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2012 DIGILAW 1520 (JHR)

Abhay Kumar Sinha v. State of Jharkhand

2012-10-05

H.C.MISHRA

body2012
JUDGMENT 1. By Court: Heard learned counsel for the petitioners and the learned counsel for the State. No one appears for the complainant opposite party No.2, in spite of the fact that the notice was validly served upon him and he has appeared through Advocate. On the earlier date also, no one had appeared for the opposite party no.2, in spite of repeated calls and accordingly, the case was adjourned in order to give him a chance. But today also, no one appears for the complainant opposite party No.2 in spite of repeated calls. 2. The petitioners are aggrieved by the order dated 5.6.2009 passed by Sri Anuj Kumar, learned Judicial Magistrate, Ranchi, in Complaint Case No.282 of 2005, whereby, the application filed by the petitioners for discharge under Section 245 of the Cr.P.C., has been rejected by the Court below. 3. The record shows that a complaint petition was filed by the complainant Ganesh Mahli, alleging therein that he had purchased a trekker bearing registration No. JH-01B-5564 from Ashok Automobiles Pvt. Ltd., under the Higher Purchase Agreement which was financed by the petitioners’ company (Shivam Finance and Leasing Company). It is stated that some installments were paid by the complainant, but as the rest of installments could not be paid, the accused persons who were sent by the company, forcibly snatched away the vehicle from the driver and khalasi of the trekker in the month of March 2004. 4. The petitioners being the employees of the said Finance Company, have been made accused in this case. It appears that the statement of the complainant was recorded on solemn affirmation, wherein, the complainant supported the case and some witnesses were also examined at the enquiry stage, on the basis of which, the prima facie case was found against the petitioners and processes were issued against them. Subsequently, the petitioners filed their application for discharge, which has been rejected by the impugned order passed by the Court below. 5. Learned counsel for the petitioners has submitted that the impugned order passed by the Court below is absolutely illegal. He has drawn the attention of this Court towards some contradictions in the statements of the witnesses examined during the enquiry stage. 5. Learned counsel for the petitioners has submitted that the impugned order passed by the Court below is absolutely illegal. He has drawn the attention of this Court towards some contradictions in the statements of the witnesses examined during the enquiry stage. Learned counsel has also submitted that when the complainant was not able to ply the vehicle, he himself surrendered the vehicle, which was sold after due notice to the complainant and the matter was settled, in which, the complainant has also paid a sum of Rs.45,000/-through cheque and the balance dues of Rs. 83,626/-was adjusted as rebate. Learned counsel has brought on record the application dated 10.2.2004 submitted by the complainant, on which, the calculations were made about the dues and after giving a rebate of Rs.83,626/-, the matter was settled at Rs.45,000/-. The Photostat copy of the cheque dated 16.2.2004 for the amount of Rs.45,000/-which is shown to be issued by the complainant has also been brought on record. 6. Learned counsel for the petitioners further submitted that it is absolutely a matter arising out of Higher Purchase Agreement between the parties and this is being a case of civil nature, the criminal case against the petitioners is the misuse of the process of Court. 7. Learned counsel for the State, on the other hand, has submitted that on the basis of the allegations made against the petitioners in the complaint petition and the statement of the complainant on solemn affirmation as also of the witnesses examined during the enquiry stage, the offence is clearly made out against the petitioners. The documents as referred above, are in the defense of the petitioners, which cannot be looked into at this stage. Learned counsel for the State accordingly, submitted that there is no illegality and / or irregularity in the impugned order, worth interference in the revisional jurisdiction. 8. I have gone through the record and upon hearing the learned counsels for both sides, I find that there are such material contradictions in the complaint petition as also the statement of the complainant and the witnesses, so as to make the allegations absolutely doubtful. Though it is stated in the complaint that the vehicle was taken away from the driver and khalasi of the vehicle, but the names of the driver and khalasi are not disclosed in the complaint petition. Though it is stated in the complaint that the vehicle was taken away from the driver and khalasi of the vehicle, but the names of the driver and khalasi are not disclosed in the complaint petition. According to the complaint petition, the vehicle was taken away by the accused persons some times in the month of March 2004, whereas the statements of the complainant and the witnesses show that the vehicle was taken away on 22.5.2003. If the date of occurrence as given by the complainant in his S.A., as also by the witnesses, is believed to be 22.5.2003, in that case, the complaint petition was filed very belatedly in the year 2005, for which, there is no cogent explanation on record. This apart, I find force in the submission of the learned counsel for the petitioners that though there may be some exaggerations about the taking away the vehicle using force, but the case arises out of the business transaction between the parties and accordingly, the case is of civil nature. 9. In the facts and circumstances of the case, I am of the considered view that there being the business transaction between the parties arising out of the Higher Purchase Agreement, in the facts of this case, the continuation of the criminal case against the petitioners is the misuse of the process of Court. I am also of the considered view that the material contradictions in the complaint petition as also the statement of the complainant and the witnesses discussed above, make the allegations absolutely doubtful and unreliable. If the date of occurrence is taken to be 22.5.2003, in that case, the complaint petition was filed very belatedly in the year 2005, for which, there is no cogent explanation on record. I also find that even if the occurrence is taken to have been committed in the month of March 2004, as alleged in the complaint petition, still the complaint was filed very belatedly and cannot be relied upon in absence of any cogent explanation for delay. 10. In view of the aforementioned discussions, I find that the continuance of the criminal proceeding against the petitioners, in a case which has been filed very belatedly, and which prima facie arises out of purely a business transaction, is sheer misuse of the process of the Court. 10. In view of the aforementioned discussions, I find that the continuance of the criminal proceeding against the petitioners, in a case which has been filed very belatedly, and which prima facie arises out of purely a business transaction, is sheer misuse of the process of the Court. Accordingly, the impugned order dated 5.6.2009 passed by Sri Anuj Kumar, learned Judicial Magistrate, Ranchi, in Complaint Case No. 282 of 2005 is, hereby, set aside. Consequently, the petitioners stand discharged. 11. This application is accordingly, allowed. Let the Lower Court Records be sent back forthwith. Application allowed.