NARAYAN CHANDRA MUDULI Vs. MAHENDRA KUMAR MISHRA

JUDGEMENT

(1.) The petitioner has filed this application challenging the order dated 10.9.2004 passed by the learned S.D.J.M., Kendrapara in ICC Case No. 80 of 1998 dismissing the complaint petition under Section 203 of the Code of Criminal Procedure.

(2.) The petitioner filed a complaint petition against the opposite parties indicating that the opposite party no.1 is a clerk in the Syndicate Bank, Kendrapara and the opposite party no.2 is his mother-inlaw. The father of the petitioner purchased a Tractor bearing registration No.OR-02-8629 and Trailor bearing registration No.OR-02-8630 being financed by the Syndicate Bank, Kendrapara not only for cultivation purpose but also for transportation of building materials. Since there was default in payment of monthly installment to the bank towards repayment of the loan amount, the Branch Manager issued demand notice to the father of the petitioner. Due to poor financial condition, as the installment amount could not be paid in due time, the opposite party no.1 and other officials of the bank gave threatening to the father of the petitioner to file money suit for realization of the loan amount. The opposite party no.1 came to the house of the petitioner on 1.2.1996 and proposed that the opposite party no.2 is interested to take the Tractor and the Trailor on hire basis for her unemployed son. On 15.3.1996 as per the oral agreement between the parties, the opposite parties took the Tractor and the Trailor with the agreement to pay Rs.2,000/- per month to the father of the petitioner and rest Rs.7,000/- per month to be deposited in the Syndicate Bank, Kendrapara by opposite party no.1 towards clearance of the loan amount. The said agreement was valid till 31.3.1998. On the basis of such oral agreement, the vehicle in question was delivered on 20.3.1996 to the opposite party no.2 and assurance was given to the father of the petitioner by them to execute an acknowledgment deed on 21.3.1996. The father of the petitioner came to Kendrapara on 21.3.1996 and signed on a blank stamp paper in good faith as per the instruction of the opposite parties for execution of a deed of acknowledgment. It is further stated in the complaint petition that though they were paying Rs.2,000/- per month from April, 1996 onwards but they defaulted in making payment since August, 1997. Due to non-payment of the dues of the bank, the bank filed Money suit No. 23 of 1997 and T.M.S.No. 26 of 1997 for realization of the loan amount from the petitioner, his father and other brothers in the court of learned Civil Judge (Senior Division), Kendrapara. Coming to know about the cheating, the petitioner and his father met opposite party no.1 on 27.04.1998 at Kendrapara and requested him to return the tractor and the trailor along with the outstanding amount but the latter did not pay any heed rather threatened them to assault. The opposite parties also affixed a fake number on the front number plate i.e. OAU-9055 of the tractor to cheat the petitioner and his father.

(3.) To the above allegation the learned Magistrate examined the petitioner and conducted enquiry under Section 202 Cr.P.C. and thereafter, by order dated 01.05.1998 took cognizance of the offence under Section 403/406/506 read with Section 34 of I.P.C. against the opposite parties.