MANORANJAN TRIPATHY Vs. GANESH PRASAD SINGH

JUDGEMENT

(1.) The petitioner who has been shown as one of the accused persons in a complaint petition filed by the Opposite Party No. 1 in the court of the Sub-Divisional Judicial Magistrate, Sadar, Cuttack has preferred this Misc. Case challenging the order dated 16-1-1986 of the S.D.J.M. in I.C.C. case No. 12 of 1986 taking cognizance against him under Sections 420 and 406 of the I.P.C.

(2.) Learned counsel appearing for the petitioner challenges the order on the ground that on a plain reading of the complaint petition and for the sake of argument accepting the entire allegation to be true, no prima facie case against him has been made out either under Section 420 or under Section 406 of the I.P.C. and the learned S.D.J.M. without proper application of mind and without following the test that is required of him while taking cognizance has taken such cognizance contrary to law resulting unnecessary harassment to him and prays for quashing the order. In the complaint petition which is annexed as Annexure-1 to this Misc. Case, the complainant had alleged that he runs a business of letting out dynamo to different cinema houses on rental basis and the accused No. 1 who runs a cinema at Nayagarh had obtained a particular dynamo of German make on hire basis on a monthly rent of Rs. 1800/. and took the dynamo from the complainant for running the cinema by name Durga Cinema at Nayagarh. Since he failed to pay the agreed amount, the complainant made several efforts to recover the money from him but failed. According to the complaint petition, on 2-6-1984 accused No. 1 came to Cuttack with the present petitioner (Accused No. 2) and requested the complainant to allow him to operate the said dynamo on hire basis for a further period of one year at the same rate of Rs. 1800/- per month and promised to clear up the arrear dues that had already accrued on him. Accused No. 1 then purchased stamp paper and a document was duly executed by the parties in presence of the witnesses. Even thereafter accused No. 1 failed to pay the amount as agreed upon and the complainant being seriously ill sent his son to accused No. 1 on 2-10-1984. Though the accused No. 1 made false promises to pay ultimately failed to make any payment alleging that the company was running at a loss and it was difficult for him to make payment as agreed upon. When the accused No. 1 was approached by the complainant in Nov. 1985 he promised to deliver the dynamo within fifteen days along with the arrear dues at Mangalabag residence of the complainant. The complainant after several attempts to recover failed to recover the money and receive back the dynamo from him. Later he went to Nayagarh where the cinema house is situated and came to know that the dynamo was to be sold to some outsiders. The dynamo was, however, found in the premises of the present petitioner who is a friend of the accused No. 1. It is alleged in the complaint petition that the present petitioner kept the stolen dynamo belonging to the complainant and is liable for receiving the stolen property. His further allegation was that the two accused persons were negotiating to sell the dynamo which was taken by accused No. 1 from the complainant and made an application for search warrant to recover the dynamo.

(3.) On a plain reading of the complaint petition, therefore, no case is made out against the petitioner (Accused No. 2) for having committed any offence under Section 420 or Section 406 of the I.P.C. assuming everything alleged in the complaint petition are true. Neither there was any entrustment of the dynamo made by the complainant to accused No. 2, the present petitioner, nor there is an allegation that the petitioner cheated and thereby dishonestly induced the complainant to deliver the dynamo to the petitioner. Therefore there was no basis for the Magistrate to take cognizance against Accused No. 2 for having committed any of these offences, e,g., offence under Sections 420 and 406 of the I.P.C. Further the complainant did not make out a case that the dynamo was stolen and the accused No. 2 was receiver of the stolen property and rightly the Magistrate has not taken cognizance of that allegation against the petitioner.