IN THE HIGH COURT OF RAJASTHAN 

P. K. KHETAN, Advocate, for the petitioner. 

S. M. PODAR, Public Prosecutor. 

ORDER 

M. A. A. KHAN, J. - Notice was given to the learned public prosecutor and the learned counsel for the parties were heard. 

2. The impugned order discloses that the proposed accused company had offered the sale of debenture to the petitioner at Jaipur vide their offer, dated 15.11.1990, whereupon the petitioner and his wife had applied for purchase of certain debenture vide registered postal letter, dated 10.12.1990. The proposed accused was alleged to have committed the offence of cheating or in the alternative, criminal breach of trust. The learned Magistrate, however, did not entertain the complaint on the ground that his court has no jurisdiction to entertain the complaint. 

3. It was submitted that since the offer made by the company had been accepted at Kota a part of cause of action for the application of section 181(4) Cr PC had taken place within the jurisdiction of the learned Magistrate and, therefore, he had jurisdiction to entertain the present complaint. It was further submitted that once a complaint had been filed with the learned magistrate and after examining the complainant under section 200 and of his witnesses under section 202 Cr PC - the learned Magistrate is satisfied that an offence is disclosed to have been committed in the case, he may take cognizance of such offence, but consider the question of jurisdiction of trial of the proposed accused before issuing process against them under section 204 Cr PC. It was pointed out that in the present case, the learned Magistrate, though appears to have applied his mind to the contents of the complaint, yet did neither examine the complainant under section 200 Cr PC nor his witnesses under section 202 Cr PC. 

4. Once the complaint had been presented before the learned Magistrate, and a perusal of the complaint had disclosed that certain offences were allegedly committed in the case, the learned Magistrate may take cognizance of such offence. The learned Magistrate should entertain the complaint and after recording the statement of complainant under section 200 and, in case, he thinks it necessary, of his witnesses under section 202 Cr PC, he should apply his mind to the facts of the case and consider the question of taking cognizance of the offence coupled with the question of summoning the offenders of such offence and issuing process against them. The learned Magistrate; should have, therefore, examined the complainant under section 200 and his witnesses under section 202 Cr PC, if produced before him, and then to have decided the issue. 

5. In view of the above, the impugned order, dated 20.1.1997 is vacated and set aside and the learned Magistrate is directed to examine the complainant under section 200 Cr PC and to record the statements of his witnesses under section 202 Cr PC, if produced before him, and then to consider as to whether any offence is disclosed to have been committed by such evidence and he has jurisdiction to summon the proposed accused. In that respect, the learned Magistrate may take note of the law laid down by the apex court in the case of Mubarik Ali Ahmed v. State of Bombay AIR 1957 SC 857 where the following observations were made : 

"It appears from section 5(1) of the Code of Criminal Procedure that the provisions of the said Code relating to the place of trial assume the existence of substantive liability under the Indian Penal Code or under any other law. 

The offence of cheating under section 420 of the Penal Code as defined in section 415 of the Code has two essential ingredients, viz., (1) deceit i.e., dishonest or fraudulent misrepresentation to a person, and (2) the inducing of that person thereby to deliver property." 

6. Hence, the petition stands disposed of in the manner stated above.