Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 98 (CAL)

Parameswar Agarwala v. State of West Bengal

2017-01-18

INDRAJIT CHATTERJEE

body2017
JUDGMENT : Indrajit Chatterjee, J. 1. This is an application under Section 482 of the Code of Criminal Procedure in which G. R. Case No.254 of 2008 now pending before the learned Judicial Magistrate, 2nd Court, Krishnagar, Nadia arising out of Kaliganj P.S. Case No. 35 of 2008 dated 21.2.2008 under Section 420/379/34 of the Indian Penal Code has been sought to be quashed by the accused no. 1. 2. The fact relevant for the purpose of adjudication of this litigation can be stated in brief below:- That one court complaint under Section 156(3) of the Code of Criminal Procedure was filed by this opposite party no. 2 on 05/02/2008 which was forwarded to the said police station for treating the same as F.I.R. and Kaliganj P.S. Case No. 35 of 2008 was started. It may also be noted that the alleged incident took place on 15/11/2007. From the complaint, it appears that this de facto complainant/opposite party no. 2 purchased one vehicle bearing Registration no. WB 51/1107 a TATA 609 Mini Truck by taking loan from the District Co-operative Bank, Bethudahari Branch, District – Nadia. It is also apparent from the complaint that there was some dispute as regards payment of instalments in between the complainant and the banker. On that scenario, this complainant started keeping the vehicle in the house of the accused no. 1, the petitioner before this court since November, 2005. 3. It was further claimed in the complaint that such arrangement was made, as there was no place in the house of this complainant to keep the vehicle. The complainant used to go to the house of the accused no. 1 to see the vehicle time and again from 2005 prior to 15/11/2007. Unfortunately for the complainant, he could not find the said vehicle in the house of the accused no. 1 on 15/11/2007 and came to learn from the witnesses that this accused no. 1 sold the said vehicle to the accused no. 3, Suleman Sk. in collusion with the accused no.2, Menai Dafadar. With this allegation, the said complaint was filed about which I have already stated. The Investigating Officer of the said Kaliganj police station case submitted the charge sheet no. 30 of 2009 dated 09/02/2009 against all the three accused persons for the offences punishable under Section 420/379 read with Section 34 of the Indian Penal Code. With this allegation, the said complaint was filed about which I have already stated. The Investigating Officer of the said Kaliganj police station case submitted the charge sheet no. 30 of 2009 dated 09/02/2009 against all the three accused persons for the offences punishable under Section 420/379 read with Section 34 of the Indian Penal Code. Ultimately, the learned trial court framed charge against all the three accused persons for the offences punishable under Section 420/370 read with Section 34 of the Indian Penal Code. 4. It is submitted by Mr. Roy, learned Advocate, appearing on behalf of the petitioner that the complaint ipso facto cannot be believed as it is impossible to infer that this accused no. 1 had any role regarding the alleged theft of the vehicle and that even if the entire F.I.R. is believed, then no element of cheating as envisaged in Section 415 of the Indian Penal Code will come out. He further submitted that the Investigating Officer did not seize the papers of the vehicle either from the complainant or from the banker. The Investigating Officer did not take step for seizure of the vehicle which is practically the property of the bank. 5. Mr. Roy has filed a photocopy of one Memo No.134-MV dated 11/02/2011 (one application under the R.T.I. Ac) wherefrom it is apparent that the vehicle was hypothecated to the District Co-operative Bank, Bethuadahari Branch. He submitted that no element of theft could have been proved by the investigating agency prima facie to allow the learned trial court to frame charge against the accused under Section 379 of the Indian Penal Code also. He further submitted that no written agreement was effected between the complainant and the accused no. 1 vide which the complainant was permitted to park his vehicle in the premises of the accused no. 1. 6. Mr. Majumder, learned Advocate, appearing on behalf of the opposite party no. 2 submitted that all these points were not stated before the learned trial court at the time of hearing on the point of charge and as such, this petitioner cannot re-open such matter before this court of revision. 7. Mr. 1. 6. Mr. Majumder, learned Advocate, appearing on behalf of the opposite party no. 2 submitted that all these points were not stated before the learned trial court at the time of hearing on the point of charge and as such, this petitioner cannot re-open such matter before this court of revision. 7. Mr. Basu, learned Advocate, appearing on behalf of the State along with the case docket fairly submitted that the Investigating Officer did not seize any document of the vehicle to prove prima facie that actually the vehicle belonged to this opposite party no.2. He further submitted that the vehicle is still hypothecated to the District Co-operative Bank, Bethuadahari Branch, Nadia as noted in the said Memo referred to above and the bank has certainly claim over the said vehicle. He submitted that this is a fit case in which this revisional court can exercise its power to direct the learned trial court to go for further investigation under Section 173(8) of the Code of Criminal Procedure. 8. Learned Advocate further submitted by taking me to the complaint that in the complaint, there is recital that the vehicle was put with the consent of this accused/petitioner. He also took me to the element of cheating vis-à-vis Section 415 of the Indian Penal Code to convince this court that actually the element of cheating is very much there in the complaint. 9. Regarding the offence under Section 379 of the Indian Penal Code, Mr. Basu submitted that whether the truck was stolen away or not is a question of fact to be decided by the learned trial court as from the complaint, it would be evident that the truck was very much in possession of the petitioner/accused. He further submitted that the complainant placed before the learned trial court the hypothecated agreement executed by him with the banker at the time of taking of loan but at the same time, Mr. Basu candidly submitted that further investigation is necessary for recovery of the truck. He further submitted that the accused no.3 was even taken on police remand but nothing could come out as he did not co-operate with the investigating agency. 10. I have taken note of the argument of the learned Advocates of the parties in details. The argument of Mr. He further submitted that the accused no.3 was even taken on police remand but nothing could come out as he did not co-operate with the investigating agency. 10. I have taken note of the argument of the learned Advocates of the parties in details. The argument of Mr. Roy that for parking of the vehicle any written permission was required is not convincing to this court. The conduct of the accused can be proved by the factual aspect; if he allowed the truck to be kept in his house, that shows that he consented regarding the parking of the vehicle. Regarding the element of cheating or even theft, this court is satisfied that unless the matter is further investigated, the clear picture will not come up before the learned trial court. 11. Vehicle No. WB 51/1107 is hypothecated to the bank stated above and as such, the bank has definitely claim over the said property. For unknown reason, the Investigating Officer could not or did not seize the said vehicle. The seizure of the said vehicle in such a case is a must as after seizure, which must be intimated to the bank, the question of custody of the vehicle will come. 12. I admit the version of Mr. Basu that the theft is to be proved only by oral evidence. This court is also satisfied on the basis of the complaint that the vehicle used to be parked inside the premises of the accused no.1/petitioner from 2005. 13. Regarding the question of cheating and the element of cheating as provided in Section 415 of the Indian Penal Code, this court is at one with Mr. Basu that the said matter is to be decided on fact before the learned trial court. 14. I can give one example – suppose A permits B to park his vehicle inside his premises and if in one fine morning, the said truck is found missing, then the complainant ‘A’ will have to prove by cogent evidence as to whether the accused ‘B’ had role regarding the deceiving of the said vehicle. I may add the complainant at the time of adducing evidence may prove whether the vehicle where it was parked was fenced or not or whether any other person had access over the property. 15. I may add the complainant at the time of adducing evidence may prove whether the vehicle where it was parked was fenced or not or whether any other person had access over the property. 15. In view of the observations made above, this court is not in a position to quash the proceeding of G.R. Case No. 254 of 2008 now pending before the learned Judicial Magistrate, 2nd Court, Krishnagar, Nadia but at the same time, this court is pleased to set aside the order passed by the learned trial court as regards the framing of charge in the changed scenario. It needs further investigation particularly as regards the seizure of the documents in respect of the vehicle and also the seizure of the vehicle itself. 16. I reiterate that the vehicle was purchased from bank money and bank money means public money. It is unfortunate to note that even in the complaint, there is specific recital that the said vehicle was purchased from the bank loan, but the Investigating Officer did not make any endeavour to examine the bank officials and in further investigation, the statement of the bank officials must be made part of the case diary. 17. The Officer in Charge of Kaliganj police station is directed to conduct further investigation under Section 173(8) of the Code of Criminal Procedure on the aspect as noted above. If required, permission is hereby accorded to the said Investigating Officer to examine the accused persons even and to record their statement. Such investigation must be completed within three months from the communication of this order to the said Officer in Charge. It is true that in this proceeding further investigation was not prayed for but this court is of the view that while exercising the inherent power under Section 482 of the Cr.P.C. This court may pass any order which may meet the ends of justice. 18. Efforts must be made by the said Investigating Officer to see that the vehicle is recovered and as soon as the vehicle is recovered and supplementary charge sheet is submitted before the learned trial court, learned trial court will consider in whose custody the vehicle will be given on hearing the parties including the District Co-operative Bank, Bethuadahari Branch, Nadia. 19. This criminal revisional application is, thus, disposed of. 20. 19. This criminal revisional application is, thus, disposed of. 20. Department is directed to communicate a copy of this order to the learned trial court. 21. Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking.