Court No. - 41
Case :- APPLICATION U/S 482 No. - 44641 of 2019 Applicant :- Akhil Malhotra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Meraj Ahmad Khan Counsel for Opposite Party :- G.A.,Raj Kumar Khanna
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the applicant and the counsel appearing for the first informant.
At the outset, it is contended that by the learned counsel for the first informant that the applicant-herein had entered into an agreement to sell with regard to the property which had already been mortgaged with the bank for housing loan, which the applicant had taken in his name.
On the last occasion, time was granted to the learned counsel for the applicant to bring before the Court the correct and complete facts with regard to the assertion of the disputed property being mortgaged with H.D.F.C. bank.
The factum of mortgage is not disputed though no affidavit has been filed today. However, it is asserted by learned counsel for the applicant that the fact that the disputed property was mortgaged with the bank has been disclosed in the agreement to sell itself.
On a pointed query made by the Court, learned counsel for the applicant could not point out any such averment in the agreement, which discloses the factum of mortgage with the bank.
Next argument of learned counsel for the applicant is that the petitioner against whom the Complaint Case No.3958 of 2018 has been filed before the Judicial Magistrate, Moradabad is residing in District Gurgaon within the State of Haryana. The Judicial Magistrate at Moradabad had no jurisdiction to make any inquiry into the complaint. Reliance is placed upon the judgments of the Apex Court in the cases of Geeta Mehrotra & another Vs. State of U.P. & another reported in 2013 (1) JIC 1 (SC), Lee Kun Hee & others Vs. State of U.P. & others reported in 2012 (2) JIC 430 (SC). Placing decision in Inder Mohan Goswami & another Vs. State of Uttranchal & others reported in 2008 (1) JIC 737 (SC), it is contended that mere failure to keep a promise does not constitute cheating.
Having perused the submissions of learned counsel for the applicant and the decisions of the Apex Court as relied upon by him as also the provisions as contained in sub-section (1) & (2) of Section 202 Cr.P.C., it is more than evident that there is no restriction on the power of the Magistrate to make an enquiry into the instant complaint wherein allegations are of transaction of money within his jurisdiction, i.e. in the territorial limits of District Moradabad.
A careful reading of sub-section (1) of Section 202 Cr.P.C. indicates only this much that the Magistrate in an enquiry into the allegations in the complaint, can postponement issue of process against the accused in a matter where an accused is residing in a place beyond the area in which he exercises his jurisdiction.
A further reading of sub-section (2) of Section 202 Cr.P.C. indicates that an enquiry into the complaint by taking affidavits of witnesses on oath is also to be made by the Magistrate wherever he deems fit.
A further reading of the summoning order dated 14.10.2018 indicates that the Magistrate had made enquiries both under Section 200 and Section 202 Cr.P.C. and only after satisfying himself of the fact of prima facie commission of offence under Section 420 IPC, summoning order has been issued.
Even from the reading of the judgments of the Apex Court, it is evident that the place of occurrence of the offence is the determining factor. The place of residence of the accused or the location of the property cannot be considered to confer or take away the jurisdiction of the Magistrate.
For the aforesaid, no case is made out for interference. The present application is, accordingly, rejected.
Order Date :- 20.12.2019 Himanshu