Mohd. Yunus Khan and Others v. State and Sahid Ali Khan

Court No. - 81 Case :- CRIMINAL REVISION No. - 764 of 1990 Revisionist :- Mohd. Yunus Khan And Others Opposite Party :- State And Sahid Ali Khan Counsel for Revisionist :- Satish Trivedi Counsel for Opposite Party :- A.G.A. Hon'ble Mrs. Jyotsna Sharma,J.

¶1None responds for the revisionists.

¶2Heard Sri L.D.Rajbhar, learned A.G.A. and perused the record.

¶3This criminal revision has been filed against the judgement and order dated

30.04.1990 passed by Munsif Magistrate (LCC.III) Bareilly in Criminal Case no.1625 of 1989 whereby the revisionists have been summoned to face trial for an offence under Section 420 I.P.C.

¶4Relevant facts are as below: Complainant Sajid Ali filed a complaint under Section 420 I.P.C. against Mohd. Yunus Khan and Muste Hasan Khan (the revisionists herein) with certain allegations in nutshell that he was duped of his money on false assurance of arranging for passport for securing job for him in a foreign country. This complaint was filed on 24.03.1987. The accused persons were summoned under Section 420 I.P.C. by order dated 01.12.1987 passed by Munsif Magistrate, II Bareilly. The accused persons preferred a criminal revision no.79 of 1988. The Additional Sessions Judge took up all the contentions of both the sides and passed an order on 17.11.1989. By aforesaid order, the revision was allowed and the impugned order was quashed, with further direction to the learned Magistrate for passing an order afresh, in the light of the directions and observations of the revisional court. The trial court thereafter passed a fresh order on 30.04.1990 summoning the accused persons to face trial for the offence under Section 420 I.P.C.

¶5Now the accused persons are before this court challenging the summoning order dated 30.04.1990 by filing this criminal revision. As none responds for the revisionist, hence with a view to finally decide this old case of 1990, I went through the memo of the revision.

¶6The contention of the revisionist as disclosed from the revision memo, in essence, is that the magistrate court, while passing fresh order of summoning did not follow the directions of the revisional court. The police report has been ignored in clear violation of order of revisional court. The trial court further ignored all clear cut directions of revisional court and passed the order in most casual and cursory manner.

¶7I went through the material on record. The revisional court had observed in para-13 as below:- "On the representation of the three i.e. the applicants and PW 1 Munnawwar Ali and the applicants assured him for employment, Mukhtiar Khan, Sajid Ali, Zahid Ali and others on 29.03.83 handed over the money and their passport. Two things emerge out from this F.I.R. Firstly, P.W.1 Munnawwar Ali was an accomplish and secondly this F.I.R. is just contradictory to the evidence led before the trial court. All these circumstances have not been considered by the learned Magistrate. The receipts are said to have been executed by the two accused persons acknowledging the advancement of money and their liability to pay the same. Those receipts are executed much before the dispute arose. Does these receipts show the criminal intention of the applicant or has also not been considered by the learned Magistrate. The civil suit could have been brought on the basis of these receipts. This aspect too was not considered by the learned Magistrate. It only goes to show that the learned Magistrate passed the impugned order without applying his mind to the material on record. Therefore, he committed illegality in passing the impugned order. For the reasons recorded above I am of the opinion that the learned Magistrate has committed illegality in passing the impugned order. Therefore, the revision is liable to be allowed and the case must be sent back to the learned Magistrate for disposal according to law.

¶8The learned revisional court has observed in para no.12 as below:- "12. A perusal of theimpugned order shows that the Learned Magistrate considered the statement of the complainant and P.W.1 Munwwar Ali as well as the copy of the F.I.R. and the receipt executed by the applicant. A perusal of the complaint shows that there is no averment to the effect that the accused had a dishonest intention from the outset. The question whether the evidence discloses civil or criminal liability depends upon the questions whether the complainant imparting with his money acted on the representation of the accused and in believe of the truth thereof and whether these representation when made were in fact false to the knowledge of the accused and whether he had a dishonest intention from the outset. If any of the ingredients is missing there will not be any criminal liability."

¶9For proper appreciation of issue involved, I find it appropriate to reproduce the relevant paras of the fresh order under challenge passed by the trial court in the light of order of revisional court which as below:- "थथानथा ककैण्ट ससे पथा्቎ ररिपपोटर कसे अननुसथारि थथानसे परि दरर करिथाययी गययी ररिपपोटर अपरिथाध ससंख्यथा 76/86 ककी वविविसेचनथा कसे उपरिथासंत असंवतम आख्यथा ससंख्यथा-21 दथारिथा समथा्቎ वकयथा गयथा। यह ररिपपोटर सबबूत कसे अभथावि मम समथा्቎ करिनसे कसे तथ्य कसे तथ्य कपो भयी असंवकत करितथा हकै। इसकसे उपरिथासंत विथादयी दथारिथा वदनथासंक 24.3.87 कपो उ्ሹ पररिविथाद पस्तनुत वकयथा गयथा। ऐसथा कपोई पथावविधथान नहीሻ हकै जरसकसे आधथारि परि असंवतम आख्यथा समथा्቎ हपो रथानसे कसे बथाद अवभयनु्ሹ कसे वविरू्ቍ पररिविथाद न चल सकतथा हपो। विथादयी दथारिथा दथायरि वकयसे गयसे पररिविथाद कपो तथथा उसकसे बयथान असंवकत धथारिथा 200 वि 202 द०प०ससं० कथा सथाቌኚय मम असंवकत वकयथा गयथा। पररिविथादयी ककी ओरि ससे विररि्቗ पनुजलस अधयी्ቌक कपो वदयसे गयसे पथाथरनथा प्ቔ ककी नकल मय रिजरस्टटयी रिसयीद तथथा अवभयनु्ሹ गण दथारिथा जलजखित रिसयीद ककी नकल ककी फपोटपो कथापयी दस्तथाविसेरयी सथाቌኚय कसे रूप मम पस्तनुत ककी हकै। प्ቔथाविलयी परि उपलब्ध सथाቌኚय कसे आधथारि परि अवभयनु्ሹ गण मपो० यबूवनस वि मनुश्त हजसन खिथासं कसे वविरू्ቍ पथम दृ्ቖयथा धथारिथा 420 भथा०द०ववि० कथा आरिपोप बनतथा हकै। अततः अवभयनु्ሹ गण मपो० यबूवनस, मनुश्तसेहजसन खिथासं कपो धथारिथा 420 भथा०द०ववि० कसे अन्तगरत सम्मन दथारिथा तलब वकयथा रथाविसे।"

¶10From the impugned order, it is obvious that no discussion as regard presence or absence of essential ingredients, which would constitute offence under Section 420 IP.C. has been made by learned trial court. Summoning order under challenge is sketchy and bereft of any reasoning. In my opinion, the material observations made by the revisional court in its order, have been completely ignored by the court below. It was expected of the court below that it shall peruse the material on record in the light of things so clearly pointed out by the revisional court. The approach of the trial court was very casual and cursory, therefore, the impugned order is liable to be set aside.

¶11In view of the above, I find that the impugned order is not sustainable as it has been passed in utter disregard of directions of lower revisional court.

¶12The criminal revision is allowed and the impugned order dated

30.04.1990 is set aside.

¶13A copy of this order be certified to the court concerned for necessary action. Order Date :- 30.10.2023 Asha High Court of Judicature at Allahabad