(1.) This Rule is for setting aside a charge dated 2-5-68 framed under Section 420 of the Indian Penal Code and for quashing the proceedings based thereupon, being case No. C 870 of 1966, pending in the Court of Shri J.C. Ghosh, Magistrate, 1st Class, Alipore.
(2.) The facts leading on to this Rule are short and simple. The accused-petitioner is the owner of a taxi-cab bearing number W.B.T. 2286 having the requisite insurance-certificate, the tax-token and the blue-book in his name. He also has the necessary R.T.A. permit in his favour. A registered partnership was entered into between the petitioner as also the complainant opposite party on 20-1-62 for the purpose of running the taxi and to carry on business in transport. There was difference between the parties over the terms and conditions and the complainant's case is that the petitioner took over the taxi on 20-5-66 from the driver of the opposite party and is since then in possession thereof. A diary was lodged at the Shampukur Police-Station on the same date. The vehicle was seized and both the parties filed their respective claims before the Police Magistrate at Alipore. The Police Magistrate after hearing both the sides and on a perusal of the relevant papers, made over the custody of the taxi to the present petitioner on 30-5-66. The case of the petitioner is that he had bona fide taken over the taxi from the complainant-opposite party because of the breach of the terms and conditions of the registered agreement and there was no dishonesty on his part. A petition of complaint was filed by the complainant-opposite party under Section 411 of the Indian Penal Code against the petitioner on 28-5-66 and the Police Magistrate at Alipore was pleased to direct the Tollygunge Police to enquire and report, The report ended in favour of the accused-petitioner and the complainant filed a naraji thereto and upon a judicial enquiry which followed, the accused-petitioner was ultimately summoned under Section 379. I. P. C. The case was thereafter transferred to the file of Shri J.C. Ghpsh, Magistrate, 1st Class, Alipore, for disposal. In course of the trial six witnesses were examined on behalf of the prosecution including the complainant-opposite party (P. W. 1), his driver (P. W. 6), the Manager of the New India Bailing Company (Private) Limited (P. W. 5), a salesman witnessing the partnership deed (P. W. 2) and two formal witnesses belonging to the police. The trying Magistrate ultimately by his order dated 2-5-68 framed a charge against the accused-petitioner under Section 420, I. P. C, It is this charge and the proceeding based thereupon that have been impugned and form the subject-matter of the present Rule.
(3.) Mr. Sanat Kumar Mukherjee, Advocate (with Mr. Jahar Lal Roy, Advocate) appearing on behalf of the accused-petitioner has made a two-fold submission. Mr. Mukherjee has contended in the first place that in view of the registered partnership between the parties and the nature of the allegations made relating to the terms and conditions thereof, the dispute is essentially of a civil nature and the present proceedings are unwarranted and untenable. The next contention of Mr. Mukherjce is that the petitioner is the registered owner of a motor-vehicle possessing the requisite token, blue-book and insurance-certificate as also the R. T. A., permit and there is no dishonest taking on his part or any mens rea at the inception to bring the case either within the ambit of the offence charged, viz., under Section 420, I. P. C. or under Section 379, I. P. C. or under any other penal provision of the Code.