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2007 DAILYLAW 2694 (DEL)

V. G. P. AGRO FARM (P) LTD. v. PRABHA MAHALE

2007-10-22

Shiv Narayan Dhingra

body2007
( 1 ) THIS writ petition under Article 226 and 227 of the Constitution of india read with Section 482 of Cr. P. C has been preferred by the petitioners for quashing the summoning order dated 7. 9. 2005 in criminal complaint case No. 10/01 whereby the petitioners were summoned to face trial under Section 406/109 of IPC. ( 2 ) THE petitioners had offered to the respondent two plots bearing No. 63-64 under 'garden Land Order Form' Scheme in VGP Bangalore Garden. The total consideration for the two plots was Rs. 10,95,200/- and the total measurement of the land of two plots was to be 10952 sq. ft. The issuance of a pass book in respect of money received for allotment of land was done by the petitioners to the respondent on 3rd May, 1996. The respondent paid the entire consideration for these two plots as demanded and agreed, and waited for registration of sale deeds of two plots in her name. Neither the sale deeds were registered in her name nor the money was returned back to her despite repeated requests. The letter dated 3rd May, 1996 from petitioner to respondent is on record whereby the allotment was made and the petitioners promised that possession of the plot for construction would be available to the respondent by October, 1996. When neither the plot nor the money was returned to the petitioner, the petitioner filed a complaint before the Court of Metropolitan Magistrate under Section 420 and 406 IPC. After recording pre-summoning evidence, the learned MM passed an order observing that it was difficult to say that the intention of the petitioner in this case was dishonest from the very beginning and offence under section 420 IPC was committed but the act of neither providing plot as promised nor returning the money for a long time, entrusted to the petitioners company, in spite of the demands made by the complainant prima facie show that there was misappropriation or conversion of money by the complainant. The learned trial court found sufficient grounds to proceed against the petitioners for offence under Section 406 and 109 IPC. The learned trial court found sufficient grounds to proceed against the petitioners for offence under Section 406 and 109 IPC. ( 3 ) WHEN an order of lower court is challenged before the High Court by way of writ jurisdiction under Article 226/227, the only question before the High court is to see whether the trial court concerned has acted within four walls of its jurisdiction and has not exceeded its jurisdiction. The High Court, in writ jurisdiction, cannot act as a court of appeal or court of revision, and examine the merits of the order. The power under article 227 of Constitution of India is a discretionary power and should be exercised sparingly, to keep the subordinate courts and Tribunals within the bounds of their authority and not to correct errors. Criminal Procedure Code provides specific remedy against erroneous orders. ( 4 ) IN the instant case, the court of MM where the complaint was filed was competent to entertain the complaint. The procedure followed by the court of metropolitan Magistrate was as laid down in Cr. P. C. The court after appreciating the pre-summoning evidence and applying its mind, summoned the petitioners to face trial as per law. There was no lack of jurisdiction with the trial court concerned. Neither the court transgressed its jurisdiction at any point of time. No ground is, therefore, made out for interference by this Court in writ jurisdiction. ( 5 ) IT would not be out of place to mention here that during pendency of this writ petition, efforts were being made for compromise. However, the petitioners offered an alternative land to the respondent in Bangalore but some 20/30 kms away from Bangalore. Neither the area of land was of the same nor the value was the same. The respondent, therefore, did not agree to this alternative offer. Several other contentions were put by the counsel for the petitioners which involve disputed questions of facts. All these questions can be gone into only by the trial court where the petitioners should approach and face the trial. This Court in writ jurisdiction cannot entertain the disputed questions of facts. The order of the learned court below cannot be challenged by way of writ petition on merits. ( 6 ) IN view of my foregoing discussion, this petition is not maintainable and is hereby dismissed.