ORDER
Amareshwar Sahay, J.
1. Heard the parties.
2. The petitioner, who was arrayed as one of the accused in a complaint case filed by O.P. No. 2, has challenged the judgment dated 28.4.2003 of the Additional Sessions Judge, XIII, Dhanbad, whereby the learned Additional Sessions Judge reversed the order of learned trial Court, dismissing the complaint under Section 203, Cr PC and directed the learned trial Court to make further enquiry into the case for taking cognizance of the offence alleged in the complaint petition.
3. The facts in brief are that O.P. No. 2 Suresh Chandra Agrawalla filed a complaint petition before the Chief Judicial Magistrate, Dhanbad stating therein that he was the Power-of-Attorney holder of Ramesh Kumar Singhal, who purchased two Kathas of land of Plot No. 13, Khata No. 3 situated within Chirkunda police station from Smt. Sumitra Devi by virtue of a registered deed of sale on 6/11/2000 for a consideration of Rs. 1,05,000/-. It was alleged that prior to the execution of the said sale deed Smt. Sumitra Devi convinced the purchaser that two rooms on the aforesaid land was in occupation of Hafizullah (accused No. 2 in the complaint) and his son Md. Islam (Petitioner herein) who were tenants and they have promised to vacate the land on receipt of Rs. 10,000/- which was paid by the complainant to them.
4. It is said that after the purchase the complainant asked the accused Hafizullah and Md. Islam to vacate the premises under their occupation but Md. Islam, i.e. the present petitioner informed him that he was the owner of the said two rooms by virtue of purchase by registered sale deed executed by Smt. Sumitra Devi and he produced a registered sale deed before the complainant and then the complainant was surprised to learn that in fact Smt. Sumitra Devi had already sold a part of the land to Md. Islam and this fact was mischievously concealed by the accused persons. It was further alleged that in the complaint that in the sale deed which was executed by Smt. Sumitra Devi in favour of Ramesh Kumar Singhal the accused Md. Hafizullah, i.e. the father of the present petitioner also signed as a witness, which showed that the accused Md. Hafizullah and his son Md. Islam, i.e. the present petitioner connived with Smt. Sumitra devi in making and executing the said sale deed by giving fraudulent and false declaration.
5. In view of the above facts, it was alleged that the accused persons by means of fraudulent representation induced Ramesh Kumar Singhal to part with Rs. 10.000/- to accused Nos. 2 and 3, i.e. md. Hafizullah and his son Md. Islam and thereby committed the offence of cheating.
6. The trial Court held enquiry under Section 202, Cr PC and thereafter by order dated 7.9.2002 dismissed the complaint holding that since the land in question was already transferred to Md. Islam therefore, the vendor Smt. Sumitra Devi could not have transferred a better title than she herself had.
7. Being aggrieved with the said order of dismissal of complaint the complainant moved before the Session Judge in revision. The learned Additional Sessions Judge heard the revision application and held that on perusal of the oral and documentary evidence of the complainant adduced during enquiry under Section 202, Cr PC a prima facie case under Section 420 was made out and accordingly, by the impugned judgment the learned Additional Sessions Judge set aside the order of the learned Magistrate and directed to him to make further enquiry into the case.
8. The aforesaid judgment of the learned Additional Sessions Judge passed in the revision has been challenged by the present petitioner in this application.
9. The learned counsel for the petitioner Mr. Jitendra S. Singh, in support of the revision application has made three fold submissions. Firstly, that even if, the entire allegation made in the complaint petition and the evidence adduced on behalf of the complainant during enquiry under Section 202 Cr PC is accepted in its entirely, no case whatsoever is made out. Secondly, that even if, on the facts alleged, any case is made out under Section 420 IPC, the same at best can be said to be made out only against Smt. Sumitra Devi the vendor and Md. Hafizullah, who had put his signature as a witness in the sale deed executed by Smt Sumitra Devi in favour of Ramesh Kumar Singhal and not against the petitioner, and thirdly, that the learned Additional Sessions Judge has at one hand held that from perusal of the oral and documentary evidence adduced during enquiry under Section 202, Cr PC a prima facie case under Section 420, IPC is made out and then on the other hand has directed the learned Magistrate to make further enquiry into the case which was absolutely Illegal as he has already disclosed his mind regarding the existence of prima facie case.
10. One the other Mr. Mahesh Tewari the learned counsel for O.P. No. 2, relying on the decision in the case of State of Karnataka v. M. Devendrappa, reported in 2002 (1) East Cr C 392 : 2002 (1) JCJR 264 (SC) : (2002) 3 SCC 89, has submitted that this Court should not assume the role of the trial Court and embark upon an enquiry as to reliability of the evidence and sustainability of the accusation on a reasonable appreciation of such evidence. He further submitted that since the learned Additional Sessions Judge has only directed the learned trial Court to make further enquiry and, therefore, no interference is required by this Court in its revisional jurisdiction.
11. No doubt the Apex Court in the aforesaid case cited above on behalf of O.P. No. 2 has held that power possessed by the High Court under Section 482 of the Code, are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate promise. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot seen in their true perspective without sufficient materials.
12. But the Apex Court in the said very judgment cited above, in para-6, of its judgment has also held that in exercise of the powers of the High Court would be justified to quash any proceeding if it finds that the initiation/continuance of it amounts to abuse of as the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
13. In the present case, neither in the complaint petitioner in the evidence adduced by the complainant during enquiry under Section 202, Cr PC, it has been alleged that the present petitioner Md. Islam had any hand in commission of the offence alleged by the complainant. The misrepresentation, if any, has been alleged against Sumitra Devi the vendor who sold the land to the complainant. The allegation of receipt of Rs. 10,000/- was also alleged by the complainant against the other accused namely Md. Hafizullah who allegedly granted receipt of the said amount of Rs. 10,000/-. Even according to the complainant it was the other accused Md. Hafizullah who put his signature as a witness in the sale deed executed by Sumitra Devi in favour of the complainant.
Therefore, even if, on the facts alleged by the complainant no case of cheating or for commission of the offence under Section 420 IPC, is made out against the present petitioner.
14. I further find that the learned Additional Sessions Judge has committed illegality in expressing his opinion about existence of prima facie case under Section 420, IPC while remanding the case to the trial Court for further enquiry into the case. This would certainly prejudice the mind of the trial Court.
15. Considering the facts and circumstances of the case, this revision application is allowed and the order of the learned Additional Sessions Judge passed in revision is modified to the extent that the learned trial Court without being prejudiced by the order of the learned Additional Sessions Judge wherein it was held that the prima facie case under Section 420, IPC, is made out, shall make further enquiry under Section 202, Cr PC as to whether the materials already on record make out any prima facie case against the accused Smt. Sumitra Devi or Md. Hafizullah or not and then shall pass an appropriate order in accordance with law. So far as this petitioner, namely, Md. Islam is concerned, in view of the findings above the complaint against him is hereby quashed.
16. With the aforesaid observations and directions this application is allowed.