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Madhya Pradesh High Court · body

2006 DIGILAW 165 (MP)

Mohmmad Ali v. State of M. P.

2006-01-27

A.K.SHRIVASTAVA

body2006
ORDER 1. This revision petition has been filed against the order dated 20.7.1998 passed by learned Judicial Magistrate First Class, Jabalpur framing the charge under section 403, IPC. 2. Kotwali Police, Jabalpur arrested the accused-applicant on 26.1.1998 on the allegation that he had stolen electric wire worth Rs.1,800/- which was seized from an Auto Rickshaw and which was stationed opposite the house of the accused-appellant. The police filed a complaint against the applicant, a copy of which has been filed as Annexure-e. In the complaint it has been mentioned that the applicant was arrested on 26.1.1998 and the seizure memo was prepared showing the seizure of 15 bundles of electric wire and an Auto Riksha No. MP-20/9614. The seizure memo was made under section 41 (1-4), CrPC/379, IPC. The statements of Munna and Santosh Kumar were recorded who were the witnesses of the alleged seizure memo. One Bhure Khan was also examined who was the driver of the said Auto Rickshaw. The statement of Bhure Khan has been placed on record. According to his statement, he brought the impugned articles (electric wire) from the shop of Rubban Kabadi near Chhar Khamba. No statement of Rubban Kabadi was recorded by the police. It appears that the applicant was arrested on account of non-production of the receipt of purchase of the wire. A Roznamcha report has also been annexed with the complaint indicating that no claimant of property could be traced. On going through the complaint submitted by the police before the learned Magistrate, it is gathered that the Electricity Department was also interrogated but they denied any theft having taken place from their stores. 3. According to the complaint, a case under section 403, IPC is made out against the applicant. The learned Magistrate, on bare perusal of the complaint, Roznamcha, seizure memo and the statements of the witnesses recorded by the police, framed the charge under section 403, IPC against the applicant by the impugned order. Hence this revision petition has been tiled by the applicant. 4. It has been argued by Shri Jaisani, learned counsel for the applicant that it has come in the statement of auto rickshaw driver recorded by the police that he brought the impugned electric wire from the shop of one Rubban Kabadi. The police did not record the statement of Rub ban Kabadi though his address was given by the auto rickshaw driver. The police did not record the statement of Rub ban Kabadi though his address was given by the auto rickshaw driver. It has also been putforth by learned counsel that since the applicant could not produce any bill or receipt of the impugned electric wire, therefore, the applicant has been roped in there alleged offence. According to the learned counsel, prima facie there is no material to hold the applicant to be guilty of the offence punishable under section 403, IPC. Thus, it has been prayed that this revision petition be allowed and the charge framed against the applicant under section 403, IPC be quashed. 5. On the other hand, Shri G.P. Singh, learned Dy. Government Advocate, submitted that after x-raying the entire material placed on record, learned Judicial Magistrate First Class rightly framed the charge punishable under section 403, IPC against the applicant and this revision petition be dismissed. 6. After having heard learned counsel for the parties, I am of the view that this petition deserves to be allowed. 7. I have gone through Annexure-C which is the complaint filed by the police under section 403, IPC. On going through this complaint, it is gathered that on 26.1.1998 a seizure memo was prepared against the accused-applicant showing seizure of 15 bundles of electric wire and an auto rickshaw No. MP-20/9614. The seizure memo was prepared under section 41 (1-4), CrPC/379, IPC. The statement of one Bhure Khan was recorded by the police, who was the auto rickshaw driver and he had also stated that he had brought the electric wire from the shop of Rubban Kabadi near Chaar Khamba. However, no statement of Rubban Kabadi was recorded by the police. Roznamcha report has also been annexed with the complaint indicating therein that no claimant of the property could be traced and interrogation was also made from the Electricity Department but they denied any theft from their department and stores. Thus, nobody has come forward to own the impugned electric wire. The applicant is claiming the impugned electric wire of his own, however, he has been made accused on account of non-furnishing of the receipt of the electric wire though it has come on record that the applicant brought the wire from one Rubban Kabadi. The police did not take any pains to record the statement of said Rubban. The applicant is claiming the impugned electric wire of his own, however, he has been made accused on account of non-furnishing of the receipt of the electric wire though it has come on record that the applicant brought the wire from one Rubban Kabadi. The police did not take any pains to record the statement of said Rubban. There is no material on record in order to show that any person except the applicant, is claiming the impugned wire of his own. Merely because the applicant could not produce the receipt of the purchase of the wire, specially in the facts and circumstances that the police did not record the statement of Rubban Kbadi from whom it is said that applicant purchased the wire, it is difficult to hold that prima facie there is any material against the applicant in order to rope him under section 403, IPC. 8. Section 403, IPC speaks about dishonest misappropriation of property. This section defines criminal misappropriation and prescribed penalty for it. Criminal misappropriation takes placed when the possession has been innocently come by, but where, by a subsequent change of intention, or from the knowledge of some new fact with which the accused was not previously acquainted, the retaining becomes wrongful and fraudulent. The essence of the offence of criminal misappropriation is that the property of another person comes into the possession of the accused in some neutral manner and is misappropriated or converted to his own use by the accused. If section 403, IPC is analysed, it is gathered that it has following ingredients which reads thus: "(i) The property must belong to a person other than accused; (ii) the accused must have misappropriated property or converted it to his own use; and (iii) there must be dishonest intention on the part of the accused." If the above said tests and ingredients are tested in the present factual scenario, it would reveal that there is nothing on record in order to show that the impugned electric wire belongs to any another person other than the accused. On the contrary it has come on record that applicant has purchased it from one Rubban Kabadi. The police has not taken any pains to record the statement of Rubban Kabadi and there is nothing on record in order to show that Rubban Kabadi did not sell the electric wire to the applicant. On the contrary it has come on record that applicant has purchased it from one Rubban Kabadi. The police has not taken any pains to record the statement of Rubban Kabadi and there is nothing on record in order to show that Rubban Kabadi did not sell the electric wire to the applicant. Merely because the applicant was not having any receipt of the wire, would not be a ground to hold that he committed offence under section 403, IPC. On the record it has come that the wire was purchase by the applicant from Rubban Kabadi. It is a matter of common knowledge that if some articles are purchased from kabadi (one who sells old and broken articles) normally receipts are not taken. In this view of the matter, mrely because the applicant was not having any receipt of purchase of the impugned wire, it cannot be said that he is prima facie guilty of the offence punishable under section 403, IPC. 9. In the case of Ramaswamy Nadar v. The State of Madras [ AIR 1958 SC 56 ], in para 7 the Supreme Court has laid down the law when an offence under section 403, IPC is made out, which reads thus: "In order to prove an offence under S. 403, Indian Penal Code, the prosecution has to prove that the property, in this case, the net amount of ninety-six thousand odd rupees, was the property of the prosecution witnesses 1 to 3 and others, and (2) that the accused misappropriated the sum or converted it to his own use, and (3) that he did so dishonestly. In our opinion, none or these constituent elements of the offence can be categorically asserted to have been made out." The case of present applicant is rather on better footing. In the present case, as per own case of the prosecution, no person is coming forward to claim the impugned electric wire of his own. Even the Electricity Department is not claiming the said wire and is denying any theft. Thus, the view of this Court is that prima facie there is no material in order t, hold that the applicant is guilty of any offence under section 403, IPC and, therefore, the charge under section 403, IPC which has been frame against the applicant is without any material on record. 10. Thus, the view of this Court is that prima facie there is no material in order t, hold that the applicant is guilty of any offence under section 403, IPC and, therefore, the charge under section 403, IPC which has been frame against the applicant is without any material on record. 10. Judging from all the angles, I am unable to uphold the charge under section 403, IPC which has been framed against the applicant. Eventually, the same is hereby quashed. 11. Resultantly, this revision petition succeeds and is hereby allowed.