CRLMP/4256/2012 of JETHMAL AGARWAL Vs STATE OF RAJASTHAN AND ANR. on 17 August 2026

Order

17/08/2026

1. Instant miscellaneous petition is preferred by petitioner- complainant aggrieved from order dated 29.10.2012 in Criminal Revision No. 30/2011 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Jaipur Metro, titled as Dilip Kumar Goyal versus State and another, wherein after allowing criminal revision of non-petitioner No. 2, the revisional court has set aside order of cognizance dated 26.8.2010 passed by learned ACJM No. 2, Jaipur in a matter arising out of FIR No. 73/2009 registered at P.S. Gandhinagar, Jaipur.

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2. Learned Senior Advocate appearing on behalf of petitioner- complainant submitted that non-petitioner Dilip Kumar promised and gave an allurement to book flat in the scheme of senior citizens with further favour to allot flat on first or second floor. He also submitted that pursuant to said allotment, the petitioner has paid ₹1 lakh as cash and cheque of one lakh to Dilip Kumar and after some time, an application form has been filed in the name of petitioner's mother. He also submitted that after some time ₹3,12,500/- were demanded and same is paid by petitioner by cheque dated 04.08.2007. He also submitted that neither the flat was allotted nor the amount was returned to non-petitioner No. 2 despite repeated reminders. He submitted that the intention of non-petitioner No. 2 from the beginning was to cheat petitioner and his family, and an FIR is filed and during investigation the builder has entered into a settlement and refunded the money paid by cheque but the builder has not refunded ₹1 lakh paid in cash to non-petitioner No. 2. He submitted that police has filed a closure report and after recording statement in support of the protest petition, the trial court has taken cognizance under Section 420 and 406 IPC against non-petitioner No. 2. He also submitted that even the uncle of accused has deposed under Section 202 Cr.P.C. to corroborate the payment made by the petitioner. He further submitted that the revisional court, acting contrary to the settled proposition of law and the provision of Section 397 and 401 of IPC, has allowed the criminal revision considering the merits of the case and set aside the

(3 of 8) [CRLMP-4256/2012] cognizance order passed by the trial court. He further placed reliance upon judgment in case of Arun Bhandari versus State of U.P. and others, reported in (2013) 2 SCC 801, and submitted that there exist ingredients of cheating and breach of trust but revisional court has not considered the evidence, in particular statement of complainant and uncle of accused.

3. Aforesaid contentions were opposed by learned counsel appearing on behalf of non-petitioner No. 2 and submitted that the allegations are bald and vague and no specific date of payment has been mentioned by the petitioner, which is sufficient to discard the allegation of present petitioner. He also submitted that this is a civil dispute between the parties due to animosity between Prem Krishna and non-petitioner No. 2, he has deposed against the non-petitioner No. 2. He also referred Annexure-1 and submitted that it was executed on 11.10.2006, wherein only ₹1 lakh has been mentioned, but there is no evidence to show that petitioner has advanced cash of ₹1 lakh.

4. He also referred the reasons assigned by the revisional court and submitted that the revisional court has considered the facts and material and on the basis of said material has drawn a conclusion that the trial court has committed serious error in taking cognizance. He also referred the police report and submitted that police has closed the investigation and submitted negative closure report, which is sufficient to draw a conclusion that non-petitioner No. 2 has not committed any crime and if there is any dispute regarding payment,

(4 of 8) [CRLMP-4256/2012] then it is dispute of civil nature. He also referred judgment in case of Usha Chakraborty and another versus State of West Bengal and another, 2023, Live Law SC 67.

5. Heard Learned Senior Advocate for petitioner, learned counsel for the non-petitioner No. 2 and learned Public Prosecutor and perused the material placed on record.

6. Brief facts of the case are that on the basis of transaction about booking of plot allegedly through non-petitioner No. 2 and non-fulfillment of commitment, the petitioner has lodged FIR No. 73/2009 on 05.02.2009 at P.S. Gandhinagar, Jaipur City East, and after registration of FIR police has carried out investigation and submitted negative closure report in form of FR. The complainant, petitioner, has filed a protest petition and examined himself under Section 200 Cr.P.C. and Prem Krishna Garg under Section 202 Cr.P.C. After considering the material, the trial court has passed an order of cognizance on 26.8.2010 against non-petitioner No. 2 for offence under Section 420 and 406 of IPC. Non-petitioner No. 2 has filed a criminal revision, which was decided as Revision No. 30/2011, by learned Additional Sessions Judge, Fast Track Court No. 2, Jaipur Metro, on 29.10.2012, and order of cognizance was set aside.

7. In case of Usha Chakraborty (supra), Hon'ble Supreme Court has observed that when the facts in respect of issue involved indicate that dispute is of civil nature, then the aggrieved party have to approach jurisdictional civil court by instituting a civil suit, and in such case a criminal proceeding is not maintainable. Further held that Section 482 Cr.P.C. is

(5 of 8) [CRLMP-4256/2012] designed to achieve the purpose of ensuring that criminal proceedings are not permitted to degenerate into weapon of harassment.

8. In case of Arun Bhandari (supra), it was held that to hold a person guilty of offence of cheating, it has to be shown that the intention was dishonest at the time of making terms, promise, and such dishonest intention cannot be inferred from the mere fact that he cannot subsequently fulfill the promise. While considering the dispute of civil nature, held that sometimes the case may apparently look to be civil nature or may involve commercial transaction, but in certain circumstances may also contain the ingredients of criminal offence, and notwithstanding the nature of civil dispute, a criminal proceeding can be instituted.

9. In the instant case, the police has closed the investigation by proposing FR on the ground that the dispute is of civil nature, but the trial Court has taken cognizance against non- petitioner No. 2. Learned revisional court has considered a fact that there is serious contradiction and discrepancies in the statement of complainant and witness Prem Krishna and also Ganga Devi, in whose name the flat was booked, has not been examined, has allowed the criminal revision.

10. The revisional court has noticed the fact that there is no written acknowledgment about cash payment of ₹ 1 lakh and the trial court has committed serious error in not considering all the facts. After closure report, learned trial court has recorded statement of complainant and a witness, who is close relative of non-petitioner No. 2. No doubt about the

(6 of 8) [CRLMP-4256/2012] fact that there is no receipt to show payment of money, but oral transaction and cash payment are frequently made, therefore same is not a ground rather it is a matter of evidence and same is not a legal issue, required to be considered by the revisional court.

11. The revisional court acted like a court of appeal. The revisional powers are intended to correct patent errors, jurisdictional defects, or gross injustice, which might occur during criminal proceeding. The primary object of revisional jurisdiction is to correct the errors committed by the court below. Thus jurisdiction of revision can only be invoked where there is gross illegality, perversity, or infirm findings, or arbitrary exercise of discretion.

12. In case of Amit Kapoor versus Ramesh Chandra, reported in 2012 9 SCC 460, Hon'ble Supreme Court observed that the revisional jurisdiction is limited and should be exercised sparingly to prevent miscarriage of justice. It is not intended to reappreciate evidence or reassess the findings of fact, except where such findings are perverse or based on no evidence or ignoring material evidence.

13. In case of Girish Kumar Suneja versus CBI, AIR 2017 SC 3620, a three-judge bench of Hon'ble Supreme Court has clarified that the revisional jurisdiction cannot be exercised against purely interlocutory order but may be invoked in respect of final or intermediate orders.

14. In the instant case, the evidence is brought on record not by police but additionally by complainant and the trial court has considered the evidence both of police and also recorded

(7 of 8) [CRLMP-4256/2012] after protest petition. There may be certain discrepancies or contradiction in the statement of two witnesses, but whether same is sufficient to draw a conclusion that the offence has been committed, the revisional court, instead has drawn a conclusion that this is a dispute about the financial transaction and on the basis of suspicion, a cognizance cannot be taken.

15. In the instant case, the complainant remained firm against non-petitioner No. 2 from FIR to his statement under Section 200 Cr.P.C., wherein he maintained that the promise and allurement by non-petitioner No. 2, and the said money was paid for booking flat in project of Unique Builder constructed for senior citizens. The amount of consideration includes cash payment of ₹ 1 lakh.

16. The fact indicates that except return of cash amount paid to non-petitioner No. 2, other payments were made by cheque and same were returned by builder to the petitioner. The entire transaction was at instance of non-petitioner No. 2 and the cash amount has been received by himself, but he has not deposited same to the builder, which indicates that there was intention to cheat from very inception of transaction. Thus considering the judgment in case of Arun Bhandari (supra), despite an alternative remedy to file a suit for recovery, the ingredient of cheating are present, which is sufficient to show that ingredient of criminal offence are also available. Hence the revisional court has committed a serious error in allowing Criminal revision and interfering in the cognizance order, therefore the order passed by

(8 of 8) [CRLMP-4256/2012] revisional court suffers from illegality and same is liable to be set aside.

17. In view of discussion made hereinabove, the miscellaneous petition under Section 482 Cr.P.C. is hereby allowed and order dated 29.10.2012 in Criminal Revision No. 30/2011 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Jaipur Metro is quashed and set aside. The order of cognizance dated 26.8.2010 is restored and non- petitioner No. 2 is directed to face further proceedings pursuant to said order.

18. In view of aforesaid, miscellaneous petition and miscellaneous application, including stay application, if any, stands disposed of. (ASHOK KUMAR JAIN),J 178/PREETI VALECHA