Mohammad Usman vs Rajesh Saili

Dharam Veer, J.—Heard Mr. Tumul Nailwal, Advocate for the applicant and perused the record.

By means of this petition, moved u/s 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the applicant has sought quashing of the summoning order dated 3.3.2008 passed by Special Judicial Magistrate, Khatima as well as the proceedings of Criminal Case No. 543 of 2009, Rajesh Saili v. Mohd. Usman, relating to offence punishable under Sections 420/406 of The Indian Penal Code, 1860 (for short, IPC).

Brief facts of the case are that respondent filed a complaint against the applicant before Special Judicial Magistrate, Khatima, District Udham Singh Nagar, stating that for purchasing a plot No. 171 from the applicant on the sale consideration of Rs. 2,21,000/ -, an agreement was executed between the respondent and the applicant on 24.2.2006, in pursuance of which, the applicant received cash of Rs. 21,000/ - towards earnest money and Rs. 2.00 lacs by way of cheque and it was decided that the sale deed will get executed upto 5.5.2006, but subsequently, it came into the knowledge of the respondent that the applicant has executed sale deed in favour of one Jyoti Prasad. Thereafter the respondent demanded his money from the applicant but the applicant did not return his money and kept lingering him on one pretext or other. With the same averments, the respondent filed the present complaint against the applicant in the court. In support of his complaint, the complainant got himself examined u/s 200 Code of Criminal Procedure and u/s 202 Code of Criminal Procedure Harish Kumar Taneja, Sarvesh Kumar Rastogi and Jyoti Prasad were examined. After hearing learned Counsel for the complainant and perusing the entire material available, learned Special Judicial Magistrate, Khatima vide his order dated 3.3.2008, summoned the applicant under Sections 406/420 IPC. Feeling aggrieved, the applicant has preferred the present C482 petition before this Court.

From a perusal of the contents of the complaint and the statement of complainant recorded u/s 200 Code of Criminal Procedure and that of witnesses, namely, Harish Kumar Taneja, Sarvesh Kumar Rastogi and Jyoti Prasad, recorded u/s 202 Code of Criminal Procedure and after going through other papers available in file, I am of the view that prima facie a case under the aforesaid sections is made out against the applicant.

Even otherwise, the trial court will decide the case after recording the evidence of the complainant as well as of the accused and also on the basis of the appreciation of the evidence as per law. It is well settled that while exercising jurisdiction u/s 482 of the Code of Criminal Procedure, this Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial court. If the allegations made in the complaint and the statement of complainant and witnesses recorded u/s 200 and 202 Code of Criminal Procedure respectively are taken at their face value and accepted in their entirety, I am of the view that the applicant has rightly been summoned by the trial court. The trial court will decide the case after recording the evidence adduced before it. I am of the view that in the present case there is neither any miscarriage of justice nor any abuse of process of court.

For the reasons recorded above, there is no force in the application. The C482 application is devoid of merit and is therefore dismissed in limine.