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2007 DIGILAW 536 (PAT)

Akhileshwar Singh v. State Of Bihar

2007-03-15

MADHAVENDRA SARAN

body2007
Judgment MADHAVENDRA SARAN, J. 1. This application u/s 482 of the Code of Criminal Procedure (in short as Code) has been filed for quashing the order dated 26.3.1998 passed by Shri G.S.R. Tripathy, Judicial Magistrate, Gaya in Complaint case no. 892 of 1993 corresponding to Tr. No. 312/98 whereby and whereunder he has rejected the prayer of discharge made on behalf of the petitioners and posted the case for framing of charge u/s 403 and 382 of the Indian Penal Code. 2. The case of complainant/OP no. 2, in short, is that he purchased a Mini Bus at total price of Rs. 2,05,000/- from petitioner, Akhileshwar Singh on 15.9.92 under a sada agreement executed by them. Out of the total consideration amount the complainant paid Rs. 80,000/- at the time of execution of the agreement and Rs. 35,000/- was paid by him to petitioner no. 1 on 21.1.1993. It is said that said Mini Bus was purchased by petitioner no. 1 after taking financial help from the Bank and on the date of agreement a sum of Rs. 90,000/- was outstanding due against the bus which as per agreement was to be paid by the complainant to Bank with interest from the date of said agreement. The possession of the bus was handed over to the complainant. He started plying the same. In the month of May, 1993 the complainant fell ill and so he stopped the plying of the bus and it was kept at the brick kiln of Rajesh Brick Works. It is alleged that on 17.6.93 the two petitioners came with some unknown criminals and on the point of pistol they took away the bus to some unknown place. It appears that cognizance was taken in the case and before charge the complainant examined three witnesses and by the impugned order the learned Magistrate posted the case for framing of charge after rejecting the prayer of discharge made on behalf of the petitioners. Against the said order dated 26.3.98 the present application for quashing has been filed before this court. 3. It has been contended that petitioner no. 1 in the year 1992 decided to sell the bus in question in favour of complainant for an amount of Rs. 2,05,000/- under agreement dated 15.9.92 vide annexure- 3(i) to the application. Against the said order dated 26.3.98 the present application for quashing has been filed before this court. 3. It has been contended that petitioner no. 1 in the year 1992 decided to sell the bus in question in favour of complainant for an amount of Rs. 2,05,000/- under agreement dated 15.9.92 vide annexure- 3(i) to the application. The last condition of the said agreement was that the bank loan prior to 14.9.92 in excess of the amount agreed by the parties would be payable by seller of the bus and the purchaser would be liable to pay Bank loan after 14.9.92, that is, the date on which possession of bus was handed over to the purchaser. He further contended that the second agreement was entered into between the parties on 21.1.93 on which date complainant paid Rs. 35,000/- to petitioner no. 1 and the said agreement indicates that loan amount of the Bank prior to 14.9.92 was Rs. 90,000/- and the complainant would start paying Rs. 8,000/- on the 20th of every month to the Bank from February, 1993 to October, 1993 and accordingly, make payment of the entire loan amount to the Bank by October,1993. The agreement further postulates that if three consecutive instalments were not paid in terms of the agreement in that event the seller will have the right to take possession of the bus after giving information to the purchaser. The agreement also contains a clause that till the bank dues were paid by the purchaser, the seller will have right to check payment of tax token in respect of the bus. Learned counsel further contended that out of the total price fixed for the bus the complainant paid Rs. 80,000/- at the time of execution of the agreement and Rs. 35,000/- was paid by him to petitioner no. 1 on 21.1.93. Learned counsel pointed out that petitioners after taking the vehicle in their possession waited for the complainant so that he may clear the Bank dues but the complainant did not pay even a single instalment to the Bank although he plied the vehicle on road right from 15.9.92 to 16.6.93. Learned counsel, thus, contended that it is the complainant who is guilty of breach of trust and not the petitioner no. 1. The act of the petitioners is directly in terms of the agreement and no criminal offence is made out against them. 4. Learned counsel, thus, contended that it is the complainant who is guilty of breach of trust and not the petitioner no. 1. The act of the petitioners is directly in terms of the agreement and no criminal offence is made out against them. 4. It has been further contended that the petitioner no. 1 being the owner of the vehicle took possession of the vehicle on 17.6.1993 after giving due information to the complainant/purchaser in terms of the agreement and no occurrence as alleged by the complainant has ever taken place. He also contended that it is clear from the evidence of PW 1 that the petitioners were not armed with any fire arms when the vehicle in question was allegedly taken away by them. 5. Learned APP supported the impugned order and submitted that petitioners came armed with fire arms and took away the vehicle forcibly. 6. Learned counsel for the O.P. no. 2 on the other hand submitted that petitioners took away the vehicle in question without giving due information to the complainant in terms of the agreement. 7. I find substance in the argument of the learned counsel that petitioner no. 1 being the registered owner of the vehicle was legally entitled to assert the possession of the vehicle when the terms of the agreement were not fulfilled by the complainant. Admittedly, the petitioner no. 1 was trustee of the Bank and the bus in question was the property of the financer, i.e., the Bank. The complainant is, therefore, guilty of breach of contract and the petitioners in the present case by taking possession of the vehicle have not committed any offence. No prima facie case to proceed against the accused is made out. 8. In the aforesaid facts and circumstances, this application is allowed and the impugned order dated 26.3.1998 is hereby quashed.