation, a sale deed was executed in favour of the accused. This cheque was given for balance consideration has been dishonoured. As a result, transfer of the ownership of the agricultural land in favour of the accused, on the basis of the representation made by the accused is wrongful gain to the accused and wrongful loss caused to the complainant. Prima facie, therefore, the case of cheating is clearly made out. 7 The impugned order passed by the Sessions Court is, therefore, quashed and set side. The trial court is directed to frame charge against the accused nos. 1 and 2. The trial court shall thereafter, as expeditiously as possible dispose of the case. 8 The Revision Application is accordingly disposed off. Certified copy expedited. [V.M. KANADE, J.]