LUIS DE PIEDADE LOBO Vs. MAHADEV VISHWANATH PARULEKAR

JUDGEMENT

(1.) This revision application is directed against the order dated 19th February, 1983 passed by the learned Judicial Magistrate, First Class, Bicholim, whereby he discharged respondent 1 under Section 245(2), Cr.P.C.

(2.) Petitioner herein has filed a criminal complaint against respondent 1 charging him of having committed an offence of theft punishable under Section 379, I.P.C. According to the complainant, he is the owner in possession of two Mercedez Benz trucks bearing Nos. GDT-7045 and GDT-7046. A few years back, there existed a partnership running under the name and style of M/s. L. & P. Associate between the complainant and the accused. The trucks aforementioned were part of the assets of the firm and, as such, stand registered in the name of the partnership. After some time, the accused/respondent withdrew himself from the said partnership firm and the same was dissolved. Since the time of the withdrawal of the accused from the partnership, the complainant has been running the business exclusively and the accused/respondent is in no way connected with it. The complainant, therefore, sent a notice to the accused requiring him to give his consent to the transfer of the said trucks to his name but the accused neither gave a reply nor his consent and, as such, the complainant was compelled to file a Civil Suit, being the Civil Suit No. 1/76 for declaration that the aforesaid trucks and some other trucks which are registered in the name of the partnership firm belong to him. On 21st April, 1976, at about 8.00 p.m., much after the filing of the aforesaid suit, respondent went in an Ambassador Car to Dignom along with six other persons and forcibly stopped the truck No. GDT-7046 by blocking the road and took the same vehicle away. Thereafter, he went along with the same persons to Sonshi and took away the truck No. GDT-7045 which was parked in the said locality. The learned Magistrate issued process against the respondent for offences punishable under Section 379, I.P.C., and thereafter on 30th September, 1978, an application was filed on behalf of the accused praying that he may be discharged since the complainant himself was not sure about his right over the trucks. He further contended in the said application that the trucks are the subject matter of the aforesaid suit and continued to be a partnership asset, which partnership still subsists and has not been dissolved. The learned Magistrate, however, by his Order dated 16th January, 1979, dismissed the application on the grounds that even, if the partnership had not been dissolved, it was not possible at that stage to hold that no theft had been committed, for a partner may commit theft of a partnership asset. The respondent, being aggrieved, preferred a revision application to the Judicial Commissioner's Court and the same was allowed by judgment dated 25th September, 1979. The learned Additional Judicial Commissioner, while allowing the revision application, remanded the case to the trial Court for being decided afresh in the light of the observations made by him. Pursuant to this Order of remand, the learned J.M. F.C., Bicholim disposed of the matter by the impugned Order dated 19th February, 1983.

(3.) Mr. M. S. Usgaoncar, learned counsel appearing for the petitioner, has at the outset, contended that the impugned order is not maintainable since the learned Magistrate did not comply with the provisions of Section 244, Cr.P.C., under which he was bound to hear the prosecution and take all such evidence as might have been produced in support of the complainant's case. The learned Magistrate indeed did not give any chance to the complainant to lead evidence in support of his case and straightway discharged the accused under Section 245(2), Cr.P.C., on points of law alone. It was, however, argued by Mr. S. V. Joshi, learned counsel appearing for respondent 1, that no irregularity has been committed by the learned Magistrate by exercising the powers vested in him under Section 245(2). Cr.P.C. In fact, the aforesaid sub-section (2) provides that nothing in the section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. The learned Magistrate, he further submitted, discussed in the impugned order the case of the complainant/petitioner herein and, having arrived at the finding that the charge made was groundless, correctly discharged the petitioner.