In the matte of applications under section 482 of the Code of Criminal Procedure. ------ CRIMINAL MISCELLANEOUS No.35710 OF 2000 ----- 1. KAPIL SHUKLA SON OF LATE RAM JANAM SHUKLA 2. NARVDESHWAR SHUKLA SON OF SHRI KAPIL SHUKLA 3.LALMUNI DEVI WIFE OF LATE NARAD BHAGWAN SHUKLA 4.SANJAY SHUKLA SON OF LATE NARAD BHAGWAN SHUKLA ALL RESIDENT OF VILLAGE SHUKLAPURA, P.O.DARIYAPUR,P.S.ARRAH MUFASSIL,DISTRICT BHOJPUR ---- PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. LALIT KUMAR PANDEY SON OF SHRI K.K.PANDEY RESIDENT OF VILLAGE DALAN CHAPRA,P.S.SHAHPUR DISTRICT BHOJPUR, AT PRESENT RESIDING AT C/O SRI R.B.PANDEY AT PHULWARISHARIF, P.S.PHULWARISHARIF,DISTRICT PATNA 3.FRENCH MOTOR CAR CO.LTD., 234/3A, ACHARYA JAGDISH CHANDRA BOSE ROAD, CALCUTTA- 700020 THROUGH MANAGING DIRECTOR ---OPPOSITE PARTIES WITH CRIMINAL MISCELLANEOUS No.198 OF 2001 -------- FRENCH MOTOR CAR COMPANY LIMITED, A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 THROUGH ITS CONSTITUTED ATTORNEY, TUSHAR KUMAR SEAL, HAVING ITS OFFICE AT 234/3A, ACHARYA JAGDISH CHANDRA BOSE ROAD, CALCUTTA – 700020 ----- PETITIONER VERSUS 1. THE STATE OF BIHAR 2. LALIT KUMAR PANDEY SON OF K.K.PANDEY, RESIDENT AT C/O SHRI R.B.PANDEY, PHULWARISHARIF,P.S.PHULWARI,DISTRICT PATNA ----- OPPOSITE PARTIES -------- For the petitioners : in Cr.Misc. No.35710/2000: Mr.Jai Shankar Pathak, Adv. For Opp. Party No.3 : in Cr.Misc. No.35710/2000: Mr.Abhijet Kumar Lal For the State : in Cr.Misc. No.35710/2000: Mr.Uday Chand Prasad, A.P.P. For the petitioner : in Cr.Misc. No.198/2001: Mr.Abhijeet Kumar Lal, Adv. For the State : in Cr.Misc. No.198/2001: Mrs. Veena Rani Prasad,A.P.P. 2 ------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------ Rakesh Kumar,J. In both the above cases, order of cognizance dated 16.9.2000 passed by Sri B.K.Dixit, Judicial Magistrate, Ist Class, Patna, in Complaint Case No.1426-C of 2000 is under challenge. Accordingly, both the petitions were heard together and are being disposed of by this common judgment. 2. In Cr.Misc. No.198 of 2001 the petitioner is a company registered under the Companies Act in the name and style of French Motor Car Company Limited which has been represented through its constituted attorney, Tushar Kumar Seal. In Cr. Misc. No.35710 of 2000 the petitioners are close relatives of the complainant, who has been arrayed as opposite party no.2. In both the cases by order dated 16.9.2000 the learned Magistrate took cognizance of the offences under sections 420, 120B and 467 of the Indian Penal Code and directed for issuance of summons against the petitioners. 3. Aggrieved with the order of cognizance dated 16.9.2000 the petitioners vide Cr. Misc. No.35710 of 2000 approached this court by invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure. On 4.4.2001 a Bench of this court directed for adding Managing Director of the Company (French Motor Case Company Limited) as party in this case and while directing for issuance of notice to the opposite parties which includes the complainant, it was observed that in the meantime, further proceedings in the court 3 below in Complaint Case No.1426C of 2000 shall remain stayed. Similarly, Cr.Misc. No.198 of 2001 was filed by French Motor Car Company Limited which was also heard along with Cr. Misc. No.35710 2000 on 8.11.2001 and it was observed that since the petitioners in Cr.Misc. No.35710 of 2000 were close relatives of the complainant, they may take steps for compromising their differences. However, since there were additional points in Cr.Misc. No. 198 of 2001, the court deferred the matter and directed that until further orders, further proceedings in the court below shall remain stayed. Both the cases were finally admitted for hearing on 12.4.2002 and direction was issued that during the pendency of this application, further proceedings in Complaint Case No.1426C of 2000 pending in the court of Judicial Magistrate, Ist Class, Patna, shall remain stayed and order of stay is still continuing. At the time of hearing of the present petitions none has appeared on behalf of the complainant in both the cases. 4. On perusal of the complaint petition it appears that the main allegation was leveled against one Narad Bhagwan Shukla, who died even before filing of the present complaint petition. 5. I have heard Mr. Jay Shankar Pathak, who appeared on behalf of the petitioners in Cr. Misc. No.35710 of 2000 and Mr.Abhijeet Kumar Lal, who appeared on behalf of the petitioner in Cr. Misc. No.198 of 2001. I have also heard Mr. Uday Chand Prasad and Mrs. Veena Rani Prasad, learned Additional Public Prosecutors in Cr. Misc. No.35710 of 2000 and Cr.Misc. No.198 of 2001 respectively. 4 6. Short fact of the case is that on 28.8.2000 opposite party no.2 filed a complaint vide Complaint Case No.1426C of 2000 in the court of Chief Judicial Magistrate, Patna disclosing therein that he was persuaded by his uncle, husband of mother’s sister (Mausa), Narad Bhagwan Shukla for starting business of transportation and for that very purpose he had persuaded the complainant to purchase a truck. In the complaint petition it was alleged that the complainant had discussed with the accused persons even at Phulwari Sharif and some payment was made at Phulwari Sharif. In the complaint, the complainant has accepted that he had gone to Calcutta for the purpose of purchasing a truck and, thereafter, he had given cheque to Narad Bhagwan Shukla for purchasing a truck. The truck was to be purchased from a dealer, namely, French Motor Car Co. Ltd., which is petitioner in Cr.Misc. No.198 of 2001. It was alleged that despite payments were made through cheque as well as cash by him, the truck was got registered in the name of Narad Bhagwan Shukla and delivery of truck was also made to Narad Bhagwan Shukla some time in the month of October/November1996. The complainant has further asserted that in the month of April, 1997 he firstly came to know that instead of getting the truck registered in his name, the same was got registered in the name of Narad Bhagwan Shukla. In the complaint petition it has been disclosed that other petitioners of Cr.Misc. No.35710 of 2000 had also participated in the crime. The complainant has further asserted that after coming to know that the vehicle was delivered and it was registered in the name of 5 Narad Bhagwan Shukla, he tried to get the registration of vehicle transferred in his name but assurance was given by Narad Bhagwan Shukla that after clearance of the loan amount, the same will be done and due to that reason he did not take any action. In the meanwhile, Narad Bhagwan Shukla died. The complainant in the complaint petition has also levelled allegation against the petitioner of Cr. Misc. No.198 of 2001 that he also conspired with the accused persons in which the complainant was cheated. When the complainant failed to persuade the petitioners of Cr. Misc. No.35710 of 2000 for transferring the vehicle, he was satisfied that he was cheated by the accused persons. The complainant had issued cheque in the name of French Motor Car Co. Ltd (accused) and, as such, on the aforesaid allegations, the present complaint petition was filed. After filing of the complaint petition, the complainant was examined on solemn affirmation and two enquiry witnesses were examined, who supported the complaint case. Thereafter, by order dated 16.9.2000 the learned Magistrate took cognizance of the offences under sections 420, 120B and 467 of the Indian Penal Code and directed for issuance of summons. 7. Mr. Jai Shankar pathak, learned counsel appearing on behalf of the petitioners, while pressing Cr.Misc.No.35710 of 2000, has argued that prima facie the contents of the complaint petition shows that it was a civil dispute between the parties. It was further submitted that whatever allegation has been levelled in the complaint petition was levelled mainly against Narad Bhagwan Shukla, who has already died 6 even prior to filing of the complaint petition. It was submitted that since petitioner no.3 was wife and petitioner no.4 was son of late Narad Bhagwan shukla and petitioner no.1 was father and petitioner no.2 was brother of Narad Bhagwan Shukla, all the family members have been made accused by the complainant. While referring to complaint petition, Shri Pathak, learned counsel for the petitioners, submits that petitioner no.3 being wife of Narad Bhagwan Shukla, is Mausi (mother’s sister) of the complainant. It was further submitted that Narad Bhagwan Shukla had actually purchased the truck in question by way of getting loan through the Escorts Finance Limited, Calcutta and it appears that the informant might had contributed something to Narad Bhagwan Shukla and had started to claim his right over the vehicle in question after the death of Narad Bhagwan Shukla. It was further contended that even in the complaint petition itself in paragraph-11 the complainant admits that finally he came to know about the occurrence in the month of April, 1997 and after inordinate delay the complaint petition was filed. Learned counsel has further submitted that it was a civil dispute and for that the complainant may not be allowed to use a criminal proceeding. Accordingly, he has prayed for quashing of the entire prosecution. 8. Mr.Abhiteet Kumar Lal, learned counsel appearing on behalf of the petitioner in Cr. Misc. No.198 of 2001 has argued that in any event the petitioner cannot be held responsible for even civil liability. It was submitted that the petitioner-company was a dealer and dealt mostly with truck and in course of business since Sri Narad Bhagwan Shukla had 7 approached the company for purchasing truck, the truck in question was delivered to Narad Bhagwan Shukla. Learned counsel for the petitioner, while referring a number of documents, which have been brought on record along with the present petition by way of annexures, submitted that the person who had issued the cheque was not having any account within the jurisdiction of Calcutta and accordingly same was returned, however, subsequently the cheque was presented after opening of bank account at Calcutta and, thereafter, it was accepted. Learned counsel for the petitioner has referred to annexure-2/1 to the petition, which is an application for purchase of the vehicle and submitted that application for purchase was in the name of Narad Bhagwan Shukla and thereafter Narad Bhagwan Shukla got a loan sanctioned from a finance company, namely, Escorts Finance Company Ltd. Learned counsel for the petitioner has referred to annexure-3 to the petition which is a communication sent on behalf of Escorts Finance Limited to the petitioner-company which is dated 15.11.1996. This indicates that the loan was sanctioned to the purchaser and on that strength the vehicle, in question, was delivered to Narad Bhagwan Shukla, vide annexures-3 and 3/1 to the petition, which is a gate pass and delivery receipt respectively. Learned counsel for the petitioner has also referred to annexure-2 to the petition and it was argued that the petitioner, before proceeding with the sale of the vehicle in question, had got satisfied that the purchaser i.e. Narad Bhagwan Shukla was a resident of Calcutta. Only after being satisfied on the basis of ration card of Narad Bhagwan Shukla the 8 petitioner had proceeded for delivering the vehicle to Narad Bhagwan Shukla. It was submitted that, for the time being if it is assumed that the complainant had invested money, by no stretch of imagination it can be said that the petitioner-company was involved in such a deal with the complainant. There is possibility that the complainant might had been cheated by his own relatives but in any event the petitioner-company cannot be held responsible for any action or inaction of the relative of the complainant. Accordingly, he submits that the prosecution of the petitioner on such complaint is unwarranted and liable to be set aside. 9. I have already indicated that in this case despite opposite party no.2 had entered his appearance through counsel none has appeared on his behalf at the time of hearing of the present case. However, I have heard learned Additional Public Prosecutors appearing on behalf of the State in both the cases, as indicated above. 10. Besides hearing learned counsel for the petitioners and the State I have also perused the materials available on the record and I have also perused annexures of Cr. Misc. No.198 of 2001 which make it clear that it was Narad Bhagwan Shukla, who had approached the French Motor Car Co. Ltd. for purchasing the vehicle and the same was delivered to Narad Bhagwan shukla only after a lone of Rs.4,50,000/- was sanctioned by Escorts Finance Limited as per annexure-3 to the petition in his favour. So far as petitioners in Cr.Misc. No.35710 of 2000 are concerned, it is not in dispute that they were close 9 relatives of the complainant. From the contents of the complaint petition one can infer that the dispute in between the parties was in relation to the truck in question. Whether the complainant was having any share in the vehicle in question or not or whether the complainant had given loan to Narad Bhagwan Shukla or not, cannot be decided by a court in criminal proceeding. It is a dispute of civil nature. Of course, with a view to attract the provisions of sections 420, 120B and 467 of the Indian Penal Code certain statements were made in the complaint petition but in view of materials which have been brought on record in both the cases, this court is satisfied that the prosecution on such allegation against the petitioners of both the cases is unwarranted. From the complaint petition it appears that whatever offence was committed in the case, was committed by Narad Bhagwan Shukla, who had already died even prior to filing of the present complaint petition which has been admitted by the complainant in the complaint petition itself and it appears that with a view to take possession of the vehicle in question which was delivered in the name of Narad Bhagwan Shukla the present proceeding was initiated. It can be said that the present petition was not filed with fair and honest intention. 11. Accordingly, in view of the facts and circumstances of the present case, as indicated above, this court is satisfied that it is a fit case for exercising power under section 482 of the Code of Criminal Procedure in favour of the petitioners and, as such, the impugned order of cognizance dated 16.9.2000 passed by Sri B.K.Dixit, Judicial Magistrate, Ist Class, Patna in 10 Patna High Court The 16th July,2010 Md.S.NAFR Complaint Case No.1426-C of 2000 is hereby set aside and both the petitions are allowed. (Rakesh Kumar,J.)