ABDULLAKUTTY HAJI Vs. ADDL JUDL 1ST CLASS MAGISTRATE

JUDGEMENT

(1.) THE third respondent was Itbe registered owner of a bus bearing registration number KLZ. 3972. THE bus was running on the route kozhi-kode-Badagara via Thanoeerpandal. THE permit was surrendered to the regional Transport Officer by the owner. Subsequently the bus is plying on the route Vettathur-Malappuram.

(2.) THE petitioner in this revision petition purchased the bus from the registered owner in October 1979. In the next month, November, 1979, a complaint was preferred by the second respondent before the Court of the Additional Judicial First Class Magistrate, the first respondent. THE complaint was: - As per an agreement of 24-8-1977, the first accused in the complaint, the registered owner of the bus, third respondent herein, had sold the same to respondents 4 and 5 (accused 2 and 3 ). THEy in their turn sold the vehicle to one M K. Narayanan under an agreement of 16-10-1978, who subsequently in terms of an agreement dated 17-1-1979 sold the bus to the complainant for a total consideration of Rs. 130,000/- out of this Rs. 45,000/-was to be paid by the second respondent (the complainant) to M. K Narayanan, rs. 53, 000/- was to be paid by her to respondents 4 and 5 and Rs. 32,000/-to be retained by her for payment of the instalments of hire purchase. For non-payment of the amount due to them, respondents 4 and 5 seized and took possession of the vehicle. For an amicable settlement of the disputes between them, second, fourth and fifth respondents entered into an agreement on 12-3-1979. By this agreement, the bus was to be sold for a good price and till such sale the sixth respondent who figures as the fourth accused in the complaint was to be in management of the bus for a monthly remuneration of Rs. 300/ -. Respondents 2, 4 and 5 were to share the profits from the plying of the bus in proportion to their investments over the bus. THE complaint was that in violation of the agreement and in breach of trust, respondents 3 to 6 sold the bus to the petitioner without payment of the share and profits due to the second respondent. THE petitioner, the purchaser of the bus is implicated in the following words: - THE learned Magistrate on these materials charged the petitioner along with respondents 3 to 6 as having committed an offence punishable under S. 406 read wit h S. 34 of the Indian Penal Code. Alleging that even on the basis of the averments in the complaint, in the sworn statement of the complainant and on her evidence (the allegations therein being not in any manner admitted by the petitioner) no criminal proceedings could be initiated against him, the petitioner has approached this court for quashing the complaint and the charge framed as far as he is concerned. THE petition was filed by him under S 482 of the Criminal Procedure Code. Subsequently the petition was converted into a revision petition under S. 397 of the said Code. 5. That the allegations concerned on the face of it in the complaint and also on the basis of the second respondent's sworn statement and her evidence in court below do not disclose a criminal liability on the petitioner. That can be safely stated. THE second respondent's grievance is that respondents 4 to 6 here (accused 2 to 4) did not consult her or get her consent in the matter of sale of the bus to the petitioner. THEy have failed to pay her her share of Rs. 46. 500/- the amount due to her and also her share of the profits due in respect of the period when the bus was under the management of the sixth respondent. Even if the petitioner was aware that respondents 4 to 6 had not consulted or got the consent of the second respondent, it is not possible to charge him as having committed an offence under S. 406 IPC even if a conspiracy is alleged bringing S. 34 IPC.

(3.) IN that case-Shukla's Case, the question that arose was whether an order directing framing of charge against the accused passed by a Special Judge appointed under the Special Courts Act, 1979 could be appealed against under S. 11 (1) of the Special Courts Act. Under that Section it is provided that 'notwithstanding anything in the Code, an appeal shall lie as of right from any judgment, sentence or order, not being interlocutory order, of a special court to the Supreme Court both on facts and on law'. A preliminary objection to the maintainability of the appeal was taken by the solicitor-General in the case, contending that S. II states with a non obstante clause which completely excludes the application of the Code of Criminal procedure and therefore the Supreme Court cases rendered on an interpretation of S. 397 (2) of the Code would have no application whatsoever in considering the scope and ambit of S. 11 of the Special Courts Act.