RAMAPRASAD CHATTERJEE Vs. MD JAKIR KURESHI

JUDGEMENT

(1.) C.R. No.1388 of 1985 is directed against an 'order passed by the learned Sessions Judge, Midnapore on 24-8-1985 in Criminal Motion No. 120 of 1985 setting aside the order passed by the learned C.J.M., Midnapore on 2nd May, 1985 giving the custody of Bus No. WGB 2929 to the petitioner in C. R. No. 119 of 1985. The other Revisional Application is directed for quashing the said proceeding pending before the learned C. J. M., Midnapore wherein he has taken cognizance of an offence punishable under Ss. 406 and 420, I.P.C. and has directed to issue summons against the alleged accused therein. Accused persons are petitioners in this Revisional Application.

(2.) Brief fact leading to this applications are as follows : On 24th April, 1985 Ramaprasad Chatterjee filed a complaint alleging that he is the registered owner of the Bus in dispute and he intended to sell the same. At the intervention of accused No. 3 Wahid Kureshi the accused Zakir Kureshi and Sahid Kureshi agreed to purchase the same at a price of Rs. 78,000/- to which the complainant agreed. Accordingly an agreement was executed by the parties on 18-12-1984. The said agreement stipulated that Rs. 40,000/- would be paid in cash and the balance of Rs. 38,000/- would be paid to the complainant in six equal instalments of Rs. 6,333/- each. A sum of Rs. 40,000/- was paid to the complainant and the Bus along with relevant document was handed over to the accused persons. Agreement stipulated that if there is any one failure to pay the instalment Bus would be returned to the petitioner. The accused persons paid the first instalment by a cash of Rs. 1,633/- and a cheque for Rs. 4,700/- drawn on the Bank of India. Petitioner believing that the said cheque would be encashed granted a receipt for the entire amount of Rs. 6,333/- but the said cheque was dishonoured. The complainant informed the accused persons who wanted time for payment of the sale price but they did not pay any amount. The petitioner requested them to return the Bus but he was driven out. The accused persons were trying to sell the parts of the said Bus. On this complaint the learned C.J.M. issued process against the accused persons under Ss. 420 and 406, I.P.C. and also issued a search warrant for recovery of the said Bus. The Police recovered the said bus from the custody of the accused persons. The complainant filed a petition before the learned Magistrate for returning the bus to him. Clauses 9 and 10 of the deed of agreement provided that if the purchasers failed to pay even one instalment the seller would take back the bus with the help of law and the purchaser will be bound to return back the said Bus to the owner. The learned C. J. M. directed the return of the said bus to the complainant on his executing a bond of Rs. 80,000/- without prejudice, to ' the rights of the parties. Petitioner on execution of the said bond took custody of the said bus. Against this order of the learned Magistrate the O.Ps. in Criminal Revision No. 1388/85 moved a revision application before the learned Sessions Judge. By the impugned order the learned Sessions Judge set aside the order of the learned C. J. M. and sent the case back for further consideration. In the mean-time the police took possession of the said bus from the petitioner. In Criminal Revision No.1388/85 the petitioner has challenged this order of the learned Sessions Judge and in the other revisional application accused Nos. 1 and 2 have moved this Court for quashing the said proceeding pending before them.

(3.) Mr. C.R. Das appearing for the petitioner has contended that since the sale of the bus is not complete and all the documents relating to the bus stand in his favour the learned Magistrate is justified in putting the bus in his custody without prejudice to the rights and contentions of the parties. On the other hand, Mr. Banerjee appearing for the O. Ps. has submitted that the learned Sessions Judge was right in holding that an interest in the said bus has passed in favour of the accused O.Ps. The dispute between the parties being a dispute of Civil nature, the learned Magistrate was wrong in returning the said bus to the petitioner. He has also submitted that issue of search warrant in this case was absolutely illegal and therefore the learned Magistrate should not have returned the vehicle to the complainant. The learned Sessions Judge has token proper step in directing the learned Magistrate to dispose of the petition in accordance with law and in the light of the observations made by him in the aforesaid judgment. Mr. Das has relied on a decision reported in 1968 Cri LJ 1538 : (AIR 1968 Cal 564) on which the learned 'Magistrate placed his reliance. The learned Sessions Judge has distinguished this decision in facts of this case. Mr. Das has also relied on various decisions of the Supreme Court holding that in cases of custody of a motor vehicle the owner's claim should be upheld as a motor vehicle is not only an immovable property but a property which is governed by the Motor Vehicles Act. Whatever may be rights and contentions of the parties the vehicle should be placed in the custody of the person in whose favour it has been registered and the dispute between the parties should be settled in proper forum. Mr. Banerjee on the other hand has contended that a criminal proceeding should not be continued to enforce a civil right. On this point he has relied on 40 Cri LJ 216 : (AIR 1939 Cal 45). Mr. Banerjee further contended that since the search warrant is a nullity in the eye of the law the vehicle ought to have been returned to those persons from whose custody it was recovered. Since the learned Magistrate has taken cognizance of the offence and in his opinion the production of the bus in question was necessary for the purposes of the enquiry or trial there is nothing in law to suggest that issue of search warrant under S. 93 was by itself illegal. Mr. Banerjee contended that since there was no scope of taking cognizance of the offence as no offence was disclosed in the petition of complaint issue of search warrant was not justified. That is why he has filed the Revisional Application No. 1521/85 for quashing. Mr. Banerjee led me through the petition of complaint and submitted that it does not disclose any offence punishable either under S.406 or under S.420 of the I.P.C. On perusal of the petition of complaint it appears that the complainant has alleged that in terms of agreement of sale of the bus, the bus was made over to the accused O.Ps. He has also admitted that he has received a sum of Rs. 40,000/- in terms of the said agreement. Since the accused persons committed breach in payment of the' instalment as agreed he had a right to obtain possession of the bus in terms of the said agreement. According to him the bus was accordingly entrusted to the accused persons though in the said petition of complaint he has not specifically stated that it was entrusted to them but has asserted that since the accused persons had business and their own residential house he gave the custody of the vehicle to them with a belief that he would not be deceived. Criminal breach of trust has been defined in S.405, I.P.C. The requirement of the section is that the property has to be entrusted in any manner or with any dominion over property. The accused must dishonestly misappropriate or convert to his own use that property or dishonestly use or dispose of that property in violation of any direction of law describing the mode in which such trust is to be discharged or of any legal contract express or implied which he has made touching the discharge of such trust or wilfully suffers any other person so to do commits criminal breach of trust. In the instant case it does not appear that in the petition complaint any allegation of dishonest misappropriation or conversion to his own use has been made. No dishonest user or disposal of that property in violation of any law or contract has been alleged. On the face of it I agree with the submission of Mr. Banerjee that no case of criminal breach of trust has been made out but that is not the sole allegation made in the petition of complaint. In the petition of complaint it has been alleged that the accused persons paid the petitioner a sum of Rs. 4,700/- on Bank of India, Midnapore Branch. The complainant on receiving the said cheque and some cash granted them a receipt for the entire amount of Rs. 6,333/- but the said cheque was dishonoured. The accused persons knowing well that the amount was not in the bank in their credit they have issued a cheque to deceive the complainant. This part of the allegation, in my view, prima facie constituted 'an offence punishable under S.420 of the I.P.C. Mr. Banerjee has relied on a decision reported in 1977 Cri LJ 531 (Goa) to say that issue of a cheque which was subsequently dishonoured does not by itself constitute an offence of cheating but in the instant case the complainant has alleged that the accused persons knew that the cheque will be dishonoured yet they have issued the cheque in favour of the complainant and has induced him to grant a receipt in respect of an amount of Rs. 6,333/- though the entire amount was not in fact paid to him. Mr. Banerjee has shown me the receipt granted by the complainant. The receipt simply states that the complainant received a sum of Rs. 6, 333/It does not say whether it was paid by cash or by a cheque. The cheque in question was also produced before me. It is issued on a date prior to the date on which the receipt was granted by the complainant but Mr. Banerjee contended that the receipt will show that the entire amount was paid therefore there was no case of cheating. Considering all these facts I am of the view that a prima facie case under S.420, I.P.C. has been made out by the complainant and the learned Magistrate is justified in issuing process under this section. Since there is no scope for quashing the entire proceedings Criminal Revision 1512/85 fails and the argument advanced by Mr. Banerjee that the issue of search warrant was a nullity also fails. It appears on perusal of the agreement executed by both the parties that the dispute between the parties is a dispute of civil nature and as contended by Mr. Banerjee a criminal forum should not be used for obtaining a civil relief. By directing delivery of the vehicle to the complainant the learned Magistrate has unwittingly committed the mistake of criminal Court being used for a civil relief. It has been submitted that a suit is pending between the parties over this vehicle. Since the parties have already gone to civil Court best course would be in the facts of the instant case to abide by the decision of the Civil Court with regard to the possession of the said vehicle. As it appears the vehicle was recovered from the custody of Ramaprasad Chatterjee by the police under the direction of the learned Ma Magistrate. In the instant case the ends of justice will be met if the vehicle in question remains in police custody until an appropriate order is passed by the Civil Court. I dispose of the two criminal revision petitions in terms as observed above. Order accordingly.