1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT Dori Lal & Anr. Vs. State of Rajasthan & Anr. (S.B. Criminal Misc. Petition No.1088/2010) S.B. Criminal Misc. Petition under Section 482 Cr.P.C. against the order dated 02.04.2009 passed by the learned Civil Judge (J.D.) and Judicial Magistrate First Class, Kathumar, District Alwar. Date of Order :- 12th July, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.N.K. Singhal, for the petitioners. Mr.Javed Chaudhary, Public Prosecutor for the State. The petitioners have challenged the order dated 02.04.2009 passed by the learned Civil Judge (J.D.) and Judicial Magistrate First Class Kathumar, District Alwar, whereby the learned Magistrate has taken cognizance for offence under Section 406 IPC against them. It is the case of the petitioners that their sister, Smt. Meera Devi, is married to the son of the respondent No.2, Chhitarmal, the complainant in this case. On 20.09.2005, the petitioners' sister, Meera Devi had lodged a complaint against the respondent No.2 and his family members for offences under Sections 498A, 323, 504 & 506 IPC and 3/4 Prohibition of Dowry Act. Thereafter, as a counter blast, on 23.03.2006, the respondent No.2 has filed a frivolous complaint before the Judicial Magistrate, Kathumar for offence under Section 406 IPC. According to the learned counsel, the falsity of the case is apparent from the fact that 2 according to the complainant-respondent No.2, on 15.05.2005, the petitioners had came to his house and on the pretext that “Grah Pravesh” at their new house is about to take place, they had asked him for a loan of Rs.50,000/-. While taking the money, they had also taken away their sister, Meera Devi and had also taken away some jewelery from the house. According to the complainant, the amount of Rs.50,000/- was never returned. Hence, his complainant for offence under Section 406 IPC was made out. On the said complainant, vide order dated 02.04.2009, the learned Magistrate took the cognizance against the petitioners. Hence, this petition before this Court. Mr. N.K. Singhal, the learned counsel for the petitioners, has vehemently contended that in case the complaint is taken on its face value, then it is a case of merely recovery of money which is of a civil nature. However, the learned Magistrate has taken the cognizance treating the case to be of a criminal nature. Therefore, according to the learned counsel, the cognizance order needs to be set aside. Heard the learned counsel for the petitioners and perused the impugned order. It is, indeed, trite to state that jurisdiction of a Magistrate while taking cognizance is an extremely limited one. At the time of taking cognizance, the Magistrate is concerned only with the existence of a prima facie case against the accused. In fact, a cognizance is taken of the offence and not even of the offender. 3 Therefore, the Magistrate is concerned at that stage with the existence of the ingredients of an offence. At the preliminary stage of taking cognizance, the Magistrate is not permitted by law to look at evidence or documents which might be in favour of the accused. Therefore, at that time, in the present case, the Magistrate could not have considered whether a case had been initiated against the complainant by the petitioners' sister or not ? At the time of taking cognizance, the Magistrate was concerned only with the issue whether the ingredients of Section 406 IPC are made out or not ? Section 406 deals with punishment for criminal breach of trust. Section 405 defines the criminal breach of trust which is as under : Section 405 : Criminal Breach of Trust :- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust". A bare perusal of the statements of the complainant and of his witnesses does make out a prima facie case for offence under Section 406 IPC. Thus, the Magistrate is certainly justified in taking cognizance against the accused-petitioners. Hence, this Court does not find any illegality or any perversity in the impugned order dated 02.04.2009. 4 The learned counsel for the petitioners has prayed that the petitioners be permitted to raise their contentions before the learned trial court at the time of framing of the charge. Such a liberty need not be given by this Court, as it is the right of the accused to raise all the contentions before the learned trial court at the time of framing of the charge. With these observations, this petition is dismissed. Consequently, the stay petition is also dismissed. (R.S.CHAUHAN)J. Manoj Solanki-