Point of Law : Section 468 of the Criminal Procedure Code, object of including Section 468 was to put a bar of limitation on prosecution and to prevent the parties from filing the cases after a long time as it was brought proper thereafter a long lapse of time, launching of prosecution may be vexatious because by that time evidence may disappear.

ORDER :

ORDER IN SPECIAL CRIMINAL APPLICATION NO. 8975 of 2018

1. By way of present petition, the petitioner, who is the original complainant, has challenged the order dated 06.07.2018 passed by learned 5th Additional Sessions Judge, Mehsana at Visnagar in Criminal Revision Application No.32 of 2016 as well as order dated 23.07.2016 passed by learned Judicial Magistrate First Class, Unjha in Inquiry No.1 of 2015.

2. Short facts filing to the present petition may be summarized as under:

2.1 As per the averments made in the complaint filed by the petitioner, Mafatlal Sendhidas and Mangalbhai Sendhidas, are resident of Makhtupur is the cousin brother of the petitioner and they are carrying out their business of trading of tobacco. That in 1989, Mafatlal Patel proposed the petitioner to purchase the agricultural land owned by him at Santej, Taluka Kalol. The petitioner paid certain amount as described in the complaint to his cousin brother namely Mafatlal Sendhidas from 1989 to 2007.

2.2 Thereafter, the petitioner requested his brother to transfer the land in his favour. In spite of repeated request made by the petitioner, no transaction was made by him in favour of the petitioner, and therefore, he filed a complaint before the learned Judicial Magistrate First Class, Unjha on 02.02.2015. The learned Judicial Magistrate First Class was pleased to pass an order to conduct the inquiry by itself under Section 202 of the Code of Criminal Procedure, 1973. The petitioner filed his affidavit in support of his complaint on 13.07.2015 alongwith the documents (Mark 5/1 to 5/7). He also produced affidavit of the witnesses alongwith statement of the partnership firm maintained by the firm showing entries of withdrawal of the amount for the purpose of payment to the proposed accused for purchasing the land. He also produced various affidavits of the witnesses namely Mr. Natubhai Ramjibhai Patel and Mr. Babubhai Rugnathbhai Patel supporting the contents of the petitioner that he had paid the amount to the proposed accused. Other affidavits of Mr. Vasantbhai Kalyanbhai Parmar and Karsansingh Govindbhai Thakor were also produced by the petitioner pointing out the fact that they were aware of the transaction and how the petitioner was duped by his brother.

2.3 The learned Magistrate vide order dated 23.07.2016 was pleased to dismiss the complaint filed by the petitioner under section 203 of the Criminal Procedure Code. The petitioner approached the Sessions Court against such order of dismissal of his complaint by filing Criminal Revision Application No.32 of 2016. Learned 5th Additional Sessions Judge, Mehsana at Visnagar, after hearing the parties, was pleased to dismiss the Criminal Revision Application No.32 of 2016 vide order dated 06.07.2018. The petitioner, being aggrieved with the impunged order passed by the learned JMFC, Unjha in Inquiry No. 1 of 2015 as well as order passed in Criminal Revision Application No.32 of 2016 dated 06.07.2018, has preferred this petition under Articles 14, 19, 21 and 226 of the Constitution of India as well as under the provisions of Code of Criminal Procedure, 1973.

3. Heard learned advocate Mr. Archit P. Jani appearing for the petitioner and learned APP appearing for the respondent-State.

4. It is submitted by learned advocate appearing for the petitioner that both the orders passed by the learned JMFC, Unjha in Inquiry Case No.1/2015 dated 23.07.2016 as well as order dated 06.07.2018 passed by learned 5th Additional Sessions Judge, Mehsana at Visnagar in Criminal Revision Application No.32 of 2016 are illegal, erroneous and contrary to the well settled legal proposition. It was further submitted that there were sufficient grounds in the complaint to warrant full fledged trial under Section 202 of Code of Criminal Procedure and Courts below ought to have issued process and culminated the inquiry into the criminal case. It is further submitted that prima facie case was made out by the complainant against the propos