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2017 DIGILAW 1061 (GAU)

Malemia Imiong v. Tridip Borkataki

2017-08-07

RUMI KUMARI PHUKAN

body2017
JUDGMENT : 1. I have heard Mr. B.M. Choudhury, learned counsel for petitioner and Ms S.H. Bora, learned counsel for respondent. 2. This revision is filed for quashing CR case 6167c/2005 under section 365/342/384/387/323/34 of the IPC, which is pending in the file of the learned JMFC, Kamrup (M). 3. Petitioners herein lodged an FIR with the officer In-charge of Dimapur police station on 15.9.2005 with the allegation that the respondent who is a permanent resident of Zoo Narengi Road in Guwahati has taken Rs. 4.50 lakh from the petitioners with condition of giving two new vehicles on discounted rate, but neither he has returned the money nor has provided the vehicles and has cheated the petitioners. The same was registered as GD entry No. 227/2005 and the matter was sent for investigation. On the basis of the said FIR the police also arrested the respondent on 15.9.2005 from the Dimapur railway station and after the arrest on the approach of the respondent for amicable settlement an agreement was executed between the parties on 19.5.2005 with condition that he will repay the money within 15 days and till repayment he surrendered his vehicle AS-01/W-0180 Tata Indica, which is to be kept at police station. The said affair was reported to the Additional Deputy Commissioner (Judicial) by the O.C., West Police Station, Dimapur and he was allowed to retain the vehicle in safe condition 4. After execution of the said agreement the respondent left Dimapur on 20.9.2005 and has never returned the money as assured new vehicle and instead began to threat the petitioners for which the petitioners were compelled to lodge an ejahar again on 3.11.2005, corresponding to GD entry No. 71/2005 dated 4.11.2005. In the meantime the respondent after his return to his place lodged a complaint before the learned Magistrate, Guwahati on 22.9.2005, which is registered complaint case No. 6167(C)/2005, with reference to the occurrence dated 15.9.2005 and 19.9.2005 alleging that on 15.9.2005 he was suddenly arrested by the Dimapur police and taken to the West police station at Dimapur and by demanding him Rs. 5 lakh has tortured him for which ultimately he was compelled to sign a document written by the O.C. and on a blank paper on 19.9.2005 and they also kept his vehicle bearing No. AS-01/W-0180 forcefully. 5 lakh has tortured him for which ultimately he was compelled to sign a document written by the O.C. and on a blank paper on 19.9.2005 and they also kept his vehicle bearing No. AS-01/W-0180 forcefully. On the basis of which the said complaint case was registered and cognizance was taken by the court under section 365/342/384/387/323/34 of the IPC by order dated 22.9.2005. While doing so the learned court called for a report from the O.C., Dimapur West Police Station of Nagaland regarding the seized vehicle with direction to produce the said vehicle before the court. 5. It reflects from the order dated 21.11.2005 that as directed the police report was submitted by the O.C. to the effect that on the basis of the FIR dated 15.9.2005 filed by the informant Mamela Supongla, the accused Tridib Borkakati was arrested and vide agreement dated 19.9.2005 which was voluntary made by the parties and the vehicle in question was also kept as security till repayment of money. The O.C. in his report also mentioned that the said accused has falsely filed the complaint before the court at Guwahati. But despite the report from the O.C. concerned the learned court proceeded with the trial and subsequently issued NBAW against petitioners and challenging the said complaint case the present petition is preferred with prayer to quash and set aside the said CR case No. 6167c/2005 filed by the respondent and pending before the learned JMFC, Kamrup (M). 6. I have considered submissions of learned counsel for petitioner. None appeared for respondent though service is complete in the year 2010. 7. From the scrutiny of the documents annexed it is evident that petitioners have already filed FIR with the O.C. of Dimapur West Police Station of Nagaland on the allegation of cheating on the part of respondent and the vehicle in question was also seized pursuant to such allegation. Respondent was arrested in the said case and on execution of agreement between the parties he was released with an undertaking of repayment of the money taken by him and the vehicle was kept as security till repayment. The said aspect is also fortified by the report of the I.O. as indicated in the order of the learned court while passing order as mentioned above. The said aspect is also fortified by the report of the I.O. as indicated in the order of the learned court while passing order as mentioned above. It is evident that the respondent herein by suppressing all about the said affairs and pending of cases against him at Dimapur police station has made out a different story so as to save himself from the said criminal proceeding and has filed the case. Although he has categorically admitted the signing of agreement, it is assailed that it was signed under duress. Such suppression of facts before the court leads to another aspect of falsity of his case. More so even if he has anything to contest he has to reply to the said proceeding in proper manner by contesting the case that was at Dimapur. That apart as the incident happened at Dimapur there cannot be any cause of action in the court at Guwahati to register a case. It can be safely inferred that the present case was filed as a counter-blast to the said case only to resist the case of petitioners. 8. As held in State of Haryana v. Bhajan Lai, AIR 1992 SC 604 , (in para 7), such a complaint can be quashed and set aside, where it is found that such criminal proceeding is manifestly attended with mala fide with an ulterior motive for wreaking the vengeance on the accused with a view to spite them with a grudge. The present case is a unique example which comes within the purview of the guideline rendered in the said case. Accordingly this court has no hesitation to hold that the criminal proceeding pending before the learned Magistrate at Guwahati cannot be allowed to continue there being no authenticity in the allegation which was filed only to resist the other execution of law that is pending against him as mentioned above. 9. In view of the findings and discussions made above the proceeding of 6167c/2005 pending in the court of the learned JMFC, Kamrup (M) is quashed and set aside. The petition is disposed of. Return the LCR.