The main legal point established in the judgment is that at the stage of taking cognizance, the magistrate is only required to determine if there is prima facie evidence of the possibility of the commission of the offense, and that the filing of a civil suit for recovery does not bar the lodging of a criminal case involving criminal offenses.

JUDGMENT

Vivek Singh Thakur, J. - Present petition has been preferred against impugned order dated 27.05.2016, passed by learned Additional Chief Judicial Magistrate (1), Shimla, H.P., in case titled as State vs. Kehar Singh Khachi, FIR No.341 of 2015, dated 21.12.2015, registered in Police Station, Sadar, Shimla, by respondent No.2-complainant, whereby learned Magistrate has taken cognizance under Section 173 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') for alleged commission of offence punishable under Section 420 read with Section 34 of the Indian Penal Code (in short 'IPC') and notices have been issued to the petitioners.

2. Prosecution case, in brief, is that petitioners had shown a big vacant plot situated in Shimla to respondent No.2- complainant, available for sale and petitioner No.1 disclosed to respondent No.2 that the said land was owned by different persons and he was holding Power of Attorney of some of such owners and he had also shown General Power of Attorney(s) to respondent No.2- complainant, executed in his favour. As respondent No.2- complainant and her husband were interested to purchase a plot for construction of their residence, complainant, being persuaded by the size of vacant piece of land, readily agreed to buy the said plot and for purchasing the said plot an amount of Rs. 1,00,70,000/- was transferred by respondent No.2-complainant to petitioner No.1 during October 2008 to July 2011. During this period, some sale deeds were also executed through petitioner No.1, in favour of complainant for a land worth Rs. 70,00,000/-.

3. It is further case of the prosecution that petitioner No.1 had also executed a sale deed in favour of his son (petitioner No.2 herein) for sale consideration of Rs. 18,00,000/- with respect to a piece of land out of the vacant land shown to the complainant on 19.07.2011 and thereafter, when petitioner No.1 demanded more money for purchasing remaining land, respondent No.2-complainant had reminded him that total amount of Rs. 97,70,000/- had already been received by him and, therefore, no more money could be paid to him, as only a sum of Rs. 70,00,000/- had been spent for purchasing four pieces of land.

4. It is further case of the prosecution that petitioners, instead of purchasing property in the name of complainant misappropriated her money and got executed sale deed in favour of petitioner No.2 knowing fully that entire piece was shown to respondent No.2-complainant and she was intending to purchase entire land and making payments to petitioner No.1 as per his demands. On the basis of record of the bank, it has come during investigation that respondent No.2-complainant had transferred a sum of Rs. 1,00,70,000/- in favour of petitioner No.1 either herself or by her husband or through her mother, through cheque(s)/online transaction/transfer. Consideration for the sale deed, executed in favour of respondent No.2-complainant, through petitioner No.1 was Rs. 70,00,000/- and a sum of Rs. 30,70,000/- was found to have been received in excess by petitioner No1. Retaining Rs. 30,70,000/- and execution of sale deed in favour of petitioner No.2, allegedly misappropriating money received from respondent No.2- complainant of a portion of a plot which was shown to respondent No.2-complainant, as per investigation, was found to be dishonest and fraudulent act committed by the petitioners attracting provisions of Section 420 read with Section 34 IPC and accordingly challan for commission of aforesaid offences has been submitted in the Court under Section 173(2) Cr.P.C., wherein on the basis of material on record, learned Magistrate has taken cognizance as stated supra.

5. Taking cognizance of commission of offence by learned Magistrate has been assailed on the ground that entire transactions, in question, are based on alleged oral agreement which was never documented and no Khasra number(s) with specific area was/were ever agreed to be made available by the petit