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2010 DIGILAW 691 (JHR)

Jyoti Agarwal v. State Of Jharkhand

2010-07-01

DABBIRU GANESHRAO PATNAIK

body2010
JUDGMENT : D.G.R. Patnaik, J. Heard the learned Counsel for the petitioners, learned Counsel for the Opposite Party No. 2 and learned Counsel for the State. 2. The petitioners, through the present application, filed u/s 482 of the Cr.P.C. have challenged the order of cognizance dated-13.07.2005, passed by the learned Judicial Magistrate, 1st Class, Hazaribagh in Complaint Case No. 188 of 2002 against the petitioners for the offences under Sections 347, 418, 420 and 421/34 of the I.P.C. 3. It appears that the case was registered on the basis of a complaint, filed on 19.02.2002 by the Complainant/Opposite Party No. 2, and upon conducting enquiry u/s 202 of the Code of Criminal Procedure, the court below had dismissed the Complaint petition filed by the Complainant by order dated-13.09.2002. 4. Against the order of dismissal, the Complainant/Opposite Party No. 2 preferred a Revision application before the Revisional Court. While allowing the Revision application, the Revisional court remanded the matter back to the Court of the Judicial Magistrate, with a direction to re-hear the parties and pass a fresh order. Consequently, the court below passed the impugned order of cognizance stating therein that upon perusal of the contents of the complaint petition and the statements of complainant and the other witnesses and furthermore, as directed by the appellate (Revisional) court, cognizance is taken for the aforementioned offences. 5. Assailing the impugned order of cognizance and the continuation of the criminal proceedings against the petitioners, Mr. Anil Kumar, learned Counsel for the petitioners would argue that the impugned order of cognizance is totally bad in law as well as on facts and has been apparently passed in a mechanical manner without application of judicial mind and in fact, only on being persuaded by the order of the Revisional court. Elaborating his arguments, learned Counsel would first read out the entire contents of the complaint petition and submit that from the list of the allegations in the complaint petition, it would transpire that the complainant was aggrieved by the fact that though initially the accused persons had got the complainant's vehicle transferred in their name by certain documents executed by the complainant and later, after receiving the consideration money from the complainant, the vehicle was though returned to the complainant but the accused persons had failed and refused to deliver the documents pertaining to the ownership of the vehicle. Learned Counsel submits that the aforesaid statements are totally false, incorrect and misleading and the complainant has indulged in deliberate suppression of material facts, which would otherwise have confirmed that no offence whatsoever is made out against the present petitioners. Learned Counsel adds further that on an information obtained from the office of the D.T.O. under the Right to Information Act, the petitioners have learnt that the ownership of the vehicle stood transferred in the name of the complainant in the records of the D.T.O. office way back in the year 2001 itself, when admittedly, the vehicle was returned to the complainant by the petitioners upon receipt of the consideration money. 6. Learned Counsel for the Opposite Party No. 2, on the other hand, would argue that in the first round when the court below had considered the materials before it, had dismissed the complaint petition on the ground that no case is made out for the alleged offences but such order of the court below was set aside by the Revisional court, which had found sufficient materials to hold that a case has been made out against the accused persons for the offences mentioned. Learned Counsel argues further, that the error which the court below had initially committed, could very well be rectified by it upon a reconsideration of the entire materials before it and the court below, has upon reconsideration found that the averments made in the complaint petition and the statement of the complainant and his witnesses, do make out prima facie ingredients for the offences for which cognizance was taken and as such, there is no illegality or impropriety in the impugned order of cognizance. 7. I have heard the learned Counsel for the parties and I have also gone through the materials available on record, including the contents of the complaint petition as filed by the Opposite party No. 2, the statements of the complainant and his witnesses recorded in course of enquiry, conducted by the court below and also the order of the Revisional court. 8. From perusal of the complaint petition, it appears that the complainant had admittedly obtained a sum of Rs. 42,000/- from the accused persons by way of a loan borrowed from them. 8. From perusal of the complaint petition, it appears that the complainant had admittedly obtained a sum of Rs. 42,000/- from the accused persons by way of a loan borrowed from them. The complainant had pledged his vehicle by way of security for the payment of the loan, which as per the terms agreed, was to be repaid by him in monthly installments. The complainant claims to have re-paid the entire amount not only the principal amount of loan but also the interest accrued thereon and after receiving the amounts, a total sum of Rs. 67,000/-, the accused persons returned the vehicle to the complainant by way of resale to him. It further appears, that admittedly, the delivery of the vehicle to the complainant was made by the accused persons in the month of October, 2001 and from the informations furnished by the D.T.O.'s office, the ownership of the vehicle was transferred in the records of the office of the D.T.O. in the name of the complainant in October, 2001 itself. Apparently, the ownership of the vehicle could be transferred in the records only on the basis of the documents pertaining to the vehicle. The grievance of the complainant that the accused persons had not delivered the documents of the vehicle thereby causing detriment and prejudice to him, appears to be misconceived and misleading. Even by the non-delivery of the documents, the complainant has not suffered any prejudice since he was acknowledged, by the records maintained in the office of the D.T.O., as being the owner of the vehicle. 9. It appears from the complaint petition that this material information of the fact that the vehicle stood transferred in his name, even in the records maintained by the office of the D.T.O., has been suppressed by the complainant both in his complaint petition as also in the statements recorded on solemn affirmation in course of enquiry conducted by the court below. Even on going through the entire averments contained in the complaint petition, it transpires that none of the ingredients for the offence for which cognizance was taken, is attracted. The institution of the criminal case by the complainant, appears to be with mala fide intentions. 10. Even on going through the entire averments contained in the complaint petition, it transpires that none of the ingredients for the offence for which cognizance was taken, is attracted. The institution of the criminal case by the complainant, appears to be with mala fide intentions. 10. The learned court below had rightly dismissed the prayer of the petitioners in the first round but as it appears, it was persuaded to pass the order of cognizance in respect of the alleged offences, by the impugned order of the Revisional court. 11. In the light of the facts and circumstances and the discussions made above, I find that the impugned order of cognizance has been passed in a mechanical manner without application of judicial mind by the Judicial Magistrate and therefore, the same cannot be sustained in law. The impugned order of cognizance, dated-13.07.2005, as also the entire criminal proceedings, pending against the petitioners before the Judicial Magistrate, 1st Class, Hazaribagh vide Complaint Case No. 188 of 2002 is hereby quashed. Petition allowed.