SB Cr. Misc. Petition No.168/2004 Ramesh Narayan Mathur Vs. Girish Mathur & Anr. { 1 } S.B. Cr. Misc. Petition NO.168/2004 Ramesh narayan Mathur vs Girish Mathur & Ors. DATE OF ORDER : - 7.7.2008 HON'BLE MR. PRAKASH TATIA, J. Mr. Narendra Thanvi for Mr. Manoj Gehlot, for the petitioner. Mr. JPS Choudhary, PP. <><><> The petitioner lodged criminal complaint against the non-petitioner where his statement was recorded and, thereafter, by order dated 7th June, 2002 the learned Chief Judicial Magistrate dismissed the petitioner's complaint holding that there is no evidence on record in support of the allegation of committing offence under Section 406 and 420 IPC. The said order of the trial court dated 7th June, 2002 was challenged by preferring revision petition before the court of Addl. Sessions Judge, which was decided by the Addl. Sessions Judge NO.1, Jodhpur vide order dated 2nd June, 2003, hence, this misc. Petition under Section 482 Cr.P.C. SB Cr. Misc. Petition No.168/2004 Ramesh Narayan Mathur Vs. Girish Mathur & Anr. { 2 } According to learned counsel for the petitioner, the non-petitioner from beginning had intention to cheat the petitioner and by mis- representing that the property in question is clear and the non-petitioner had right to alienate the property persuaded the petitioner to make part payment of huge amount of Rs.7,31,000/- and the non-petitioner entered into written agreement and assured that he will get the family settlement and, thereafter, transfer the land to the petitioner. According to learned counsel for the petitioner, the non-petitioner did not get the family settlement done so as to transfer the land to the petitioner. He in fact, did not disclose the most important relevant fact that the property in question was the Doli land and was not belonging to the non-petitioner, thereby he cheated and committed offence under Section 420 IPC also in addition to the offence under Section 406 IPC. Learned counsel for the petitioner submitted that so far as the present case is concerned, there was reasonable reason for the petitioner to believe the statement of the non- petitioner-accused who was knowing well that the SB Cr. Misc. Petition No.168/2004 Ramesh Narayan Mathur Vs. Girish Mathur & Anr. { 3 } property was not belonging to him. Even he had no intention to act upon the agreement, therefore, he did not obtain the family settlement if he believed that property belongs to his family or his ancestors. It is also submitted that the agreement was placed on record and the complainant gave his statement which fully proved the commission of offence by the non-petitioner so as to take cognizance against the non-petitioner by the court. I considered the submissions of learned counsel for the petitioner and perused the statement of the complainant himself. It appears from the evidence given by the petitioner himself that it is a matter where the assurance was given to the petitioner by the non-petitioner that he will transfer the property in his favour after obtaining the family settlement. It appears that according to the petitioner, the non-petitioner did not act upon the agreement. The complainant in his statement before the trial court given on 21st March, 2002 stated that the land is Doli land and the trial court observed that some efforts were made by the petitioner for getting the SB Cr. Misc. Petition No.168/2004 Ramesh Narayan Mathur Vs. Girish Mathur & Anr. { 4 } property in his name but the accused refused to honour the agreement. In the agreement it is mentioned that possession was delivered to the complainant, but complainant stated that possession was not given to him. In view of the above reasons, if the two courts below have reached to the conclusion that from evidence prima facie no case is made out under Section 406 and 420 IPC, I do not find that non-proceeding against the accused is abuse of process of the court in the facts of the case. Hence, this misc petition is hereby dismissed having no merit. (PRAKASH TATIA), J. c.p.Goyal/-