Paramjit Singh vs Sohan Singh

V.K. Jhanji, J.

In this petition, challenge is to the order dated 30.3.1995 passed by the Sessions Judge, Jalandhar whereby revision petition filed by the respondent has been allowed and order dated 11.1.1994 of the Judicial Magistrate summoning the respondent has been set aside and the complaint has been quashed.

It has been contended by the learned counsel for the petitioner that the learned Sessions Judge could not substitute his own discretion for that of the Magistrate by examining the case on merits with a view to find out whether or not the allegations made in the complaint would prove ultimately and conviction of the accused ordered. He contended that there was sufficient ground to proceed against the respondent and as such he was ordered to be summoned.

After hearing the learned counsel for the parties and going through the order of the learned Sessions Judge, I am of the view that the order has to be quashed.

As per allegations made in the complaint, petitioner is a tenant of one Sohan Singh son of Khushal Singh. Another Sohan Singh son of Tara Singh came to him in November, 1988 and represented that rent be paid to him as he is the attorney of Sohan Singh son of Khushal Singh and is entitled to receive the rent on his behalf. On his representation, rent was paid to Sohan Singh son of Tara Singh from November, 1988 to July, 1993, amounting to Rs. 17,000/. In July, 1993, petitioner was served with a notice in ejectment petition filed with the Rent Controller through Harbhajan Singh Saini, another attorney in which one of the grounds of ejectment was nonpayment of rent with effect from 1.5.1987 to July 1995. Petitioner alleged in his complaint that the fact of cheating came to his knowledge when he received this notice. In support of the allegations made in the complaint, the complainant examined himself as P.W. 1 and Ashok Kumar as P.W. 2 and Parveen Singh as P.W. 3. On the basis of the allegations made in the complaint as also the evidence, the Judicial Magistrate Ist Class, Jalandhar concluded as follows :

"The complainant himself appeared as P.W. 1 and narrated on oath all the facts mentioned in the complaint. He also brought on record the photostat copy of power of attorney shown by the accused to the complainant on the basis of which he cheated the complainant. The complainant also examined Ashok Kumar (PW2) and Parveen Singh (PW3) independent witnesses who also corroborated the complainant's version in toto. The evidence on record at this stage is unrebutted which is sufficient to presume that the accused has committed an offence punishable under Section 420, I.P.C. Accordingly, the accused be summoned for 28.11.1994 on filing of PF and copies of complaint."

In revision filed by the respondent, the learned Sessions Judge has set aside the order by going into the merits of the case and opining on the validity of the power of attorney as also by observing that there is absolutely nothing to show if there was a valid power of attorney prior to August, 1992 and also that the question of making payment of rent to the attorney without receipt did not arise. He also opined how the petitioner could have paid rent without receipt.

The learned Sessions Judge could not have gone into the merits of the complaint. When the complaint and evidence of witnesses disclosed commission of offence and the Magistrate was satisfied that there were sufficient reasons to proceed against the accused persons, then the summoning order of the Magistrate could not be interfered with in revision. Accordingly, the order under revision is set aside. The matter shall go back to the Judicial Magistrate Ist Class, Jalandhar, who shall decide the complaint in accordance with law.

Parties through their counsel are directed to appear before the Judicial Magistrate 1st Class, Jalandhar on 1.3.1996.