SARDAR TRILOK SINGH Vs. SATYA DEO TRIPATHI

JUDGEMENT

(1.) THIS is a petition under section 482 Cr. P. C. For quashing the proceedings in criminal case No. 1790 of 1976 brought on the basis of a complaint filed by the opppsite party in the court of the Chief Judicial Magistrate, Kanpur. The petitioners Trilok Singh and Brijpal Singh are partners of the firm M/s. Sardar Finance Corporalion and Jaswir Singh, petitioner No. 3, is the Manager of that firm. Satyadeo Tri pathi, complainant, togelher wilh its partner Bhagwati Prasad had purchased truck no UPG 6575, which was financed to the extent of Rs. 30.000/- by the firm M/s. Sardar Finance Corporation. The amount was repaid on monthly instalments. According to the petitioners, the agreement of hire purchase was executed on 29.3.1973. The complainant and Bhagwati Prasad were to hold the truck as bailee while the petitioner firm continued to be the real owner until the entire amount of Rs. 30.000/- was repaid under the hire purchase agreement. The petitioners' case further is that the hirers committed default in making payments of the monthly instalments and volun- tarily surrendered the truck to the firm on 24.7.1973. The truck was then sold to B. C. Misra for Rs. 45.000/-. The firm is said to have retained the sum of Rs. 30,000/- while the remaining sum of Rs, 15.000/- was said to have been paid to the complainant against receipts. These facts are not admitted by the opposite party Satyadeo Tiipathi, who has filed the complaint. The complaint case is that the truck was purchased lor Rs. 58,000/-. As sum of Rs. 14,000/- had been paid by Satya Deo Tripathi and another sum of Rs. 14,000/- was paid by his partner Bhagwati Prasad and the balance of Rs. 30,000/- had been advanced by the aforesaid firm. It was further alleged that an agreement leaving certain blank spaces was executed by the complainant on 29.3.1973. He was also made to sign many other papers bearing the revenue stams and other stamps. Some of them were jointly signed by him and Bhagwati Prasad and some were separately signed by them. The truck was not in satisfactory condition and required huge amount for the repairs. The complainant borrowed amounts from his wife and another lady and spent additional amount of Rs. 16,500/- on the repairs of the truck. His partner Bhagwati Prasad then separated and the complainant purchased the share of his partner also. The complainant paid two instalments for Rs. 3,566/- while the next instalment was to fall due on 31.7.1973. But during his absence, while he had gone to Delhi, petitioners and the other accused persons, armed with lethat weapons, kniyes and pistols arrived at the door of the complainant on 30.7.1973 at about 6 P.M. and started taking away the truck by force. The wife of the complainant protested. Some witnesses intervened. But the accused persons threatened the wife of the complainant with dire consequences. They warned the other witnesses that they would be shot dead if they obstructed and forcibly took away the truck. The accused persons were said to have commiteed ofsences under sections 295 and 120-B of the Indian Penal Code. It was further alleged that the wife of the complainant was so much terrorised that she could not even lodge a report with the police. She only reported the matter in the orfice of the Regional Transport Officer and prayed not to distrub the entry of the truck till the arriyal of her husband. When the complainant arrived from Delhi, he approached Sardar Trilok Singh for restoration of the truck. He kept the complainant in the dark and made false promies to return the truck to him. The complainant then waited till 20.8.1973. But when the truck was not returned he sent a report to S. P. City, Kanpur. On his order the case was registered at police station Swarup Nagar and was investigated. It was also alleged that the accused persons fabricated sale receipts on the blank paper on which signature of the complainant had been obtained by the accused no. 1 at the time of purchase of the aforesaid truck and that the accused persons committed several forgeries and prepared false documents for the pur-pose of Ulegal transfer made by Sardar Trilok Singh in favour of B. C. Misra. B. C. Misra also filed Civil Suit No. 231 of 1974 and obtained an injunction restraining the complainant from inter-fering in the peaceful possession of B. C. Misra of the truck. That suit was withdrawn when the investigating officer Sri R. C. Dwivedi had applied for seizure of the truck in connection with the criminal case. It was further alleged that under the orders of Senior Superintendent of Police, Kanpur, the investigation was transferred and was entrusted to Sri P. C. Lawaniyan and was finally transferred to Sri P. O. Pathak, C. I. Crimes, who was made to submit final report under the instructions of S.S.P. Kanpur, who came under the influence of the accused persons. The final report was accepted by the Judicial Magistrate, Kotwali. A revision filed was rejected by the Addl. District Judge, Kanpur. Against that order a petition was then filed under section 482 Cr.P.C. but the same was rejected by the High Court with the observations that it was open to the complainant to have filed a fresh complaint. The present complaint was filed after such observations made by the High Court. The learned Magistrate examined the complainant under section 200 Cr. P.C. and examined about nine witnesses produced by the complainant under section 202 Cr. P. C. The witnesses supported the complaint case. Two of the witnesses examined were S. I. Ram Chander Dwivedi and Sri Lawaniyan, who had made the original investiga-tion in this case. S. I. Dwivedi stated that the accused persons were bringing pressure on him for not seizing the truck during the course of investigation. He did not yield to the pressure. The accused persons then gave application against him and the investigation was taken from his hands and entrusted to Sri Lawaniyan. Sri Lawaniyan stated that a case under section 395 I.P.C. and various other sections including 420, 467 and 468 I.P.C. was fully made out against the accused persons and he wanted to submit charge-sheet against them under the various sections but the S. S. P. Sri Subhash Mukherjee got interested and wanted him to file final report in the case, which he was not prepared to do. The investigation was then taken over from him and handed over to S. I. Sri Pathak, who submitted a final report. He also stated that he had taken various papers in his possession from the accused persons. The learned Magistrate corisidered the evidence recorded under sections 200 and 202 Cr. P. C. He also thought that the earlier police investigation had nol been fair and it appeared that the final report was submitled under undue and high pressure of the S.S.P. Sri Mukherjee. He then passed a detailed order on 17.1.1977 summoning all the nine accused persons under section 395 I.P.C. It was at this stage that the present petition had been filed on 17.1.1977 for quashing the entire proceedings even before summons were issued. Sri S. N. Kacker learned, counsel for the petitioners argued that in the new Cr.P.C., the Magistrate is bound to commit the case The court of sessions under section 209 Cr.P.C. and it would amount to abuse of The process of the court if the accused persons were forced to face a sessions trial when the dispute is of civil nalure and when The circumstances are such that ii can be said that The accused persons acled bonafidely in exercise of their right under the hire-purchase agreement. Ii has been asserled on behalf of The petitioners that under the agreement each instalment was to be paid by the 15th of each month and only two instalment of Rs. 1783/- had been paid which fall due on 15th of May, 1973 and 15th of June; 1973, but the third instalments, which fall due on 15lh of July, 1973, had nol been paid. It is denied That the third instalment was to fall due on the 31st Jully, 1973. A copy of the hire purchase agreement along with The conlenlions referred in the hire-purchase agreement has been annexed to the rejoinder affidavit, The original was even shown to me in the court. It was argued That even if The complainl case was correcl That the truck was seized by the petitioners on 30th of July, 1973 and the case had not been surrendered by the complainant to the petitioners on 24.7.1973, the petitioners could have done so according to the terms of The agreement and their a bonafide belief That they had a right to seize. In support of this contenlion, reliance was placed on The case of Hiranjan Prakash and another v. Manni Lal Dwivedi (A.I.R. 1964 All. 433) decided by K. B. Asthana, J. (as he Then was) and the case of Pooran Mal and others v. Sadhu Ram (1965 A.LJ. 214) decided by Satish Chandra, J. On the other hand, learned counsel for the opposite party has placed reliance on an unreported decision (though marked A.F.R.) in criminal miscellaneous case no. 3310 of 1968, Ramesh Chand Khattar and another v. State of U. P. and another, decided on 3rd February, 1969, by B. R. Misra, J. In that case the decision in the case of Pooran Mal and others (supra) was distinguished and it was held that the petition for quashing the proceedings was premature as the stage was of preliminary enquiry and the magi strate had not even summoned the accused persons and he was only 1o satisfy him-self whether the complaint made out a prima facie case. Sri Tejpal, learned counsel for the opposite party has also placed reliance on the case of Smt. Nagawwa v. Verranna Shivalingappa Konialgi and others (1976 A.C.C. 224 = A.I,R. 1976 S.O. 1947.). I shall deal with this case at some length. A refercnce may be made to an earlier decision of the Hon'ble Supreme Court in the case of Nirmallit Singh Hoon v. State of West Bengal and others (A.I.R. 1972 S.C. 2630.). In that case it was held that "the words used, "sufficient ground for proceedings," in Sections 203 and 209 Cr. P. C. mean the satisfaction that a prima facie case has been made out against the person accused, by the evidense of the witnesses entitled to a reasonable degree of credit and do not mean sufficient ground for the purpose of conviction." It was further held that "the test is whether there was sufficient ground for proceeding and not whether there is sufficient ground for conviction and where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate state and issue of a process could not be refused. Unless, therefore, the Magistrate finds that the evidence led before him is self contradictory, or intrinsically untrustworthly, process can not be resumed if that evidence makes out a prima facie case." In that case the order dismissing the complaint passed by the Chief Presi-dency Magistrate, which was conflrmed by the High Court in revision had been set aside by the Hon. Supreme Court. In the case of Smt. Nagawwa (supra), the Hen. Supreme Court had set aside the order of the High Court passed under section 482 Cr. P. C. quashing the proceedings when the accused persons had only been summoned under section 204 (i) (b). In this case the same view was reiterated which was taken in the case of Nirmaljit Singh Hoon (supra), although there was no reference to that decision. In that case it was held that: ".........the scope of the inquiry under section 202 of the Code of Criminal Procedure is extremely limited- limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint- (1) on the materials placed by the complainant before the court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings under section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not." Their Lordships further went to the extent of observing : ".........The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court or even this court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whe ther or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused." They laid down the following guide lines when an order of the Magistrate issuing process against the accused can be quashed or set aside . "(1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused. (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused ; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible ; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanclion, or absence of a complaint by legally competent authority and the like. The case mentioned by us are purely illustrative and provide suffi cient guidelines to indicate contin- gencies where the High Court can quash proceedings." Applying these tests it cannot be said that the learned Magistrate had not exercised his discretion judicially in summoning the accused persons on the basis of the allegations made in the complaint or in the evidence adduced under section 202 Cr. P. C. especially when there was sufficient material to hold prima jade that the earlier investigation was tainted and final report had been submitted under the pressure of then Senior Superintendent of Police, Kanpur. Sri S. N. Kacker, learned counsel for the petitioners has argued that under section 202 sub-section (2) Cr. fP. C. (New), the magistrate was bound to cali upon the complainant to produce all his witnesses and examine them on oath and as such he should have at least asked the complainant to file the hire- purchase agreement and to examine the same. There is nothing to show that the hire-purchase agreement was executed in duplicate and a copy of the same was in possession of the complainant which he could have filed. Moreovcr, the allega-tions of the complainant are that he was made to sign the agreement which had blank spaces, which were obviously filed in subsequently. He had also alleged that he was made to sign many other stamped documents and forged documents were prepared. It was not for the Magistrate to hold a detailed en quiry at this stage and to give a definite finding whether these allegations are correct or not, such an enquiry can be embarked upon only when the accused persons appear and enter their de fence. At this stage they had no locus standi and were not entitled to be heard. THIS court, therefore, too, at this stage, cannot take into consideration the defence case which has been set up or the documents which had been filed in support of the defence case. It is true that under the new Cr. P. C., the learned Magistrate himself cannot make an enquiry after summoning the accused persons under section 204 Cr. P. C. and before committing them to the court of Sessions. But this circumstance alone will not justify this court to make such an enquiry in a petition under section 482 Cr. P. C. and give a finding which could have been given only after hearing the accused persons or after considering the evidence which could be filed in defence. Sri S. N. Kacker argued that in case this court refuses to interfere at this stage, this view will be inconsistent with the view taken by two learned Judges in the cases report ed in Niranjan Prakash and another v. Manna Lal Dwivedi (supra) and Pooran Mal and others v. Sadho Ram (supra). In the first place it may be stated that the law has now been finally settled by the latest decision of the Hon. Supreme Court in the case reported in Smt. Nagawwa v. Yeeranna Shivalingappa Konjalgi and others (AIR 1976 S.C. 1947 (supra)). The guidelines have been prescribed when this court can interfere under section 482 Cr. P. C. In the second place both the cases are distinguishable inasmuch as there was no controversy about the terms of hire purchase agreement in both the above cases. In the case of Poornamal v. Sadho Ram (supra) it was stated by the complainant himself in the cross-examination that three instalments were still due. They very fact that the complainant was cross-examined shows that the stage of the petition under section 561-A Cr. P. C. was not immediately after the accused were summoned. In the second case Niranjan Prakash and another v. Manna Lal Dwivedi (supra) the case of the complainant was that the entire balance of Rs. 9,300/- due to the financing company had been paid to Niranjan Prakash in a lump sum against receipt. THIS payment was denied by the accused persons. Morepver, according to the terms of the hire-purchase agreement, the payment could be held to be valid only if it was against the formal receipt issued by the company itself. No such formal receipt had been produced by the complainant. It was for this reason that K. B. Asthana, J. (Now C.J.) has observed towards the end in that case as follows:- "as in my opinion on the facts of the instant case on the complaint filed and on the evidence which has beec given so far in support of the complaint even if the same were taken at their face value, no.dis- honest intention can be attributed on the part of the applicants when they seized the truck." In that case it was, therefore, possible for the High Court to arrive at this conclusion on the basis of the com plaint and the evidence already adduced without considering the evidence pro duced in defence or the contentions of the accused persons. In the present case it is not possible to arrive at any such conclusion unless the evidence produced in defence is taken into consideration and it is held that the hire-purchase agreement filed on behalf of the accused persons is genuine and the allegations of the complainant that he was made to sign the agreement leaving blank spaces are wrong. It will further have to be held that the third instalment fell due on 15th July, 1973 and not on 31st July, 1973. It is significant that the case set up by the petitioners is not that they had forcibly seized the truck on 30th July, 1973, because of non-payment of the third instalment, but the case is that the truck was surrendered by the complainant on 24th July, 1973. I am making these observations for the purpose of distinguishing this case from the two cases reported in 1965 A.L.J. 214 (supra) and A.I.R. 1964 Allahabad 433 (supra). I should not be understood to mean that the criminal case is to be decided solely on the point whether the third instalment fell due on 15th July, 1973 and there was default in payment of the same For the pur pose of the present petition, I have not considered it necessary to consider various other aspects which may arise for consideration for the purpose of ultimately deciding whether the oflence committed falls under section 395 I.P.C. or not. Sri Tejpal, learned counsel for the opposite-party has argued that under section 2 clause 19 of the Motor Vehicles Act, the hirer, who holds the registration certificate, is described as the owner of the vehicle. According to him, this definition was not taken into consideration by the learned Judges in the cases reported in 1965 A.L.J. 214 (supra) and in A.I.R. 1964 Alld, 433 (supra). Sri Kacker has, however, argued that that definition is given for the purpose of Motor Vehicles Act only and not for the purpose of an offence under the Indian Penal Code. As observed above, I do not consider it necessary to express any opinion on this point and various other similar points which may arise for consideration in this case. Before parting with this case, I shall like to observe that it is most unfortunate that a socio economic legislation was enacted by the Parliament in 1972 by passing hire-purchase Act (Act XXVI of 1972). Notifications were published twice in the gazette enforcing that Act but they were subsequently cancelled. The notes in A. I. Manual valume XXII at page 710 show that until 1975 no notification had been issued enforcing that Act. l see no reason why the Act itself has not yet been enforced leaving it still open to the financier to seize the vehicle in pursuance of the terms of the hire-purchase agreement and to claim that they had done so in exercise of a bona fide right. If this Act is enforced it will put an end to all such assertions. In the result the petition is dismissed. The stay order dated 17-1-1977 is vacated.