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Judgment
S.N. Pathak, J.—This criminal application has bee filed seeking an annulment of cognizance order dated 15.5.96 passed by Shre Madhusudan Tiwari, Judicial Magistrate 1st Class, Aurangabad, in complaint case no.11 of 1996/Trial No. 761 of 1996 and summons were issued against the petitioner. Both sides were heard.
It was submitted by the petitioners lawyer that the petitioners were given one Cinema Hall on lease for a terms of Five years and Five months and one of the terms of the lease was that any time during the subsistence of the lease or on the termination of the lease, opposite party no.2 shall return Rs. 50,000/- which was a security money on a proper receipt to be granted by the petitioners. If the amount of security shall not be paid back by the lessor and unless and until receipt for the same was obtained from the lessee the latter (the lessee) shall continue to be in possession of the Cinema Hall. On the aforesaid terms, the concerned Cinema Hall came in possession of the petitioners and up till now no receipt has been granted in token of the return of the security money, nor the same has been paid back.
The alleged prosecution case was filed with malafide intentions just to harass the petitioners who are doing business at Rafiganj in the district of Aurangabad and who are the residents of U.P.
It has further been submitted that among the papers filed alongwih the complaint petition, the most relevant paper, the receipt for payment of Rs. 50,000/- is not there the entire proceeding was a misconceived one and hence it should be quashed.
On perusal of the averments made in the complaint petition, it transpires that the complainant stated in Hindi language to the effect that the terms of the lease, would expire on 31.12.1995 and subsequently after the termination of this lease, the lessee, Dasrath Prasad Pandey had to return, the Cinema Hall along with its instruments after receiving back Rs. 50,000/-. The subsequent statement is to the effect that on 1.1.1996 the Complainant (lesser) received back the possession of the Cinema Hall. By the aforesaid statements, the complainant meant to suggest, even though impliedly, that he had paid back Rs. 50,000/- to the lessee and consequently he received back the possession of the Cinema Hall. However, this fact is disputed by the petitioners and they aver that they did not receive back the security money.
It was further submitted that the articles which were mentioned in the lease deed have not been included in the allegedly thieved articles. This also indicates malafide intention on the part of the complainant-lesser.
However, as per allegations made in the complaint petition which were supported by some witnesses examined u/s 202 Cr. P.C. facts alleged are to the effect that on 2.1.1996 at 12 Noon, the petitioners came to the Cinema Hall and on the point of revolver they took away certain articles in total worth Rs. 80,000/- and when the informant-complainant objected, he was assaulted by fists and slaps by Dasrath Prasad Pandey and threatened of his life on the point of revolver.
The learned Magistrate after conclusion of the enquiry took cognizance under sections 323, 147 and 380 of the Indian Penal Code. The case hinges on the disputed fact whether the petitioners had paid back the amount of security money which was Rs. 50,000/-. This Court can interfere only when no case at all is made out. So far the facts disputed are concerned those can be decided only after trial. So I do not think there is a good case for exercising of the power u/s 482 of Cr. P.C. Hence this case is dismissed.