Sunil Kumar Kotriwal @ Sunil Kotriwal And Tirthraj Himmatsinghka @ Tirth Raj Himmat Singh v. State Of Jharkhand
2007-12-07
D.P.SINGH
body2007
DigiLaw.ai
JUDGMENT D.P. Singh, J. 1. Heard both the sides. 2. These present petitions have been preferred by the petitioner Tirthraj Himmatsinghka @ Tirth Raj Himmat Singh, the Director- cum Financer Ideal Credit Private Ltd. against the order of C.J.M., Deoghar dated 14.2.2007 passed in T.R. No. 22 of 2007 arising out of G.R. Case No. 908 or 1996 by which the prayer for discharge dated 11.8.2005 has been refused. Similarly situated co accused Sunil Kumar Kotriwal @ Sunil Kotriwal has preferred a separate revision petition being Cr. Revision No. 240 of 2007. Since both the matters arise out of same order, they being disposed of by this common order. 3. One Sunil Kumar has lodged an FIR before the Deoghar Police on the basis of which Deoghar (T ) P.S. Case No 384 of 1996 was instituted against these petitioners and others under sections 406, 421, 465, 467, 468, 471/34 of the Indian Penal Code. The police investigated the case and finally submitted charge sheet against these petitioners and others. The learned CJM, took cognizance in this case vide order dated 21.3 1998 against which the petitioner preferred Cr. Misce Petition No. 16425/1998. Others also preferred Cr. Misc Petition Nos. 26259/93, 26534/93 which was finally disposed of by order dated 7.12.1999 as it involved complicated questions of facts and considerations of documents as defence only at the stage of trial so that the claim over the truck may be decided correctly. When the matter was fixed for framing of charge, discharge petitions were filed separately by these two petitioners on 11.8.2005 and 6.1.1999 and others on different dares. The learned CJM, Deoghar considered all those petitions simultaneously and passed the impugned order wherein it held that there were materials on record sufficient for framing of charge for the offences under Section 406, 421, 465, 467, 468, 471/34 of the Indian Penal Code. 4. Learned Counsel Sri K.P. Deo appearing for he Sunil Kumar Kotriwal suggested that there is no materials on record to involve the petitioner in the alleged offence. It is also submitted that he is one of the employees of the other petitioner Sri Tirthraj Himmatsinghka and even in the fard beyan no allegation of overt act was made out against him. According to him the prosecution is bound to fail in absence of any positive evidence.
It is also submitted that he is one of the employees of the other petitioner Sri Tirthraj Himmatsinghka and even in the fard beyan no allegation of overt act was made out against him. According to him the prosecution is bound to fail in absence of any positive evidence. As such the impugned order may be set aside and petitioner be discharged from the liabilities of facing trial. 5. Learned Counsel Sri Rajiv Sinha along with Bhupal Krishna Prasad appearing for the petitioner Tirthraj Himmatsinghka submitted that the whole issue evolved is of civil nature, he being the financer and the informant being the purchaser in hire purchase scheme. In this context my attention was drawn towards decisions reported in 1979 SC 850, and wherein their Lordships have been pleased to hold that seizure of the truck or vehicle on default by the purchaser, on behalf of the financer does not constitute a criminal offence. Their Lordships further held that the financer has a right to resume possession on failure of making payment of installments. In the Financer has taken possession of the Bus purchased from accused number 2 while hire purchase agreement was continuing with accused number A1. Their Lordships in 2006(2)SCC 596 upheld the right of financer to take possession in terms of the agreement, the vehicle handed over on hire purchase scheme. 6. The learned Counsel for the informant and State do not dispute the right of the financer to resume the possession of the vehicle in question due to default in payment of installments. However they, have relied upon and submitted that criminal proceedings may not be quashed just because the dispute may be of civil nature. In this case Their Lordships have occasion to consider the terms of a lease between the parties, Their Lordships have further occasion to consider the nature of the dispute in 2001(2) SCC 17 and were pleased to hold Mat only because initially the dispute appears to be of civil nature, complaint cannot be quashed. 7.
In this case Their Lordships have occasion to consider the terms of a lease between the parties, Their Lordships have further occasion to consider the nature of the dispute in 2001(2) SCC 17 and were pleased to hold Mat only because initially the dispute appears to be of civil nature, complaint cannot be quashed. 7. The allegation against these petitioners are hat they have fraudulently induced the informant to sign over certain documents regarding Truck bearing No. BEK-9455 being run by him on hire purchase scheme from M/s. Ideal Credit Private Ltd. It is alleged that on 20 th October 1994 some papers were got signed by the petitioner Sri Tirthraj Himmatsinghka after which the said truck was not handed over to the informant and further sold to one of the accused Bukleshwar Sah with the help of the petitioner Sunil Kotriwal and others. According to the informant he was cheated and forged documents were prepared by the petitioners in furtherance of the common intention of all such accused persons. 8. The argument advanced on behalf of the petitioner Sunil Kotriwal that he had no role in alleged offence as well as petitioner Tirthraj Himmatsinghka that he as the financer has a right to resume possession of the truck No. BEK-9455 has been considered by the Honble Patna High Court in Cr. Misc Petition No 16425/98 and others decided against them on 7.12.1999 whereby the Honble Court refused the quash the cognizance taken against them for various offences. The petitioners have appeared and preferred the petition for discharge which has been considered by the lower court at length. 9. After going through the impugned order I find that the learned court below has considered the materials available on the record including the disputed signature of the informant on Form 35 to frame charges against the petitioners. 10. In view of the decision by the Honble Apex Court in , it is now settled law that merely because the dispute appears to be of civil nature criminal proceeding cannot be quashed. Further at this stage of framing of c large the satisfaction of the trial court- on materials on record would be decisive Reference may be made to 2007(5) SCC 402 (para 10 & 19). 11.
Further at this stage of framing of c large the satisfaction of the trial court- on materials on record would be decisive Reference may be made to 2007(5) SCC 402 (para 10 & 19). 11. In View of the facts and circumstances, discussed above, I find the impugned order has been passed by the learned trial court well within its jurisdiction. I further find no grounds to interfere with the same. Accordingly, Cr. Rev. No. 240/2007 and Cr. Rev No 252 of 2007 stand rejected.