Alok Kumar Saraogi Son Of Late Shri ... vs State Of Rajasthan
2023 Latest Caselaw 839 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

       S.B. Criminal Miscellaneous (Petition) No. 1088/2022

Alok Kumar Saraogi Son Of Late Shri Bimal Kumar Saraogi, Aged
About 53 Years, R/o Fatehpur, District Sikar, Presently Residing
At 125/1 Canal Street, Akash Apartment, Kolkata.
                                                                   ----Petitioner
                                   Versus
1.     State Of Rajasthan, Through Additional Public Prosecutor.
2.     Madan Kumar Son Of Nathuram, R/o Ward No. 23, Meeno
       Ka    Mohalla,     Fatehpur          Shekhawati,         District   Sikar,
       Rajasthan.
                                                                ----Respondents

For Petitioner(s)         :    Mr. Kinshuk Jain
                               Mr. Saurabh Jain
                               Mr. Jai Upadhyay
For Respondent(s)         :    Mr. Prashant Sharma, PP
                               Mr. Nikhil Saini for
                               Mr. Inder Raj Saini



            HON'BLE MR. JUSTICE BIRENDRA KUMAR

                                    Order

25/01/2023

     Heard the parties.

Respondent No. 2 is the informant of FIR No. 92/2017

registered with police station Fatehpur Kotwali for offences under

Sections 420 and 120-B of IPC.

After investigation of the case, the police submitted a

negative final report considering therein that the matter is of pure

civil dispute. Learned Magistrate by order dated 18.09.2019,

disagreed with the police report and considered the material in the

case diary that since there was an agreement between the parties

and the petitioner had taken 26 lakh rupees as consideration

(2 of 3) [CRLMP-1088/2022]

money from the informant and thereafter neither executed the

sale deed nor refunded the consideration money, hence prima

facie offence under Section 406 IPC is made out accordingly,

cognizance was taken and summons were issued.

The aforesaid order was challenged before the learned

Revisional Court in criminal revision No. 69/2019. The learned

Additional Sessions Judge, Sikar who heard the revision petition

disposed off the same by order dated 21.12.2021 and set aside

the order of cognizance as well as remanded the matter to the

Magistrate concerned for passing fresh order according to law and

also consider the point raised in the Revisional Court's order.

Learned counsel for the petitioner submits that a case of

entrustment of property is not made out in the facts and

circumstances of this case, payment of consideration money is not

entrustment of the property, entrustment means the parties have

agreed for refund of property entrusted.

Learned counsel has referred to the Judgment of Hon'ble

Supreme Court in Vijay Kumar Ghai & Ors. vs. State of West

Bengal & Ors. reported in (2022) 7 SCC 124 to substantiate that

in the present facts and circumstances of the case, no ingredients

of entrustment of property is there.

Since the order of Magistrate taking cognizance under

Section 406 IPC has been set aside by the learned Revisional

Court, there is no need to re-examine the submission aforesaid,

Revisional Court has power to remand the matter. Hence only for

sending back the case for rehearing and reorder, it cannot be said

that it is going to occasion a failure of justice and would lead to

(3 of 3) [CRLMP-1088/2022]

miscarriage of justice. Therefore this court is not inclined to

interfere with the Revisional Court's order dated 21.12.2021.

However, it is made clear that order dated 21.12.2021 would

not prejudice the mind of the Magistrate while passing fresh order

and the Magistrate would be completely free to apply his own

mind without being prejudiced by this order as well and shall pass

order according to law.

With the aforesaid observation, the instant petition stands

disposed off.

(BIRENDRA KUMAR),J

ashu /68

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