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Quimagrao JaIn Vs. Rasiklal Dave and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 834 of 1980
Judge
Reported in1982(1)BomCR756
ActsIndian Penal Code (IPC), 1860 - Sections 403 and 420
AppellantQuimagrao Jain
RespondentRasiklal Dave and anr.
Appellant AdvocateV.V. Kamat, Adv.
Respondent Advocate B.Y. Deshmukh, P.P. ;A.V. Ghate, Adv. for respondent No. 1
Excerpt:
- - aggrieved by the said order the complainant carried the matter further and the additional sessions judge in a fairly well written and considered judgment discussed various aspects of the complainant's case and the order of the magistrate and held that the complainant had made out a prima facie case for issue of process and that the order of the learned magistrate is patently illegal. 5. i have already observed that the magistrate has failed to properly understand the implication of the various clauses of the agreement......court of sessions, greater bombay. the said application was filed against the order passed by the learned additional chief metropolitan magistrate, 9th court, bandra shri m.d. mathkar in case no. 9-ir/79. a few facts may be stated. the revision petitioner before me is the accused in the said criminal case and against whom one rasiklal dave the 1st respondent before me filed a complaint under sections 420 and 403 of the indian penal code. the accused has property called jain cottage, at plot no. 603, t.p.s. iii, bandra. somewhere in february 1979 after negotiations an agreement was entered into between the complainant rasiklal dave as a builder and the accused as a owner. it would appear that when inquiries were made for investigating the title of the accused to the property and inter.....
Judgment:

S.K. Desai, J.

1. This revision is preferred against the order of the Additional Sessions Judge, Greater Bombay in Criminal Revision Application No. 187 of 1980, filed before the Court of Sessions, Greater Bombay. The said application was filed against the order passed by the learned Additional Chief Metropolitan Magistrate, 9th Court, Bandra Shri M.D. Mathkar in Case No. 9-IR/79. A few facts may be stated. The revision petitioner before me is the accused in the said criminal case and against whom one Rasiklal Dave the 1st respondent before me filed a complaint under sections 420 and 403 of the Indian Penal Code. The accused has property called Jain Cottage, at Plot No. 603, T.P.S. III, Bandra. Somewhere in February 1979 after negotiations an agreement was entered into between the complainant Rasiklal Dave as a builder and the accused as a owner. It would appear that when inquiries were made for investigating the title of the accused to the property and inter alia 7/12th extract obtained, the complainant claims to have come to know of a prohibitory order on this property. According to the said prohibitory order, the accused was prohibited and restrained from transferring or changing the property in any way and all persons were prohibited from taking any benefit under such transfer or change. According to the complainant, the fact of the prohibitory order was suppressed and by such deliberate suppression the complainant was induced to enter into a contract and pay Rs. 20.000/-, spend an additional amount of Rs. 12,180/- for architect's fees and Rs. 2,820/- for sundry expenses.

2. As far-as Rs. 20,000/- is concerned, the story put by the complainant is somewhat odd and the order of the learned Magistrate perhaps could have been upheld that had been the only amount given by the complainant to the accused, which amount according to the complainant was lent by him to the accused for the marriage of his daughter.

3. The learned Magistrate, however, with respect, does not seem to have properly understood or appreciated the clauses of the agreement. In particular, his views expressed in the penultimate paragraph of the order that the complainant has been in fully protected by Clause 8 does not appear to be correct. Similarly, his understanding of the implication of Clause 7 is totally faulty.

4. In the view that he expressed as stated earlier, the learned Additional Chief Metropolitan Magistrate held that no criminal offence is disclosed and the complaint was dismissed. Aggrieved by the said order the complainant carried the matter further and the Additional Sessions Judge in a fairly well written and considered judgment discussed various aspects of the complainant's case and the order of the Magistrate and held that the complainant had made out a prima facie case for issue of process and that the order of the learned Magistrate is patently illegal. It is the correctness of the approach of the Additional Sessions Judge and his conclusion that is impugned in the revision application.

5. I have already observed that the Magistrate has failed to properly understand the implication of the various clauses of the agreement. His judgment suffers from a complete misunderstanding of the commercial position. Obviously, the accused had in my opinion, indulged in commercial dishonesty. The question to be considered and which has to be considered at the end of the trial after evidence is led is whether such dishonesty amounts to cheating as understood in criminal law or whether any other offence is disclosed. I am in full agreement with the observations of the learned Additional Sessions Judge that there is a prima facie case for issue of process and that the order of the learned Magistrate is patently illegal, h may be observed that the Magistrate was directed to issue process only under section 420 of the I.P.C. with which direction also I am in full agreement. In the result, I find that there is no substance in this criminal revision application and hence the same will stand rejected. Rule discharged, stay granted to stand vacated.


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