H.C. Goel, J.
1. This is a revision petition against the order of Shri H.P. Bagchi, Additional Sessions Judge, Delhi dated October 25,1983 by which he discharged Mani Madhukar and his wife, Rachna Mani, accused/respondents 2 and 3 in the police challan case as filed by the Karol Bagh police against the two accused persons for the offence punishable under Section 420/34 IPC. The prosecution case stated in brief is that the wife of Dr. O.P. Bhargava, complainant, and Rachna Mani, accused No. 2, were known to each other for a couple of years prior to May 1982. They both hail from Jaipur and they also used to meet each other at the television studio where they both used to give some programmes. Dr. O.P. Bhargava, complainant, is a reputed cardiologist of Delhi. Mani Madhukar, accused No. 1 is a writer of Hindi poetry and got recognition for some work of his from the Hindi Sahitya Academy. Some time in the beginning of May 1982, Rachna mani accused told Mrs. Kamla Bhargava that her husband Mani Madhukar accused is an expert palmist. The complainants in those days were having some problems from their tenant of the out-house of their kothi. Mrs. Kamla Bhargava went to the house of the accused. She was told by Mani Madhukar accused that she should leave her palm prints as also that of her husband with him and he would study them and then let them know the exact position as regards their problems. Mrs. Kamla Bhargava handed over the palm prints of her husband, Dr. O.P. Bhargava, to Mani Madhukar on May 4, 1982. On May 7, 1982 the complainant Mrs. Bhargava received a telephonic call from Rachna Mani. She told her to come to their house along with her husband Dr. Bhargava as there was an urgent thing to be talked over to them. Dr. Bhargava and Mrs. Bhargava then went to the house of the accused at about 9.00 p.m. on that day. Mani Madhukar accused told them that there was a likelihood of Dr. Bhargava being involved in an accident soon after may 11, 1982 wherein he may suffer a head injury and that their children were also in danger. Both the complainants were taken in and got scared by the prophecy made by accused No. 1. Mani Madhukar, however, pacified them by telling them that he has a remedy for their ill-luck. Mani Madhukar told the two complaints that they will have to wear some stones to ward off the injury. Further that he had no faith in the Indian stones and there were Arabic stones which are needed for the purpose. He wrote down the two names of stones in the diary of Dr. Bhargava in Hindi and told them to try if they could be available from Delhi Market. The complainants were told that they must wear the two stones on the night between May 11/12, 1982 between 12.00 mid night to 3.00 a.m. The complainants checked up from the leading jewelers of Delhi if those stones could be made available to them. They were, however told that they had not heard the names of any such stones. Mani Madhukar gave the estimate of the price of the two stones to the complainant which was written by Dr. Bhargava in his diary below the names of the stones as written by Mani Madhukar in his dairy. Mani Madhukar on being told by the complainants that the stones were not available at Delhi told the complainants that he had a friend at Hyderabad who is very well off and that he would check up from him on telephone from an official telephone in his neighborhood if they were available with him. Mani Madhukar range up the complainant on May 11.1982 at about 5.00 p.m. and told them that he has succeeded in getting the stones and that the two stones would be brought to Delhi by an Air Force Officer in the flight that reaches Delhi at about 10.00 p.m. On the morning of May 11, 1982 Mani Madhukar gave a list of samagri for pooja to Mrs. Bhargava. Mrs. Bhargava purchased a piece of pure silk khadi cloth from Khadi Gram Udyog and the samagri from Roopak Store and Shiv Shakti Ayurvedi Bhandar. On May 11, 1982 at about 9.20 p.m. they went to the house of the accused from Hyderabad Along with the stones with him. Accused No. 1 then told the complainant that the gentleman might take some time in getting clearance at the airport and they should pay to him the amount towards the price of the stones as the same has to be paid to the gentleman from Hyderabad who has to go back to Hyderabad by the morning flight on the next day. The accused has already given the estimate about the price of the two stones. Dr. Bhargava had withdrawn a sum of Rs. 45,000/- from Skipper Sales private Limited with whom they had deposited that amount in connection with the booking of a flat through their Chartered Accountant Mr. B.L. Khanna on the morning of May 11, 1982. The complainants brought Mani Madhukar along with them to their house. They paid a sum of Rs. 48,666.00 in cash to him. They came back with Mani Madhukar to his house and waited there up to 12.00 mid night for taking the stones. None, however, reached at the house of the accused till 12.00 mid night on which they came back to their home. The next morning the complainants got in touch with the accused on telephone. Mrs. Bhargava was told by Rachna Madhukar , accused NO. 2, that the stones has been received. They went to the house then showed the two piece of stones to the complainants. He told them that they should see the stones carefully as they would not be able to see them later in their life. The two stones were then stitched in two separate pieces of cloth by the accused and were delivered to the complainants. Mani Madhukar also gave a piece of paper on which some mantra was written. Dr. Bhargava was told to chant that mantra daily at the time of their pooja. The complainants were also told by the accused that they should not talk over to anyone else about the value of the stones as they would reduce the efficacy of the stones. The complainants were also told that the pooja would continue for six months and that the stones should be returned by the complainants to him on the night of June 3, 1982 and he will then purify them by chanting mantras and they would be delivered to the complainants on the next morning for being worn again thereafter. The further story of the prosecution as stated in the FIR is that Mrs. Bhargava started entertaining some doubts after May 13, 1982 and suspected that they might have fallen a prey to a wrong person. On May 17, 1982 she went to the house of the accused and told them that the stones were not suiting her. Mani Madhukar tried to convince her that it takes time to adjust the effect of the stones. The suspicion of Mrs. Bhargava further grew stronger. On her insistence Mani Madhukar told her that she came to his house on the next day and that he would take back the stones from her and would repay the amount taken by him as the price of the stones. In the afternoon of May 18, 1982 both the complainants went to the house of the accused. The accused told them that the amount had already been paid by him to the Hyderabad party. The accused, however handed over two cheques, one in the sum of Rs. 18,666/- issued by Mani Madhukar from his account and another in the sum of Rs. 30,000/- issued by Ugam Raj Mehta from the joint account of Rachna Madhukar, co-accused, and her father. The cheques were deposited. On May 24, 1982 the complainants knew that the cheque for Rs. 18,666/- has been encased but the payment of the other cheque for Rs. 30,000/- had been stopped by the drawers thereof. Both the complainants went to the house of the accused on that very day. Rachna Mani accused told them that her husband Mani Madhukar, had gone to Hardwar and would be back on May 26, 1982. On May 26, 1982 the complainant is got a registered letter from accused No. 1. In this letter Mani Madhukar came up with a novel story. He stated in the letter that he had delivered the cheque for Rs. 18,666/- to the complainant as advance for the purchase of the annexe of the house of the complainants. However, he later learnt that that was in the possession of a tenant with whom litigation was going on by the complainants/landlords and as such, he (accused No. 1) was no longer interested in the purchase of the house. Mani Madhukar demanded from the complainants the refund of the sum of Rs. 18,666/-. On this complainants were convinced that the accused have cheated them. On enquiries they learnt that accused No. 1 has similarly cheated a number of persons in Delhi. He had cheated some Marwari gentlemen at Calcutta also. The complainants contacted the SHO/Inspector B.N. Chopra, and SI Ashok Kumar of Police Station Rajinder Nagar in the evening and narrated the occurrence to them. They were told that they would look into the matter. SI Ashok Kumar went to the house of the accused on the morning of May 27, 1982. Accused No. 1 was, however, not available there. The complaint was then written by Mrs. Bhargava in her own hand on May 28, 1982 addressed to the SHO, Original Road Police Station, Karol Bagh, New Delhi. Accused No. 1 in the meantime is alleged to have approached the Commissioner of Police on whose intervention the Rajinder Nagar police did not take any action in the matter. The complainants then also saw the Commissioner of Police and submitted the said complaint dated May 28, 1982 to the SHO, Original Road Police Station, Karol Bagh, New Delhi. On June 3, 1982 a case registered against the two accused on the basis of that complaint. After the investigation of the case in which both the accused were also fully interrogated and some documents seized from them, the two accused were challaned under as 406/420/34 IPC.
2. Mr. R.L. Chugh, Chief Matropolitan Magistrate after hearing the APP for the state and the counsel for the accused passed an order dated July 20, 1983 holding that there was ground to presume that both the accused had committed the offence punishable under Section 420/34 IPC. He framed the charge against both the accused accordingly. Mr. H.P. Bagchi, Additional Sessions Judge accepted the revision against the order of Mr. Chugh and discharged both the accused. The State as also Dr. Bhargava, one of the two complainants, preferred separate revision petitions against the impugned order of Mr. Bagchi discharging the two accused.
3. I have heard Sodhi Teja Singh, learned Standing Counsel for the State and Mr. O.P. Soni, learned counsel for the complainant, and Mr. D.R. Sethi, learned counsel for the respondents, and was taken through the records of the case. I may say at the very outset that I find myself in complete agreement with the view taken by Mr. Chugh that there was a ground to presume that both the accused had committed the offence punishable under Section 420/34 IPC and the order of Mr. Bagchi reversing that order and discharging the two accused is wholly unsustainable and is a bad order. There is material gathered by the prosecution which clearly makes out a prima facie under Section 420/34 IPC against both the accused. The disputed writing i.e. noting down of the two names of the stones in Hindi in the dairy of the complainants 'Sangewah Sab' and 'Tushawa, marked as Q1 by the Government Examiner of questioned documents has been found by his to be in the hand-writing of Mani Madhukar, accused No. 1. The investigating agency also recorded the statements of the two jewelers, namely, Vimal Tandon and Joginder Singh. They have stated to the effect that Dr. Bhargava had contacted them and enquired from them towards the middle of May if the contacted them and enquired from them towards the middle of May if the said two stones were available with them. They had told him that they had not heard of any such stones. There is the statement of one Anil Kumar of Calcutta to the effect that the accused had been living at Calcutta in 1977-78 under the assumed name of padmanabhan there and he used to practice there as a tantrum and he suddenly disappeared from Calcutta in the year 1978. There is the March 1978 issue of Kadambni. At pages 147-149 of this book there is an article entitled 'Gomed Ki Sajeeti'. It is contributed by one Dr. Padmanabhan whose address of Calcutta was given there under. 'Gomed' is a well-known semi-precious stone. The Calcutta address of the author Dr. Padmanabhan as given on this article is the same where accused No. 1 used to reside in those days. This stands corroborated by an account opened by accused No. 1 in the Calcutta Bank in those days.
4. The prosecution has also collected evidence that the accused has written a book regarding stones. Mr. Sethi, learned counsel for the accused, furnished in his Explanationn the circumstances under which he accused No. 1 had written the names of the two stones in the dairy of Dr. Bhargava viz. That Dr. Bhargava had asked the accused No. 1 to copy out the names of the two stones in his dairy from a piece of paper on which these names were written and on this request of Dr. Bhargava accused No. 1 had only copied out the names of the two stones in the diary of Dr. Bhargava legibly which were not clearly written on the slip of paper. Although this is no stage for given a finding on the defense version, yet the court has scrutinize the stands of the two side and has to form a prima facie opinion in order to judge as to whether the version of the prosecution is convincing and how far that stands in the face of defense version that may be stated on the side of the accused. Not only that the version of the accused on the face of it does not seem to be having any substance, the material as gathered by the prosecution and as referred to be me already above goes to that the prosecution version has got substance and in any case that raises a strong suspicion about the guilt of the accused. The other material as relied upon by the prosecution also leads to the same conclusion. Mr. V.D. Puri is an Accountant of Skipper Sales Pvt. Ltd. who has stated in his statement that Dr. Bhargava withdrew as sum of Rs. 45,000/- in cash from his concern on 11-5-1982. This is also a piece of corroborative evidence to show that the accused required money on 11-5-1982 and that is why he withdrew the said sum from the builders Skipper Sales Pvt. Ltd. with whom Dr. Bhargava has deposited that amount for booking a flat in their proposed building. There are also other statements of Pws Nimi Gupta and Harish Gupta and of one Bibi Rani Chugh to the effect that they were also similarly cheated by accused No. 1. One Sushil Kumar, property broke, has stated to the police in his statement under Section 161 that Mani Madhukar approached him that he may depose to the police that he was negotiating a deal between Dr. Bhargava to accused No. 1. for the sale of annexe of Dr. Bhargava to accused No. 1 but that he had declined to do so as he never negotiated any such deal. This defense versions as given in the notice sent by accused No. 1. to Dr. Bhargava viz. that the latter had agreed to sell his annexe to the accused and the accused had delivered two cheques to Dr. Bhargava as advance, on the face of it, does not appear to be a convincing version. Some kind of agreement must have ordinarily been reduced to writing if the accused had agreed, to purchase any such property from Dr. Bhargava as advance or as earnest money as such transactions are normally reduced to writing incorporating the terms of the agreement. The reasons given by accused No. 1 in his notice for cancellation of the alleged agreement namely that Dr. Bhargava had represented to him that the annexe was lying vacant and the accused later found that that was untrue and that the annexe was in fact in the possession of the tenant is hard to believe. It does not appeal to reason that (sic) accused would not have been cared to find out for himself if the annexe of Dr. Bhargava was lying vacant or was in occupation of a tenant. It is obvious that there was ample material with the prosecution from which a prima facie case was clearly made out against the two accused for charging them under Section 420/34 IPC.
5. The learned Addl. Sessions Judge did not say anything in its impugned order about the prosecution evidence as stated by me above. Mr. Bagchi has only referred to some lacunae and draw-backs which, according to him, went to show that the case of prosecution deserved to be thrown out and the accused deserved to be discharged. Mr. Bagchi has first of all stated that the writing about the two figures of 27390 and 21278 and the third figure of total 46,666 marked as Q-11 by the examiner of questioned documents have not been found to be the writing of accused No. 1 Nothing at all turns on (sic). These figures clearly appear to be written with pen and ink different than (sic) writing marked as Q-1. This is not the case of the prosecution that the said figures were also written by accused No. 1 Next the prosecution collected (sic) piece of evidence that Mrs. Kamla Bhargava complainant had purchased a piece of cloth for Rs. 600/- from Punjab Khadi Gram Udyog, Karol Bagh, New Delhi on 11-5-82. The signatures of Mrs. Kamla Bhargava are appended on the cash memo and the carbon copy thereof in the cash memo book of the said firm. It was observed by Mr. Bagchi that this signatures of Mrs. Kamla Bhargava on the cash memo were made for creating false evidence against the accused. Similarly the observation made regarding another cash memo issued by one M/s. Godhi Mal Om Prakash dated 15-6-1982 showing the sale of some samigri to Kamla Bhargava, which according to her statement, was purchased by her for use in pooja to be got conducted by the accused No. 1. These two persons have to be examined as witnesses for the prosecution and they could not be dubbed as false witnesses at this stage. These witnesses can explain the circumstances under which the signatures of Mrs. Bhargava were obtained on the cash memos when they come in the witness box to depose as prosecution witnesses. It has next been observed in the impugned order that as per the prosecution case the sum of Rs. 48,666 as the price of two stones was disclosed by accused No. 1 to complainant in the evening of 11-5-82, but the sum of Rs. 45,000/- were withdrawn by Dr. Bhargava from M/s. Skippers Sales Pvt. Ltd. in the morning of 11-5-1982 and that showed that there was something fisher as regards the alleged withdrawal of Rs. 45,000 by Dr. Bhargava in the morning of 11-5-1982. This is also an observation having no substance. The case of the complainant is (sic) they had earlier been told by accused No. 1 the approximate price of the two stores. It is also worth noting that the alleged withdrawal of Rs, 45,000/- by Dr. Bhargava from M/s. Skippers Sales Pvt. Ltd. is duly supported by an Accountant of that firm and also by one Brij Lal Khanna, Chartered Accountant of Dr. Bhargava. Another criticism that has been leveled in the impugned order is that it appeared that the two cheques of Rs. 18,666 and of Rs. 30,000 were not deposited by Dr. Bhargava in his Bank from 18th May 1982 to 22nd May, 1982. There is no basis for this conclusion. The case of the prosecution is that one cheque was delivered to Dr. Bhargava on 19-5-82 and both of them were deposited by him in his account on 19-5-82, Mr. C.B. Kapur, Manager of the State Bank of India, Rajinder Nagar, New Delhi Branch has been cited as one of the prosecution witnesses and the position can be clarified from his statement at the appropriate stage i.e. at the trial of the case. It has next been observed in the impugned order that the investigation of the case has been most shod and slipshot. The police has been castigated for its inaction to recover the stones from the accused and to investigate if there was any pilot of the Indian Air force who might have brought the stones from Hyderabad. This criticism of the learn(sic) Additional Sessions Judge is rather amusing. The case of the prosecution is that the accused had played a hoax and the complainant had induced them to deliver the huge amount of Rs. 48,666 as price of two precious stones which were in fact ungracious stones. This is also not the case of the accused that he had actually passed on precious stones to the complainant and those stones were worth for Rs. 48,000 or so. He stated during the investigation that he had delivered the two cheques to the complainants as advance for the purchase of Dr. Bhargava's annexe. Under the circumstances there could be no question for the police to be able to recover stones from the accused. Similarly, the question of interrogating any pilot did not arise.
6. Mr. Sethi, learned counsel for the accused, apart from defending the observations of the learned Addl. Sessions Judge in his impugned order made some additional submissions. It was submitted that Dr. Bhargava is a highly educated persons, is a wellknown cardiologist of Delhi. His wife was equally educated person and it was difficult to believe that such persons would be cheated in the fashion in which the prosecution want us to believe. It was pointed out that Rajesh Khanna, a jeweler of Delhi in his statement to the police had told Dr. Bhargava (when the latter enquired from him about the purchase of two stones giving their names as told to him by the accused that there were no such stones know to him and that Dr. Bhargava should better not indulge in the kind of superstitions and wearing of stones as alleged. The suggestion is that it was difficult to believe that the complainant would have gone ahead in purchasing two stones from the accused for the high price of Rs. 48,000/- even being cautioned by Rajesh Khanna, PW. No doubt it (sic) unfortunate and equally surprising that educated persons like the two complainants should have been led to believe as has been stated by them. But then it is not uncommon that even educated persons sometime fall a prey to the clever design of some unscrupulous persons and they even lose their balance of mind in certain situation such as when they are told about any impending calamity on their family members. It is worth noting that both the accused are not men of straw. Accused No. 1 is a known writer of Hindi poetry and is an award winner from Sahitya Academy. One of his works 'The poetry of Mani Madhukar' priced at Rs. 45/- is one of the documents as relied upon by the prosecution. This copy was presented by accused No. 1 to Dr. Bhargava. Accused No. 2 is also an educated woman and has been giving some programmes on the Delhi television. Such like persons could certainly influence any person more than an ordinarily type of tantrum. It was next contended by Mr. Sethi that the stones have not been recovered by the prosecution in this case and in their absence it could not be said as to what was their value. The argument goes on that it may be that the stones were actually of the value of Rs. 48,666 and in that case the charge of cheating would not be made out against the accused persons. It was contended that thus without their being any evidence on the record to show that the two stones that were allegedly given by the accused to the complaints and were later returned by the latter to the former were actually not of the value of Rs. 48,666 and thus it could not be contended that the complainants were made to part with Rs. 48,666/- without a valuable consideration and hence on charge of cheating was made out. There is no merit in this contention. It was for the accused only to show that the two stones that they had given to the complainants were actually for Rs. 48,000 or so. That however, it not at all the case of the accused persons and the above contention is without any basis and has no legs to stand. There is also no basis for the contention as raised by Mr. Sethi that the investigation was one sided and was dishonest and that the version of the accused namely that the two cheques were given by them to the complainant as advance for the purchase of Dr. Bhargava's house was not properly investigated by the police. The police has duly took into possession the said letter dated 24-5-82 sent by the accused to the complainant by registered post and went into the question as to how far the contents thereof were correct. This in view of what has been said above clearly shows that the impugned order of the learned Additional Sessions Judge is wholly bad. The entire approach and treatment is fallacious. The impugned order is in fact is one sided and laboured order. It may also be stated here that the accused filed a complaint against Dr. Bhargava under Section 420 IPC for the latter's having cheated him of the sum of Rs. 18,666/- on the allegations which is defense version of the accused as given out during the investigation of this case. Dr. Bhargava was not summoned as an accused in that complaint and the complaint was dismissed by the Magistrate concerned under Section 203 of the Code of Criminal Procedure. A revision filed by the accused against that order of the Magistrate was dismissed by the court of the Additional Session Judge, Delhi after notice to Dr. Bhargava. Mr. Sethi stated that the accused had filed a Special Leave Petition against those orders to the Supreme Court on March 1, 1984 entered as S.L.P. (Crl) 776/84; but that petition has not as yet been listed for preliminary hearing. In conclusion. I accept this petition and quash the impugned order and restore the order of Mr. Chugh charging the two accused under Sections 420/34 IPC. The parties shall appear before the court of the Chief Metropolitan Magistrate on August 8, 1985 who shall proceed with the case in accordance with law. It may be stated that nothing stated in this order shall prejudice the case of the accused and the observations made in this order are solely for disposing of the present petition.