NIRANJAN PRAKASH Vs. MANNI LAL DWIVEDI

JUDGEMENT

(1.) Sri Niranjan Prakash and Sri B.P. Singh have filed this application under Section 561-A, Cr. P. C. praying that the proceedings in a criminal case pending against them in the Court of the Bench Magistrate No. III, Kanpur, be quashed. The opposite party to the application is Sri Manni Lal Dwivedi on whose complaint the case against the applicants has been registered. The brief facts necessary for the appreciation of the controversy between the parties in this application may be stated as follows:

(2.) On 30th June 1959 a truck on Bedford Chassis was purchased in the name of Smt. Brij Dulari wife of Sri Manni Lal Dwivedi for a sum of Rs. 26,300/-.. It appears that Rs. 6300/- were paid in cash and for the balance of Rs. 20,000/- an Hire Purchase agreement was entered into between Smt. Brij Dulari and Messrs. Automobile Financing Corporation of Lucknow hereinafter described as corporation. It further appears that there was default in payment of instalment under that agreement and the Automobile Financing Corporation in exercise of its rights under the Agreement seized the truck. But later on it was released. On 17th August 1960 Smt. Brij Dulari transferred the truck in favour of her husband Sri Manni tal Dwivedi and on the same date Sri Manni Lal Dwivedi entered into a fresh agreement with the Automobile Financing Corporation of hire purchase under which the balance for the price amounting to Rs. 10,170 was made payable in 12 monthly instalments commencing from 21st September 1960. On 30th September 1960 on behalf of the Corporation Sri B.P. Singh, applicant No. 2 siezed the truck and removed It from the possession of Sri Manni Lal Dwivedi. On 25th October, 1960 that is almost a month later Sri Manni Lal Dwivedi lodged a First Information Report in the police station concerned to the effect that Sri B.P. Singh had dishonestly and illegally removed the truck in the absence of the driver and of the complainant and has taken it in his possession, thereby committing theft. This report was followed by a regular complaint filed in the Court if the Magistrate the next day by Sri Manni Lal Dwivedi wherein he made further allegations that he had taken the truck on Hire Purchase Agreement with the Automobile Financing Corporation of Lucknow of which Sri Niranjan Prakash was partner and Sri B.P. Singh, Inspector, and having paid all the money due became its owner, but Sri Niranjan Prakash and Sri B.P. Singh in order to harass the complainant and causing wrongful loss to him colluded together and Sri B.P. Singh removed the truck from the possession of the complainant in the absence of the driver and the complainant, and thereby they committed theft of the truck. It was also alleged by the complainant that on the 26th September 1960 he paid a sum of Rs. 9300/- to Sri Niranjan Prakash, the partner of the Automobile Financing Corporation who granted him a regular receipt in full payment of the amount due. The original receipt purporting to be signed by Sri Niranjan Prakash was filed by the complainant in court next day i.e. 28th October 1960. The Magistrates after the statement of the complainant was recorded under Section 200, Cr. P. C. issued bailable warrants against the applicants. An application was also filed by the complainant before the Magistrates for a search and seizure of the truck. The Magistrates ordered that the truck be seized. Against this order the applicants went up in revision before the learred Sessions Judge who made a reference to the High Court recommending that the seizure of the truck was illegal and the truck be released. This reference was accepted by this Court by its order dated the 24th January 1962 and the truck was released from seizure since then it has remained in possession of the Corporation.

(3.) It also appears that with regard to this truck there was dispute between the Corporation on one side and Sri Mannilal Dwivedi and his wife Smt. Brij Dulari on the other aide which was referred to arbitration in accordance with the terms of the agreement between the parties. It has been stated in the affidavit filed with the application that an award was made in favour of the Corporation and the Corporation has applied to the Court for pronouncement of judgment in accordance with this award. It has been stated in the counter affidavit on behalf of the opposite party that the award has been challenged as being without jurisdiction and defective and that the opposite party has also applied for its being set aside. This matter is still in dispute between the parties. But I am not concerned in this application with it. The case of the complainant in short therefore is that he had carried out the terms of the agreement and became the owner of the truck and the accused in collusion with each other in order to harass the complainant dishonestly got the truck removed from the possession of the complainant.