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2002 DIGILAW 516 (CAL)

RABI KUMAR AGARWAL v. STATE OF WEST BENGAL

2002-08-06

MALAY KUMAR BASU

body2002
MALAY KUMAR BASU, J. ( 1 ) THIS revisional application is directed against the order dated 30/08/1944 passed by the learned Metropolitan Magistrate, 17th Court, Calcutta in G. R. Case No. 1282/85 (T. R. 82/87) under which he framed charge against the accused persons of that case (the present petitioner Ravi Kumar Agarwal being one of them) under Sections 457, 380 and 120-B of the IPC. being aggrieved by this order the accused Ravi Kumar Agarwal, the present petitioner has preferred this revisional application challenging the said order as illegal and unsustainable. ( 2 ) MR. Roy, learned Advocate for the petitioner has contended that the learned Magistrate overlooked the fact that the prosecution had failed prima facie to prove that the de facto complainant was in possession of the disputed room or the disputed furnitures and fixtures thereof at the relevant time and unless this major ingredient of offence of theft is prima facie proved the charge under Sections 380 and 467 cannot be framed. ( 3 ) IN order to examine whether the above submissions of Mr. Roy has got any foundation I have scrutinised the documents under S. 173, Cr. P. C. , that is, the 161 statements and the other documents seized or collected by the Investigating Officer during investigation under provisions of the Cr. P. C. on the basis of which the Court below framed the charges. It appears from the 161 statement of the witnesses examined by the I. O. that they found the accused persons to possess the disputed room including the furnitures. So far as the documents are concerned, Mr. Chatterjee has drawn my attention to a deed styled as deed of transfer dated 27/02/1981 and he claimed that by virtue of the deed the de facto complainant, Mr. Bijoy Kumar Thakkar, sole proprietor of M/s. Fulgent and Co. got his sole proprietorship from the erstwhile proprietor, namely, Mr. Y. Husing Liu. On examination of this deed of transfer I find that it is an unregistered one and it of course contains the various terms under which the said Bijoy Kumar Thakkar became the owner and proprietor of the said business namely M/s. Fulgent and Co. and also the shop room at premises No. 2/1 Ho-chi-min Sarani in dispute in respect of which the said vendor was a monthly tenant under the Credit Union Co-operative Enterprises at a rental of Rs. and also the shop room at premises No. 2/1 Ho-chi-min Sarani in dispute in respect of which the said vendor was a monthly tenant under the Credit Union Co-operative Enterprises at a rental of Rs. 300 per month. ( 4 ) MR. Roy, on the other hand, invites my notice to the documents filed by his client which are made annexures to this revisional application being Annexures Nos. A series B and C. From these annexures it would be found, according to Mr. Roy, that the revisional applicant-accused-Ravi Kumar Agarwal, has been paying charges for the disputed room at the rate of Rupees 300/- per month to the receiver appointed in the Suit No. 771/81 of this Court (Durgabati Ghosh v. Credit Union Co-operative Enterprises Ltd. ). Mr. Roy further points out that the two sisters Smt. Uma Sharaf and Smt. Bimala Sharaf have given written authority and power in favour of the petitioner-Ravi Kumar Agarwal to use and utilise the furnitures and fixtures etc. of the disputed room which they took mortgage from Mr. Yu Hsing Liu, the proprietor of M/s. Fulgent and Co. Mr. Roy also attracts my attention to the letter dated 18th February, 81 written by the petitioner-Ravi Kumar Agarwal to the Credit Union Co-operative Enterprises Ltd. stating that during the absence of Mr. Yu Hsing Liu, proprietor of M/s. Fulgent and Co. he the said Ravi Kumar Agarwal, would remain in possession and occupation of the business of the said M/s. Fulgent and Co. housed at 2/1, Harrington Street as mortgagee and would pay the monthly rent of tenancy on his behalf to the said Co-operative Enterprises Ltd. According to Mr. Roy these documents rather show the possession lying with the petitioner-Ravi Kumar Agarwal all along since 1980 in respect of the disputed room as well as the furnitures and fixtures contained therein and hence according to him the Court below committed an error both of fact and of law by holding that prima facie case under the offending sections of the I. P. C. mentioned above had been made out against him. ( 5 ) IN a case of theft the chief ingredient of the offence of theft which the prosecution is to prima facie establish is that the articles which is alleged to be the subject-matter of theft must be taken from the possession of the de facto complainant. ( 5 ) IN a case of theft the chief ingredient of the offence of theft which the prosecution is to prima facie establish is that the articles which is alleged to be the subject-matter of theft must be taken from the possession of the de facto complainant. In the present case, save and except the deed of transfer of the proprietary business executed by the erstwhile proprietor Mr. Yu Hsing Lie in favour of the de facto complainant, not a single scrap of paper has been filed by the prosecution or collected by the I. O. to show that after the disputed premises including the furnitures and fixtures were transferred in his favour, as alleged (such alleged transfer on the basis of unregistered document is not lawful) the alleged transferee Mr. Thakkar gave effect to his alleged purchase by making payment of the monthly rent in respect of the said premises as was being paid by his predecessors to the Union Co-operative Enterprises Ltd. In the absence of such payment of rent for the disputed premises the theoretical transfer as claimed by virtue of the said deed of transfer cannot be said to have taken effect, particularly when not a single witness whose statements have been recorded by the I. O. under S. 161, Cr. P. C. has made any whisper to the effect that they saw the said de facto complainant, Bijoy Kumar Thakkar, to possess the property on any day. Mr. Chatterjee draws my attention to the statement made by one witness, namely, Jaharlal Saha, before the I. O. to the effect that on one evening about 5 years back he found the petitioner-Ravi Kumar Agarwal to open the padlock of the door of the disputed room with the help of a key and take entry therein in the evening and start using and utilising the furnitures contained in that room. Mr. Chatterjee contends that from this it must be inferred that he was a trespasser and committed theft in respect of the furnitures of that room by using the same. But this is far from correct. At this stage it is the burden of the prosecuting agency to convince the Court that the de facto complainant was in possession of the said room including the furnitures etc. and it was from his possession that the properties were taken out by the accused persons. But this is far from correct. At this stage it is the burden of the prosecuting agency to convince the Court that the de facto complainant was in possession of the said room including the furnitures etc. and it was from his possession that the properties were taken out by the accused persons. But from the statement of the said witness under S. 161, Cr. P. C. mentioned above it is not shown that the de facto complainant Bijoy Kumar Thakkar was in possession of the room or from his possession the room of the properties was taken by the accused. On the other hand this shows that the accused was possessing the room. ( 6 ) THUS, the prosecution having failed to prima facie show that the disputed room and the furnitures and fixtures contained therein were in possession of the de facto complainant prior to the incident as alleged and that being so the major ingredient of the offence of theft remains unfulfilled. In that view of the matter the allegations of theft having not prima facie been established from the materials on record (documents under S. 173, Cr. P. C.) the charge under the above sections cannot be framed. The learned Magistrate committed an error by framing charge under such circumstances and, therefore, the order suffers from an infirmity and must be interfered with. ( 7 ) IN the result the impugned order under which the charges were framed be set aside and the revisional application is allowed. ( 8 ) LET xerox certified copy of this order, if applied for may be supplied on urgent basis. Petition allowed.