The High Court dismissed a criminal revision petition challenging an order of acquittal. The revisionist challenged an acquittal on charges of theft and criminal damage arising from a land transaction dispute pending civil litigation.
Revision petition dismissed; order of acquittal of respondent no.2 affirmed.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
:::
JUDGMENT
:::
S.B. Criminal Revision Petition No.261/2009 Harish Chandra. Vs. State of Rajasthan & Anr.
Date of Order :: 3 February, 2012.
HON'BLE MR. JUSTICE SANDEEP MEHTA
Mr.Bhagat Dadhich for Mr.Mridul Jain, for the petitioner. Mr.Sanjay Mathur, for the respondent no.2. Mr.Anil Joshi, PP for the respondent no.1 State.
BY THE COURT :
Heard learned counsel for the parties.
The instant revision petition has been preferred by the petitioner challenging the order dated 29.2.2008 passed by learned Chief Judicial Magistrate, Dungarpur in Criminal Original Case No.112/1998 whereby he has acquitted the respondent no.2 from the charges under Sections 447 and 427 IPC.
Succinctly stated the facts necessary for disposal of the petition are that the petitioner/complainant filed an F.I.R. at Police Station Kotwali, Dungarpur with the allegation that the petitioner had made an agreement to sell
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his plot no.8 in New Colony to the respondent no.2 and an agreement was entered into on 3.3.1997 but the possession of the plot was not given to the respondent no.2. The petitioner further alleged that the respondent no.2 was called for having the plot registered in June, 1997 in Dungarpur Tehsil but since only a sum of Rs.7 lakhs was given to the petitioner out of the total amount of Rs.10 lakhs, he did not agree to the registry being done and resultantly, the deal was deemed to be cancelled. The petitioner further alleged that on 1.4.1998, he received an intimation that the respondent no.2 is raising illegal construction over the plot in question, on which the petitioner sent Bhagwati, Raman Lal etc. but they were also threatened, on which he was led to file the F.I.R. On the F.I.R. being so submitted, it was registered as F.I.R. No.74/1998 and investigation commenced. At the conclusion of the investigation, the police filed charge-sheet against the respondent no.2 for the offences under Sections 447 and 427 IPC. The accused was read over the accusations and he pleaded not guilty and claimed trial. The prosecution examined nine witnesses and exhibited six documents in support of its case. The accused respondent no.2 in his statement under Section 313 Cr.P.C. submitted that he had purchased the plot in question from the petitioner and has constructed three shops. He submitted
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that complete payment of the transaction was made to the petitioner. The learned trial judge at the conclusion of the trial proceeded to acquit the respondent no.2 from the charges levelled against him by the impugned judgment. The trial judge held that the prosecution was guilty of not producing the I.O. in the witness box and proving the site inspection memo. The learned trial judge also observed that admittedly the major amount of sale proceeds has been received by the petitioner and a smaller part remained to be paid. The learned trial judge further held that the F.I.R. was highly belated and that civil matters were also pending in relation to the plot in question and thus, the accused was not guilty of trespass and causing damage to the plot in question.
Hence, being aggrieved by the impugned judgment, the petitioner has approached this Court by filing the present revision petition.
Assailing the impugned order, the learned counsel for the petitioner submitted that though the agreement was entered into between the parties but the possession thereof was not given to the accused and thus, the accused by entering into the plot in question and damaging the boundary wall and by raising construction thereupon has committed the offences under Sections 447 and 427 IPC and that the trial court had wrongly acquitted the accused
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from the charges.
Per contra, learned counsel for the respondent no.2 submitted that in this case, it is absolutely incomprehensible to believe that the accused would part with huge sum of Rs.7 lakhs without taking the possession of the plot in question. It is further submitted that the agreement was entered into on 3.3.1997 and on that day, one draft of Rs.2 lakhs was given to the petitioner and thereafter, the petitioner himself admits that he has received a sum of Rs.7 lakhs in all against the agreement. Thus, it is submitted that the remaining amount was only given to the petitioner after the possession was given to the accused. It is further submitted that a legal notice was admittedly issued by the respondent no.2 to the petitioner and in the said notice, the fact of possession having been handed over to the respondent no.2 and the respondent no.2 having started construction has been mentioned on 1.9.1997 itself. In the said notice, specifically it has been mentioned that the respondent no.2 is ready to make the payment of remaining Rs.3.50 lakhs for the purpose of having registry executed but it is the petitioner who is avoiding to have the registry executed. Thus, the respondent no.2 was very much entitled to enjoy the usages of plot which he has purchased. Thus, it is submitted that there is no reason available on the record to interfere
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in the well reasoned order of acquittal passed in favour of the respondent no.2.
I have given my thoughtful considerations to the arguments advanced at the bar and have perused the order impugned as well as the record of the case.
The legal notice issued by the respondent no.2 to the petitioner is available on the record as per which the respondent no.2 has intimated to the petitioner that he is raising a boundary wall on the plot in question. The said legal notice was issued on 1.9.1997 and the petitioner was given a notice to have registration of the plot in question done but the petitioner deliberately chose not to go through the registration of the agreement despite receiving the major portion of the amount of sale and despite the notice and desirousness of the respondent no.2 to make the registry by making the balance payment. Thus, it is apparent that from the material available on the record, the intention of the petitioner does not appear to be pious because it is he who avoided to execute the agreement entered into between the parties. The fact regarding the respondent no.2 having taken possession of the plot in question was mentioned in the notice issued on behalf of the respondent no.2 in September, 1997. In the notice, it is also mentioned that the respondent no.2 is raising construction on the plot in question. Thus, the story of the
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petitioner that the respondent no.2 took possession of the property in question in April, 1998 appears to be patently false and a concocted story. There was no reason for the petitioner to have waited for such a long time before filing the F.I.R. for the alleged trespass and damage to the property in question.
Thus, this Court feels that no interference is called for in the well reasoned order of acquittal of the respondent no.2 passed by the learned trial court.
In view of the above discussion, this revision petition, being bereft of any force, is hereby dismissed.
(SANDEEP MEHTA), J.
S.Phophaliya
2 issues framed by the court
Whether the High Court is justified in dismissing a revision petition against an order of acquittal where civil disputes regarding possession and registration were pending and the FIR was filed belate
Whether the prosecution disproved the accused's possession of the plot by showing the accused paid the major portion of the sale proceeds before taking possession.
2 provisions across 2 enactments
Harish Chandra
State of Rajasthan
Respondent no.2
Sandeep Mehta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
