Research › Browse › Judgment

Gauhati High Court · body

1995 DIGILAW 55 (GAU)

Promod Tamuly v. Kanak Chandra Moran and Another

1995-03-02

B.N.SINGH NEELAM

body1995
This criminal revision is so preferred by the petitioner-accused Kanak Chandra Moran challenging the impugned orders dated 7.4.93 and 28.5.93 so passed by the Judicial Magistrate First Class; Sibsagar in CR Case No.26 of 1993 by virtue of which particularly by the order dated 28.5.93 the learned Court below after taking cognizance of the offence has issued non-bailable warrant for the appearance of the accused-petitioner as to face the trial in connection with the said proceeding arising out of a complaint case so lodged by Ashim Khanikar figuring here as opposite party No. 1 relating to the petitioner-accused, as claimed, cheating him and thus committing an offence coming under the purview of section 420IPC in connection with the purchase of an elephant, namely, 'Jaymala' for which according to opposite party-complainant No.l, Rs.60,000/- out of Rs.80,000/- as the price fixed for the elephant was even paid to the accused who figures in the criminal revision as petitioner. 2. Mr. GN Sahewalla, learned counsel for the petitioner by particularly challenging the order dated 28.5.93 so passed by the. learned Court below in the said CR Case 26 of 1993 claimed that the learned Court below has erred in taking cognisance of the offence against the petitioner and passing orders under section 204 CrPC whereas by the plain reading of the complaint petition which .is marked here as Annexure I, it will transpire that the case so put forward by complainant-opposite party No.l was out and out a case of civil nature and if there was any breach of contract the complainant-opposite party No. 1 was at liberty as to file civil suit for the specific performance of the contract. It is pointed out that the ingredients of section 420 IPC has not been met with. In support of this contention on behalf of the petitioner-accused, 3 reported cases are referred, i.e. (1) (1992) Suppl SCC (1) 335 (State of Haryana & others vs. Bhajanlal & others). It is pointed out that the ingredients of section 420 IPC has not been met with. In support of this contention on behalf of the petitioner-accused, 3 reported cases are referred, i.e. (1) (1992) Suppl SCC (1) 335 (State of Haryana & others vs. Bhajanlal & others). By referring to the guidelines so indicated to be looked into prior to the quashing of a proceeding under section 482 CrPC or under Article 226 of the Constitution of India, the seven points as guidelines so incorporated in the said judgment are to be looked into and in the instant case since the complainant had filed a criminal case with ulterior motive for wreaking vengeance, the cognizance of the offence should not have been taken and further more by the plain reading of the contents of the complaint petition it will transpire that in the surrounding facts and circumstances there was bleak chance of the petitioner being convicted and that being the position also instead of issuing process the learned Court below should have rather dismissed the complaint petition under section 203 CrPC. In this connection the learned counsel for the petitioner has also referred to para 98 of the above reported judgment. In support of the contention so made above, the learned counsel for the petitioner has also referred to AIR 1979 SC 850 (Trilok Singh & others vs. Satya Deb Tripathi) by particularly referring to para 5 of this reported case it is pointed out that in the said case the exaggerated version of the complainant was not accepted which was declared to the untrustworthy and unnatural and the matter to be of civil dispute which very much tallies with the instant case. Lastly, the learned counsel for the petitioner has also banked upon another decision and has referred to (1995) 1 Gauhati Law Reports 183 [1995 (1) GLJ351] (Dr. Ardhendu Kumar Dey vs. State of Assam). By referring to para 18 of this judgment it is submitted that when a complaint case is so filed the learned Court below is not expected to observe more formalities by examining the complainant on solemn affirmation but an intelligent enquiry is to be made into the subject matter of the complaint as to enable to exercise the jurisdiction reasonably. By referring to para 18 of this judgment it is submitted that when a complaint case is so filed the learned Court below is not expected to observe more formalities by examining the complainant on solemn affirmation but an intelligent enquiry is to be made into the subject matter of the complaint as to enable to exercise the jurisdiction reasonably. On behalf of the petitioner it is submitted that the elephant in question was recovered from the house of Promod Tamuly does not in any way affect the case of the petitioner and in this connection particularly the affidavit-in-opposition so filed on behalf of the petitioner in connection with this case dated 4.1.94 and 2.2.95 are referred which are so filed when opposite party No.2 Promod Tamuly made a prayer for his impleading as a party with a detailed application advancing his cause as finding place on the record. 3. This will not be out of place to mention that when the rule was so issued in this criminal revision a prayer was so made by Promod Tamuly, opposite party No.2 for his being impleaded as he was claiming the said elephant in question on the basis of an agreement relating to sale to him by the accused-petitioner and the said agreement is also filed which is marked as Annexure A. Promod Tamuly, opposite party No.2 is represented by his learned counsel Mr. SK Kejriwal. 4. Mr. GK Bhattacharjee, learned counsel for the opposite party No.l is also heard at length. In all fairness it is submitted that he does not dispute the principles set under which circumstance a proceeding can be quashed even at the initial stage under section 482 CrPC by this Court in connection with the FIR or complaint so filed. 4. Mr. GK Bhattacharjee, learned counsel for the opposite party No.l is also heard at length. In all fairness it is submitted that he does not dispute the principles set under which circumstance a proceeding can be quashed even at the initial stage under section 482 CrPC by this Court in connection with the FIR or complaint so filed. As regards the ruling cited on behalf of the petitioner and the principles so set therein are accepted by the learned counsel for the opposite party No. 1 but by referring to the definition of 'cheating' as detailed in section 415IPC, it is pointed out that it is the intention of the person said to have committed the offence coming under the purview of section 415 IPC which is to be seen and in this connection particularly attention is drawn to illustration (g) and it is pointed out that in the instant case in the background of the facts and circumstance of the case, the day the petitioner-accused received Rs.60,000/- in advance he had his intention as to fraudulently deceive the complainant-opposite party No.1 and that is why subsequently after receiving Rs.60,000/- the rest amount of Rs.20,000/- was not so received and rather cunningly the property, i.e., the elephant was also removed as to deprive the complainant to have its possession which was so recovered from the house of opposite party No.2 Promod Tamuly when the police intervened enforcing search warrant issued by the Court. It is pointed out that cognizance of the offence is so taken in the instant case after examining the complainant and his two witnesses also after being satisfied with regard to the recovery of the elephant being so made. It is also submitted that by the plain reading of the complaint it will transpire that the ingredients of cheating have been incorporated therein and finding prima facie material the learned Court below has thus rightly passed the impugned order dated 28.5.93 being satisfied prima facie that fraudulent act was so committed by the petitioner-accused for cheating the complainant for his wrongful gain. The learned counsel for the opposite party has also referred to the story so coming from the mouth of Promod Tamuly, opposite party No.2, which reveals that petitioner-accused had also received handsome amount from Promod Tamuly against the said elephant and the possession of the same was also so handed over to Promod Tamuly from where the elephant was subsequently recovered and all these being taken together will go to throw light relating to the conduct of the petitioner-accused who had from very first day the dishonest intention as to deprive him of Rs.60,000/- so already paid by the complainant being received admittedly by the petitioner-accused. Hence lastly it is submitted that this is a fit case in which the learned Court below was perfectly justified in passing the impugned order under section 204 CrPC because prima facie a case under section 420 I PC was made out. 5. Mr. SK Kejriwal, learned counsel for the opposite party No.2 has pressed into service all the points so taken at the time of prayer so made for impleading him as a party and has submitted that the said elephant was sold by the petitioner-accused to him and by referring to Annexure A filed on his behalf, it is submitted that rightly interim custody of the elephant in question is given to this opposite party No.2 in the surrounding circumstances. The learned counsel for the opposite party No.2 has denied with regard to the point so raised on behalf of the petitioner-accused of getting an agreement with Promod Tamuly executed under some pressure. 6. After hearing the learned counsel for the accused-petitioner and also the learned counsel for the opposite parties Nos. 1 and 2,1 have carefully gone through the contents of the complaint petition with that of the annexures filed therein. I have also gone through the application so filed by Promod Tamuly and the counter affidavit so filed on behalf of petitioner-accused which are dated 4.1.94 and 2.2.95 I find that in the present case there was prima facie material before the learned Court below as to pass necessary orders under section 204 CrPC and therefore on no account it can be said that the impugned order so passed by the learned Court below is perverse as claimed by the petitioner-accused. I donot find that the case so put forward coming from the mouth of the complainant-opposite party No. 1 was absurd and palpably false, not making out any case coming under the purview of cheating and in the background of the facts and circumstances of this case the cognizance of the offence is taken because the learned Court below felt that there was prima facie material as to presume that the said amount of Rs.60,000/- so initially received by the petitioner-accused from the complainant was so received with an intent as to cheat him and that is why the elephant in question was so slipped off and the balance money was also not received. In my considered opinion, taking the contents of the complaint petition at its face value, I find that there was prima facie material as to proceed against the accused as it discloses a cognizable offence for which the petitioner- accused was liable to be prosecuted and the allegations were not such as to hold them inherently improbable. I also donot find any cogent materials on record to come to the conclusion that the complaint was filed maliciously as to take vengeance and that being the position on the grounds detailed above, I donot find that the petitioner-accused has made out any case as to interfere with the impugned order dated 28.5.93. Consequently, I donot find any merit in this petition and the prayer so made on behalf of the petitioner-accused for quashing the proceeding does not seem justified. Hence the criminal revision petition is dismissed.