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2005 DIGILAW 379 (ORI)

Debaki Swain v. State of Orissa

2005-06-21

R.N.BISWAL

body2005
JUDGMENT R. N. BISWAL, J. : This revision is directed against the order-dated 28.9.2004 passed by the S.D.J.M., Udala, in G.R. Case No.64 of 2003 wherein he refused to discharge the accused-petitioner of the offence under Section 406 of I.P.C. Bereft of unnecessary details the facts leading to filing of this revision is that on 27.2.1994 the O.I.C. of Kaptipada Police station seized the trekker bearing No. OIX-4950 on the allegation that it was being used by accused Raj Kishore Mallick in commit¬ting offence under Section 379/411 I.P.C. in connection with Kaptipada P.S. case No.3 of 1994 corresponding to G.R. case No. 12 of 1994 of the Court of S.D.J.M., Udala. While the case was sub-judice, the petitioner claiming herself to be the registered owner of the said vehicle filed a petition under Section 457 Cr.P.C. for interim release of the same in her favour. The peti¬tion was allowed subject to furnishing cash security of Rs.15,000/- on condition that she would not dispose of the vehi¬cle in any manner till final disposal of the case and produce the same before the Court as and when required. After conclusion of the trial of G.R. Case No.12 of 1994 the S.D.J.M. held the ac¬cused not guilty of the aforesaid offences and acquitted him thereof on 15.9.2000. However, he ordered that the seized arti¬cles be confiscated to the State four months after the appeal period is over, if there is no appeal and in case of appeal subject to the decision of the appellate Court. On 11.3.2002 the petitioner filed a petition before the S.D.J.M., Udala for refund of Rs.15,000/- she had furnished as security for interim release of the vehicle in her favour along with accrued interest there¬on, but it was rejected. Being aggrieved with the said order the petitioner filed a petition under Section 482 Cr.P.C. giving rise to criminal Misc. Case No.3435 of 2002 before this Court. While dismissing the Misc. Case, this Court on 1.7.2002 ordered that if the petitioner would not volunteer to produce the vehicle in question before the Court of S.D.J.M. Udala within a period of three weeks from the date of order, it would be appropriate for the S.D.J.M. to take stringent steps to secure possession of the same. While dismissing the Misc. Case, this Court on 1.7.2002 ordered that if the petitioner would not volunteer to produce the vehicle in question before the Court of S.D.J.M. Udala within a period of three weeks from the date of order, it would be appropriate for the S.D.J.M. to take stringent steps to secure possession of the same. Pursuant to the order dated 1.7.2002 of this Court, the petitioner filed a memo on 22.7.2002 before the Court below inti¬mating that she could not produce the vehicle since it was lying in N.K. Garage at Chandikhol for repair. On the same date she filed another petition for refund of the cash furnished, in connection with interim release of the aforesaid vehicle in her favour. While rejecting the petition, the S.D.J.M. directed the O.I.C. of Udala Police Station to seize the vehicle and produce it before him. Simultaneously he directed the petitioner to cause production of the vehicle before him without delay or else it was further ordered that conditional N.B.W. along with D.W. would be issued for procuring the same for the purpose of confisca¬tion. On 29.7.2002 the petitioner challenged the said order under Section 482 Cr.P.C. before this Court in Criminal Misc. Case No.177 of 2002 wherein while dismissing the Misc. case this Court vide order dated 13.8.2002 imposed cost of Rs.2000/- against the petitioner for non-compliance of Court’s order passed in C.M.C. No.3435 of 2005. While the matter stood thus, on 25.2.2003 the S.I. of Po¬lice, Kaptipada P.S. lodged an F.I.R. before O.I.C. of the same P.S. on the allegation that even though the petitioner had under¬taken to produce the aforesaid vehicle before the Court of S.D.J.M., Udala as and when required, in spite of Court’s order she did not produce it before him. In absence of the O.I.C. the A.S.I. himself registered Kaptipada P.S. case No.9 of 2003 giving rise to G.R. Case No.64 of 2003. After completion of investiga¬tion, charge sheet was submitted against the accused-petitioner for the offence under Section 406 I.P.C. Cr.P.C. On 3.9.2004 a petition under Section 239 Cr.P.C. was filed before the S.D.J.M., Udala on behalf of the petitioner to discharge her of the said charge. After completion of investiga¬tion, charge sheet was submitted against the accused-petitioner for the offence under Section 406 I.P.C. Cr.P.C. On 3.9.2004 a petition under Section 239 Cr.P.C. was filed before the S.D.J.M., Udala on behalf of the petitioner to discharge her of the said charge. As per her petition the said vehicle was given in N.K. garage, Chandikhol for repair but due to want of fund she could not get it back till 9.10.2002 when it was seized by the O.I.C. of Barachanna P.S. and given in zima of the garage owner, Niazuddin. So there was no occasion for the A.S.I. to lodge F.I.R. on 25.2.2003 against the accused-petitioner on accusation of commis¬sion of offence under Section 406 I.P.C. After hearing learned counsel for the petitioner and the Asst. Public Prosecutor, the learned S.D.J.M. Udala, rejected the petition holding that the accused - petitioner who was entrusted with the vehicle in question failed to produce it before the Court whereby she violated the condition zimanama and as such prima facie materials are there against her for the offence under Section 406 I.P.C. Being aggrieved with this order the petitioner has preferred this revision as mentioned earlier. Learned counsel for the petitioner submitted that there is no material on record to attract the offence under Section 406 I.P.C. against the petitioner. Hence, the trial Court ought have discharged her thereof. To establish a case under Section 406 of I.P.C. the points requiring proof are : (1) That the accused was entrusted with property or with dominion over it. (2) That he- (a) misappropriated it, or (b) converted it to his own use, or (c) used it, or (d) disposed of it. (3) That he did so dishonestly. (4) That he did so in violation of- (i) any direction of law prescribing the mode in which such trust was to be discharged, or (ii) any legal contract, express or implied, which he has made touching the discharge of such trust; or (5) That he wilfully suffered any person to do as in (2), (3) and (4) (i) or (ii) In the present case admittedly the petitioner was entrusted with the trekker on condition that she would produce it before the Court as and when required. As per her case since the vehicle developed mechanical defects she gave it in the garage for repair and could not get it back for shortage of money. When the peti¬tioner undertook to produce the vehicle before the Court below as and when required it was her duty to keep it in running condi¬tion. Whether or not the petitioner used the vehicle carelessly with dishonest intention to render it unfit for use, so as to avoid its production before Court can only be determined at the stage of trial. Learned counsel for the petitioner further sub¬mitted that the vehicle in question having been seized by the police on 9.10.2002 from the garage was handed over in zima of the garage owner. So, by the time the F.I.R. was lodged the vehicle was in zima of the garage owner and not with the peti¬tioner. Plea of the defence cannot be considered at the stage of framing charge. Even if it is assumed that by the time F.I.R. was lodged in connection with this case, the custody of the trekker was there with the owner of the garage, still then the petitioner may be liable for the offence under Section 406 I.P.C. if it is established that deliberately with dishonest intention she left the vehicle in the garage after making it unfit to ply to avoid its production before the Court. As per Section 239 of Cr.P.C. if the magistrate after going through the police papers considers the charge against the accused to be groundless, he may discharge the accused. From the facts and circumstances of the present case as discussed above it cannot be said that the charge against the accused-petitioner is groundless. Hence, I am not inclined to interfere with the impugned order passed by the learned S.D.J.M., Udala. Accordingly, the Criminal revision stands dismissed. Cri. Revision dismissed.