{"id":73427,"date":"2010-02-04T00:00:00","date_gmt":"2010-02-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/somnath-dubey-vs-state-of-u-p-on-4-february-2010"},"modified":"2016-06-06T12:14:55","modified_gmt":"2016-06-06T06:44:55","slug":"somnath-dubey-vs-state-of-u-p-on-4-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/somnath-dubey-vs-state-of-u-p-on-4-february-2010","title":{"rendered":"Somnath Dubey vs State Of U.P. on 4 February, 2010"},"content":{"rendered":"<div class=\"docsource_main\">Allahabad High Court<\/div>\n<div class=\"doc_title\">Somnath Dubey vs State Of U.P. on 4 February, 2010<\/div>\n<pre>Case :- U\/S 482\/378\/407 No. - 639 of 2009\n\nPetitioner :- Somnath Dubey\nRespondent :- State Of U.P.\nPetitioner Counsel :- Amarjeet Singh Rakhra\nRespondent Counsel :- Govt. Advocate\n\nHon'ble Ashok Srivastava,J.\n<\/pre>\n<p>The petitioner, as a complainant filed a complaint against the opposite party<br \/>\nno.2 R. P. Singh before the Special C.J.M.(Customs), Lucknow which was<br \/>\nunder sections 406\/323\/504\/506\/420 IPC. The learned Magistrate examined<br \/>\nthe petitioner-complainant under section 200 Cr.P.C. He also examined a<br \/>\nwitness under section 202 Cr.P.C. and after hearing the complainant and<br \/>\nexamining the oral as well as the documentary evidence filed by the<br \/>\ncomplainant before him, the learned Magistrate vide his order dated 19.8.2008<br \/>\ndismissed the complaint under section 203 Cr.P.C. Feeling aggrieved by the<br \/>\ndismissal and discharge order the petitioner preferred a Criminal Revision no.<br \/>\n354 of 2008. The revision was heard by the Court of learned Additional<br \/>\nSessions Judge, Court No.8, Lucknow and was dismissed. Feeling aggrieved<br \/>\nby both the orders the present petition under section 482 Cr.P.C. has been<br \/>\nfiled.\n<\/p>\n<p>This matter pertains to an incident that took place in the year 2007. Opposite<br \/>\nparty no.2 is a property dealer. The petitioner approached him to purchase<br \/>\nplot no.536 having its area as 1 Bigha, 18 Biswas &amp; 3 Biswanis . The property<br \/>\nbelonged to one Rama Nand Tripathi. An agreement was arrived into between<br \/>\nthe parties and it was agreed that the said plot would be sold to the petitioner<br \/>\nfor a sum of Rs.8.00 lacs. The petitioner drew an account payee cheque for a<br \/>\nsum of Rs.8.00 lac and offered it to opposite party no.2 who declined to<br \/>\naccept the cheque and asked the petitioner for a bearer cheque for a sum of<br \/>\nRs.2.00 lac only. Therefore the petitioner drew a bearer cheque for Rs.2.00 lac<br \/>\nand handed it over to the opposite party no.2 who got it cashed. Thereafter the<br \/>\npetitioner met opposite party no.2 a number of times and requested him for<br \/>\nthe execution of sale deed. Opposite party no.2 kept on lingering the<br \/>\nexecution on one pretext or the other and ultimately, on one day, he flatly<br \/>\nrefused to get the sale deed executed in petitioner&#8217;s favour. He also refused to<br \/>\nreturn the money which he had accepted from the petitioner through the<br \/>\nbearer cheque. When the petitioner insisted for return of money in presence of<br \/>\n the witness, opposite party no. 2 assaulted the petitioner, abused him and<br \/>\nthreatened him to kill. The petitioner approached the police but in vain.<br \/>\nThereafter he filed a complaint before the learned Magistrate. The fate of the<br \/>\ncomplaint and a consequent revision has already been mentioned above.<br \/>\nThis case was listed on 18.1.2010 for hearing. On that date none was present<br \/>\nfor opposite party no.2 even after the list was revised. Opposite party no.2 has<br \/>\nbeen served personally with the notice sent by this Court. Therefore, on that<br \/>\ndate learned counsel for the petitioner and the learned AGA were heard on<br \/>\nmerits.\n<\/p>\n<p>It has been submitted from the side of the petitioner that the petitioner had led<br \/>\nsufficient oral as well as documentary evidence before the learned Magistrate<br \/>\nand the learned Magistrate on the basis of the same ,should have issued<br \/>\nsummons to opposite party no.2 as a clear cut case under sections 420,406<br \/>\nIPC and also under sections 323, 504, 506 IPC was made out against him. By<br \/>\nnot doing so the learned Magistrate has committed illegality. It has further<br \/>\nbeen submitted that the learned Magistrate has erred while holding the view<br \/>\nthat the papers filed by the petitioner in support of his complaint should have<br \/>\nbeen proved in accordance with the norms, prescribed under the Evidence<br \/>\nAct. It has also been submitted that the learned Magistrate has adopted a<br \/>\nperverse view while dismissing the complaint.\n<\/p>\n<p>Assailing the judgment and order passed by the learned Sessions Judge in the<br \/>\nabove mentioned criminal revision it has been submitted from the side of the<br \/>\npetitioner that the same is bad in the eyes of law as the learned Sessions Judge<br \/>\nhas failed to appreciate the underlying principles of law relating to such<br \/>\nmatter. It has also been submitted that the learned revisional court while<br \/>\nexercising powers under section 397 Cr.P.C. has committed a lot of<br \/>\nillegalities and he has failed to exercise his powers in a just, proper and<br \/>\nlogical manner.\n<\/p>\n<p>The learned AGA has opposed this revision by saying that both the orders are<br \/>\nflawless and that the revision should be dismissed.\n<\/p>\n<p>From the perusal of the record it is evident that the petitioner had examined<br \/>\nhimself under section 200 Cr.P.C. and produced one witness under the<br \/>\nprovisions of section 202 Cr.P.C. he had filed two papers before the learned<br \/>\nMagistrate during the course of enquiry which are (i) receipt issued by<br \/>\nopposite party no.2 and (ii) a certificate issued by the bank indicating that<br \/>\n cheque number 865233 dated 16.1.2006 was issued by the petitioner<br \/>\nfavouring opposite party no.2 for a sum of Rs.2.00 lac which was paid to the<br \/>\nholder of the cheque on the same date.\n<\/p>\n<p>From the perusal of the impugned order passed by the learned Magistrate it is<br \/>\nevident that the main reasoning on the basis of which he has discharged<br \/>\nopposite party no.2 under section 203 Cr.P.C. is that the petitioner knew since<br \/>\nbefore that the land in question is not the property of opposite party no.2<br \/>\ndespite the petitioner handed him over a cheque for Rs.2.00 lac and therefore,<br \/>\nit can not be said that opposite party no.2 had cheated the petitioner. The<br \/>\nlearned Magistrate in his impugned order has mentioned that the receipt said<br \/>\nto have been issued by opposite party no.2 showing that he had received the<br \/>\ncheque is not admissible because the same has not been proved in accordance<br \/>\nwith the provisions of Indian Evidence Act. This is second ground of<br \/>\ndischarge by the learned Magistrate. The third ground of discharge is that<br \/>\nthere was no written agreement between the petitioner and opposite party no.2<br \/>\nfor sale of the land in question and it was only oral. The fourth ground is that<br \/>\nthe papers relating to the land in question were in the name of one Rama Nand<br \/>\nTripathi and not in the name of opposite party no.2.\n<\/p>\n<p>in the above reference I have to say that the learned Magistrate while dealing<br \/>\nwith the matter forgot to take into consideration the following facts and<br \/>\nquestions:-\n<\/p>\n<blockquote><p>                   1. Why opposite party no.2 had specifically asked the<br \/>\n                      petitioner to give him a bearer cheque for Rs.2.00 lacs.<br \/>\n                      In such matters fairness demands that cheque should be<br \/>\n                      an account payee cheque as it always happens in fair<br \/>\n                      dealings.\n<\/p><\/blockquote>\n<blockquote><p>                   2. The conduct of opposite party no. 2. The cheque was<br \/>\n                      given to opposite party no.2 by the petitioner and the<br \/>\n                      former accepted the same and either he (opposite party<br \/>\n                      no.2) got it cashed or gave it to some one to get it<br \/>\n                      cashed.\n<\/p><\/blockquote>\n<blockquote><p>                   3. If there was no bad intention on the part of opposite<br \/>\n                      party no.2 why did he accept the cheque, thereafter got<br \/>\n                      it cashed and why did he not return the money to the<br \/>\n                      petitioner despite the fact that the land in question was<br \/>\n                       sold away to some other person.\n<\/p><\/blockquote>\n<p>The reasonings given by the learned Magistrate while discharging the accused<br \/>\nof the case appears to this Court altogether absurd. He has disposed of the<br \/>\ncomplaint of the petitioner without appreciating in a proper and logical<br \/>\nmanner the facts of the case. He should have considered the conduct of<br \/>\nopposite party no.2 as reflected in the complaint, oral evidence adduced and<br \/>\nthe papers produced before him in this case, but he has not done so.<br \/>\nIt is well settled that at the stage of inquiry the Magistrate has only to decide<br \/>\nwhether there is sufficient ground to proceed and not whether there is<br \/>\nsufficient ground for conviction. Whether the evidence is adequate for<br \/>\nsupporting the conviction can be determined only at the trial and not at the<br \/>\nstage of inquiry. It has been so held by the Apex Court in (2004) 4 SCC 432,<br \/>\nJagdish Ram Vs. State of Rajasthan and (2003) 4 SCC 139, Dy. Chief<br \/>\nController of Imports and Exports Vs. Roshan Lal Agrawal.<br \/>\nThe underlying object of the inquiry under section 202 Cr. P.C. is to ascertain<br \/>\nwhether there is prima facie case against the accused. The scope of inquiry<br \/>\nunder section 202 Cr.P.C. is extremely limited. At that stage, what a<br \/>\nMagistrate is called upon to see is whether there is sufficient ground for<br \/>\nproceeding with the matter, and not whether there is sufficient ground for<br \/>\nconviction of the accused. It has been so held by the Supreme Court in the<br \/>\ncase of Chief Enforcement Officer Vs. Videocon International Ltd. (2008)<br \/>\n2 SCC 492.\n<\/p>\n<p>In (2002) SCC 241, S.W.Palanitkar Vs. State of Bihar the Apex Court has<br \/>\ndefined the word &#8216;Suffiicient Ground&#8217; occurring in Sections 203 &amp; 204<br \/>\nCr.P.C. Sufficient ground has to be construed to mean the satisfaction that a<br \/>\nprima facie case is made out against the accused and not for the purpose of<br \/>\nconviction.\n<\/p>\n<p>In Balraj Khanna Vs. Moti Ram (1971) 3 SCC 399 the Supreme Court has<br \/>\nheld that &#8221; the object of the provisions of Sec. 202 Cr.P.C. is to enable the<br \/>\nmagistrate to form an opinion as to whether the processes should be issued or<br \/>\nnot. At that stage what the Magistrate has to see is whether there is evidence<br \/>\nin support of the allegations made in the complaint and not whether the<br \/>\nevidence is sufficient to warrant conviction. The function of the Magistrate<br \/>\nholding a preliminary inquiry is only to be satisfied that a prima facie case is<br \/>\nmade out against the accused on the material placed before him by the<br \/>\n complainant.&#8221;\n<\/p>\n<p>The learned Magistrate has also erred while holding the view that at the stage<br \/>\nof inquiry under section 202 Cr. P.C. the documents produced by the<br \/>\ncomplainant should be proved strictly in accordance with the provisions as<br \/>\nlaid down in Indian Evidence Act. He should not have forgotten that he was<br \/>\nonly making an inquiry in the case so as to decide whether there is sufficient<br \/>\nground for proceeding or not, but here he had stepped ahead and behaved in a<br \/>\nmanner that if he was holding trial of the case.\n<\/p>\n<p>The discharge order of the learned Magistrate is silent regarding the<br \/>\nallegations levelled by the petitioner in his complaint against opposite party<br \/>\nno.2 relating to alleged offences punishable under sections 323\/504\/504 IPC.<br \/>\nHe should have also considered these facts, but he has not done so.<br \/>\nIn the above circumstances I have no hesitation in holding that the impugned<br \/>\norder passed by the learned Magistrate is bad in the eyes of law and should be<br \/>\nquashed.\n<\/p>\n<p>I am surprised to peruse the judgment and order passed by learned Additional<br \/>\nSessions Judge in revision. He has decided the revision as if he was deciding a<br \/>\ncivil revision and not a criminal one. It appears that he too forgot the relevant<br \/>\nprovisions of law which deal such matters. There is a fine distinction between<br \/>\nthe offence punishable under sections 420\/406 IPC on one hand and civil<br \/>\nliabilities of the person accused, on the other hand. But this distinction is<br \/>\nalways distinctly visible provided one tries to see it and makes an effort for<br \/>\nthe same. From perusal of the revisional order impugned here it is evident that<br \/>\nthe learned Additional Sessions Judge has made absolutely no effort to find<br \/>\nout this distinction. It is expected of an additional sessions judge that he<br \/>\nshould be more conversant about laws as compared to a magistrate. In the<br \/>\ninstant case it appears that the learned Additional Sessions Judge has blindly<br \/>\nfollowed the findings given by the learned Magistrate without going deep into<br \/>\nthe matter.\n<\/p>\n<p>On the basis of the foregoing discussions, I am also of the view that the<br \/>\njudgment and order passed by the learned Additional Sessions Judge in<br \/>\nrevision is also bad in eyes of law and should be quashed.<br \/>\nI have given a serious thought to the entire matter and after considering the<br \/>\nover all circumstances of the case I am of the view that the matter should be<br \/>\nremanded back to the learned Chief Judicial Magistrate, Lucknow for<br \/>\n considering afresh the complaint dated 30.1.2008 filed by the petitioner as the<br \/>\ncomplainant before the learned Special Chief Judicial Magistrate (Customs),<br \/>\nLucknow. The learned C.J.M. is directed either to dispose of the matter<br \/>\nhimself or transfer it to some other competent court other than the court of Sri<br \/>\nSuresh Chandra, Special C.J.M. (Customs), Lucknow. The learned C.J.M. or<br \/>\nthe learned Magistrate to which the said complaint case may be transferred is<br \/>\ndirected to dispose of the matter at the earliest.\n<\/p>\n<p>The petition is allowed. Both the orders impugned in this petition are quashed<br \/>\nand set aside. The matter is remanded back to the learned C.J.M., Lucknow<br \/>\nwho will deal with the matter in the light of the observations made by this<br \/>\nCourt above.\n<\/p>\n<p>Order Date :- 4.2.2010<br \/>\nIA\n <\/p>\n","protected":false},"excerpt":{"rendered":"<p>Allahabad High Court Somnath Dubey vs State Of U.P. on 4 February, 2010 Case :- U\/S 482\/378\/407 No. &#8211; 639 of 2009 Petitioner :- Somnath Dubey Respondent :- State Of U.P. Petitioner Counsel :- Amarjeet Singh Rakhra Respondent Counsel :- Govt. Advocate Hon&#8217;ble Ashok Srivastava,J. The petitioner, as a complainant filed a complaint against the [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-73427","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Somnath Dubey vs State Of U.P. on 4 February, 2010 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/somnath-dubey-vs-state-of-u-p-on-4-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Somnath Dubey vs State Of U.P. on 4 February, 2010 - Free Judgements of Supreme Court &amp; 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