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2000 DIGILAW 127 (GAU)

Amal Chandra Lahkar v. Binu Sharma

2000-03-24

P.C.PHUKAN

body2000
The petitioner Amal Chandra Lahkar instituted Criminal Revision No. 162 Of 1997 praying for quashing proceedings in complaint case number CR 163/97 instituted by the opposite party Smti Binu Sharma and for setting aside the order dated 6.3.97 passed therein by the learned Judicial Magistrate at Tezpur granting custody of the omni tourist vehicle ASK 2882 to the opposite party. 2. In Criminal Revision No. 162 of 1997, the petitioner Amal Chandra Lahkar states that he is the owner of the above mentioned vehicle. On 6.7.96 he executed a deed (Annexure A) of agreement to sell the vehicle to the opposite party Smti Binu Sharma for a consideration of Rs.2 lakhs. The same day the opposite party paid to the petitioner Rs. 60,000 and agreed to pay the balance of Rs. 1,40,000 in two equal installments on 10.8.96 and 31.12.96. On 6.7.96 itself the possession of the vehicle was handed over to the opposite party along with its documents. It was agreed that all responsibilities and liabilities would be borne by the opposite ^ party from 7.7.96 to 31.12.96, and that on final payment on 31.12.96 the petitioner would sign the requisite forms of sale and purchase of the vehicle for its transfer in the name of the opposite party. The term/condition No. 8 in the deed (Annexure A) of the agreement to sell, reads as under: “8. That if the first party (purchaser) will not be able to pay the total consideration amount as agreed upon from time to time, the second party (seller) will have right to seize the possession of the vehicle from the first party (purchaser), and in that event, the first party (purchaser), will have no right to claim the same or for any damage or losses.” The petitioner alleges that the opposite party failed to pay the balance of Rs. 1 lakh to him within the stipulated time, and as per the above mentioned terms d of the agreement he took possession of the vehicle. 3. As against the petitioner taking away the vehicle, the opposite party filed a complaint (Annexure B) against the petitioner under section 379 IPC, registered as complaint case number CR 163/97 on 3.2.97, alleging that she paid Rs. 3. As against the petitioner taking away the vehicle, the opposite party filed a complaint (Annexure B) against the petitioner under section 379 IPC, registered as complaint case number CR 163/97 on 3.2.97, alleging that she paid Rs. 1,10,000 to the petitioner and agreed to pay the balance amount by 31.12.96; but as the vehicle met with an accident on 5.12.96 and had to be-repaired, payment could not be made by 31.12.96, and the petitioner then took away the vehicle on 18.1.97. The opposite party disclosed in her complaint (Annexure B) that she lodged an FIR in Goroimari Police Station in relation to the same offence. The learned Magistrate, therefore, called for a police report as required under section 210 CrPC. As the police report did not disclose that any investigation was in progress, the learned Magistrate ordered issuance of summons to the accused-petitioner and search warrant in respect of the vehicle and ordered to hand over possession thereof to the complainant-opposite party vide order dated 10.2.97. On 25.2.97 the accused-petitioner appeared in the Court and filed a petition for giving custody of the vehicle to him. The learned Magistrate rejected his petition by his order date of 6.3.97 impugned in the instant Criminal Revision No. 162 of 1997. 4. By an order dated 3.4.97 this Court admitted the above mentioned revision and stayed further proceedings of the complaint case number CR 163/97 instituted by the opposite party. By another order dated 27.5.98 this Court directed that this revision be listed for hearing along with Criminal Revision No. 485 of 1997 instituted by the opposite party-complainant Smti Binu Sharma. Accordingly, both the criminal revisions were heard together and is being disposed of by this common judgment and order. I have heard the learned counsel for the parties and have considered the records of the case. 5. In Criminal Revision No. 485 of 1997, Smti Binu Sharma states that as a counter blast to the complaint case number CR 163/97 filed by her on 3.2.97, Amal Chandra Lahkar filed a complaint (Annexure D) under section 403/427 IPC registered as complaint case number CR 167/97 on 10.2.97 alleging that since she could not pay the balance amount by 31.12.96 as agreed, he took possession of the vehicle under condition No. 8, but the documents of the vehicle were not returned to him in spite of repeated demands. Amal Chandra Lahkar, therefore, prayed that search warrant be issued in respect of those documents and that the same be handed over to him. Smti Binu Sharma states that the said Complaint case number CR 167/97 was later dismissed for non-prosecution. Smti Binu Sharma further states that Amal Chandra Lahkar, after filing Criminal Revision No. 162 of 1997 on 1.4.97 and after obtaining therein interim stay of further proceedings of her complaint case number CR 163/97, lodged an FIR (Annexure E) under section 406/506 IPC registered as Tezpur PS Case No. 186/ 97 (GR Case No. 430/97) on 11.4.97 alleging that when he approached Smti Binu Sharma demanding payment of the balance amount of Rs. 1 lakh, she threatened him. In connection with this case, the police seized the vehicle. Both Amal Chandra Lahkar and Smti Binu Sharma filed petitions for custody of the vehicle. The learned Magistrate by order dated 14.9.97 passed in Tezpur PS Case No. 186/97 (GR Case No.480/97) granted custody of the vehicle to Amal Chandra Lahkar. 6. Being aggrieved, Smti Binu Sharma instituted Criminal Revision No. 485 of 1997 on 12.8.97 in this Court praying for quashing the FIR (Annexure E) dated 11.4.97 lodged by Amal Chandra Lahkar and the proceedings in Tezpur PS Case No. 186/97 (GR Case No. 480/97) arising out of the said FIR and also for setting aside the order dated 14.7.97 passed in the said case by the learned Magistrate granting custody of the vehicle to Amal Chandra Lahkar. On the other hand, I have already said at the outset, Amal Chandra Lahkar instituted Criminal Revision No. 162 of 1997 on 1.4.97 in this Court for quashing the proceedings in the complaint case number CR 163/97 filed by Smti Binu Sharma and also for setting aside the order dated 6.3.97 passed in the said case by the learned Magistrate granting custody of the same vehicle to Smti Binu Sharma. 7. It is settled law that the High Court can exercise the inherent power under section 482 CrPC to quash FIR/proceeding where the allegations in the FIR or the complaint, taken at its face, value, do not constitute any criminal offence. 7. It is settled law that the High Court can exercise the inherent power under section 482 CrPC to quash FIR/proceeding where the allegations in the FIR or the complaint, taken at its face, value, do not constitute any criminal offence. In such cases it is a matter merely of looking at the FIR or the complaint to decide whether the offence alleged is disclosed or not If not, it would be legitimate for the High Court to quash the FIR/proceeding, for it would be manifestly unjust to allow the abuse of the process of the Court. 8. The complaint (Annexure B to Criminal Revision No. 162 of 1997) filed by Smti Binu Sharma giving rise to complaint case number Cr P63/97 reads as under: “It is to inform you that the informant, i.e., the complainant was agreed to purchase a vehicle bearing No. AXK 2882 and executed an agreement on 6.7.96 to purchase the vehicle at an amount of Rs. 2,00,000 and accordingly paid Rs. 60,000 in advance and the balance amount was to be paid from time to time and ultimately, I have paid a sum of Rs. 1,10,000 to the petitioner and agreed to pay the balance amount by 31.12.96, but due to an accident of the said vehicle on 5.12.96, the-vehicle had to repair and as such balance amount could not be paid by 31.12.96. Therefore the accused on 18.1.97 took away the vehicle while it was running without the knowledge of the complainant.” 9. At the top of the complaint petition it is stated 'section involved 379 IPC. But a mere look at the above complaint petition would show that the allegations therein taken at its face value do not constitute any criminal offence, and for that matter, any offence under section 379 IPC. For, Amal Chandra Lahkar took away the vehicle as per terms/condition No.8 quoted in paragraph 2 of this judgment. In Subhash Chancier Betala's case reported in 1989 Crl LJ 1850 (Gauhati) (1988 (1) GLJ NOC 29), accused gave the vehicle in question to the complainant under hire purchase agreement; the agreement entitled the accused to terminate the agreement for non-payment of monthly installment and to take possession of the vehicle; on default in payment the accused took possession of the vehicle and informed the complainant who made a complaint of the theft against the accused. This Court quashed the proceedings. This Court quashed the proceedings. In the instant case, the complaint having disclosed no offence, the learned Magistrate vide his order dated 10.2.97 should not have ordered issuance of summons to Amal Chandra Lahkar and search warrant in respect of the vehicle and should not have ordered to hand over possession thereof to Smti Binu Sharma and then vide his order dated 6.3.97 should not have rejected the petition of Amal Chandra Lahkar for custody of the vehicle. 10. In view of what is stated above, I quash the proceedings in complaint case number CR 163/97, instituted by Smti Binu Sharma. All orders including those passed on 10.2.97 and 6.3.97 in the said case stand quashed. It therefore, follows that the possession of the vehicle in question be given back to Shri Amal Chandra Lahkar who is entitled to such possession as per term/condition No. 8 of the deed of agreement to sell. 11. I now revert back to the FIR Annexure E (to Criminal Revision No. 485 of 1997) lodged by Amal Chandra Lahkar giving rise to Tezpur PS Case No. 1867 97 (GR Case No. 480/97). This FIR reads : “It is submitted that on 6.7.96 an agreement was executed between myself and Srimati Binu Sharma, resident of Debendranagar, Borghat for sale of my vehicle AXK 2882 (407 Bus) through her husband. According to agreement total consideration money was required to be paid to me by 31.12.96 but until today she has paid only Rs. 1,00,000 keeping the balance of Rs. 1,00,000. On demanding payment at their house, the accused and her husband threaten me and on several occasions in the past they misbehaved with me with such intention for not paying the amount.” On receipt of the above FIR the police registered a case under section 406/ 506 IPC. Obviously, the facts alleged in the FIR do not attract section 406 IPC. And as per the First Schedule to CrPC, offence under section 506 IPC is non-cognizable. The above FIR thus does not disclose commission of a cognizable offence against Smti Binu Sharma, and therefore the investigation commenced upon such FIR is liable to be quashed. Even otherwise, the allegation in the FT is too vague without mentioning any date of occurrence and other particulars to constitute an offence under section 506, IPC. 12. The above FIR thus does not disclose commission of a cognizable offence against Smti Binu Sharma, and therefore the investigation commenced upon such FIR is liable to be quashed. Even otherwise, the allegation in the FT is too vague without mentioning any date of occurrence and other particulars to constitute an offence under section 506, IPC. 12. In view of the .above, I quash the investigation commenced upon the FIR (Annexure E to Criminal Revision No. 485 of 1997) and the proceedings in Tezpur PS Case No. 186/97 (GR Case No. 480/97). All orders passed in such proceedings stand quashed. As regards the vehicle in question I have passed orders in paragraph 10 of this judgment. The parties may seek redress in appropriate civil Court. In the result, both the Criminal Revision No. 162 of 1997 and Criminal Revision No. 485 of 1997 are allowed as indicated above.