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Gauhati High Court · body

2015 DIGILAW 105 (GAU)

PALLAV BARUAH v. LATU CHUTIA

2015-02-03

B.K.SHARMA

body2015
ORDER (ORAL) 1. Heard Mr. T.J. Mahanta, learned senior counsel assisted by Mr. B. Bora, learned counsel for the appellant. None has appeared for the respondent. 2. This appeal is directed against the judgment of acquittal dated 07.11.2008 passed by the learned SDJM(M), Dhakuakhana, Lakhimpur in CR Case No.322/2008. The proceeding was instituted on the basis of the complaint dated 31.07.2008 lodged by the appellant with the jurisdictional Court. In the complaint petition, the allegation made was that the complainant i.e. the appellant and the accused persons are within the relations. He was a contractor by profession and was awarded with one work order dated 09.03.2007 pertaining to construction of a culvert. Claiming that the work ought to have been allotted to him, the accused Latu Chutia claimed 50% of the payment against the work. When the work was going on, there was insistence for payment of money and in the month of December, the work got completed. On 12.05.2008, the accused Latu Chutia showing his need, kept the motor cycle of the complainant and on 15.05.2008, when the complainant went to pay the installment of motor cycle and for registration holding Rs.15,000/- in his pocket, the accused refused to return the motor cycle and again demanded 50% of the amount of payment against the work order. Thereafter the accused persons rounded up the complainant and snatched away Rs.15,000/- and also 3. On the basis of the aforesaid complaint, CR case No.322/2008 was registered and as per the order passed during the said proceeding, search warrant was issued and the motor cycle was recovered and handed over to the complainant. The learned trial Court appreciating the evidence on record, while dismissing the complaint, ordered the complainant to pay an amount of Rs.1000/- to each one of the accused persons and in default, to undergo simple imprisonment for 01 (one) month. The seized motor cycle, which was handed over to him was also directed to be returned to the accused persons with further direction to produce the same before the Court within 30 days. 4. During the trial, the complainant examined 05(five) witnesses and the defence also examined 04(four) witnesses. The learned trial Court recording the following findings, passed the order for payment of Rs.1000/- to each one of the accused persons with the aforementioned condition. “13. 4. During the trial, the complainant examined 05(five) witnesses and the defence also examined 04(four) witnesses. The learned trial Court recording the following findings, passed the order for payment of Rs.1000/- to each one of the accused persons with the aforementioned condition. “13. Counting all facts and circumstances it can be said that if the allegations of snatching of Motor cycle and Rs.15,000/- were true, there would have been a case just after the occurrence. The learned advocate would have advised to file criminal case instead of issuing notice to return the Motor cycle and in the notice there would have been mention about assault, snatching of Rs.15,000/-. The complainant had deposed that his signature was obtained in a blank stamp paper, if that is so how learned advocate issued the notice bearing the contents of deed over stamp paper. The plea of defence that the complainant failed to repay loan amount to Latu Chutia and when complainant was found in his village, there was a mel and as a result of mel the complainant admitted the loan amount and on compulsion he mortgaged the motor cycle until payment is made and executed the ded. After three months he prepared with this present case adduced evidence, get the motor cycle recovered under search warrant. But at this present stage his case is found without grounds. He made the witnesses of deed as accused and dragged to court. On the basis of above discussion the accused persons are found not guilty u/s 147/323/387 of Indian Penal Code and hold that the case was groundless. 14. The case is hold as groundless and the notice is served on the complainant to show cause as to why he shall not be directed to pay compensation to accused persons as per section 250 of Cr.P.C. The complainant lodged petition No.2079 and stated that his case is true and based on true facts. Considering his reply and seriousness of charges brought against the accused persons it is hold that following order will meet the ends of justice. ORDER Accused (1) Latu Chutia (2) Lakhan Chutia (3) Jiten Chamua (4) Nibul Senapati (5) Dipti Chutia (6) Sankar Chutia (7) Phatik Phukan (8) Debeswar Saikia and (9) Parama Chutia are acquitted from the offence u/s 147/323/387 of Indian Penal Code and set at liberty. ORDER Accused (1) Latu Chutia (2) Lakhan Chutia (3) Jiten Chamua (4) Nibul Senapati (5) Dipti Chutia (6) Sankar Chutia (7) Phatik Phukan (8) Debeswar Saikia and (9) Parama Chutia are acquitted from the offence u/s 147/323/387 of Indian Penal Code and set at liberty. The complainant is directed to pay an amount of Rs.1000/- I.d to suffer S.I. for one month to each of the accused persons. The seized article be handed over from whom seized. The seized motor cycle be put in possession as it was before recovery by the search warrant. The complainant who took the vehicle on zimma is directed to produce the same before Court within 30 days.” 5. Mr. T.J. Mahanta, learned senior counsel representing the appellant submits that irrespective of the findings recorded towards acquitting the accused persons and dismissal of the complaint, the learned trial Court could not have ordered for payment of the aforesaid amount of Rs.1000/- to each one of the accused persons and also return of the motor cycle exercising power u/s 250 of Cr.P.C. 6. Section 250 Cr.P.C provides for payment of compensation for accusation without reasonable cause. According to Mr. Mahanta, learned senior counsel for the appellant, the complaint was lodged with reasonable cause when his motor cycle was not returned and rather, Rs.15,000/- was snatched away from him by the accused persons. Referring to the evidence on record, he submits that it cannot be said to be a case instituted on frivolous ground and/or there being no reasonable cause. He has placed reliance on three decisions reported in 2005 (2) GLT 404 ( Jiaur Rahman –vs- State of Assam); 1975 Cri.L.J.1696 (Rameshwar Dangi –vs- The State of Bihar) and AIR 1957 Calcutta 225 (Fakir Das Dutt –vs- Gaya Dhar Jana and another). All the decisions are in respect of scope and ambit of Section 250 Cr.P.C. It was held that strict construction of the said provision is necessary and the Court is to record reasons for invocation of the same and also to consider the cause shown by the complainant. 7. In the instant case, the direction for return of the motor cycle and also to pay the aforesaid amount of Rs.1000/- to each one of the accused was passed instantaneously, although the complainant had shown cause against the invocation of the provision of Section 250 Cr.P.C. 8. As submitted by Mr. 7. In the instant case, the direction for return of the motor cycle and also to pay the aforesaid amount of Rs.1000/- to each one of the accused was passed instantaneously, although the complainant had shown cause against the invocation of the provision of Section 250 Cr.P.C. 8. As submitted by Mr. T.J. Mahanta, learned senior counsel for the appellant, the motor cycle stands in the name of the complainant. In this connection, he has referred to the paragraph 9 of the complaint petition. The motor cycle was recovered by issuance of search warrant. After such recovery, irrespective of dismissal of the complaint, there could not have been the order to return the vehicle belonging to the complainant to the accused persons. The cause shown by the complainant vide petition No.2079 was rejected assigning the ground of seriousness of the charges leveled against the accused persons. 9. On perusal of the evidence on record, what is found is that there was a prima-facie case against the accused persons. It is one thing to say that the complainant failed to establish his case, but it is altogether different to say that the complaint was without any reasonable cause. 10.In view of the above, that part of the impugned judgment dated 07.11.2008 in CR Case No.322/2008 stands set aside and quashed by which the complainant/appellant has been saddled with the liability to pay Rs.1000/- to each one of the accused persons and also to return the motor cycle in question. However, the dismissal of the complaint is not interfered with. 11. The appeal partly succeeds. 12. Registry shall send down the LCR along with a copy of this judgment and order. 13. Let the case record be sent down to the learned Court below along with a copy of this judgment.