PROMODE TAMULY Vs. KANAK CHANDRA MORAN

JUDGEMENT

(1.) This Criminal Revision is so preferred by the petitioner-accused Kanak Chandra Moran challenging the impugned orders dated 7-4-93 and 28-5-93, so passed by the Judicial Magistrate First Class, Sibsagar in C. R. Case No. 26/93, by virtue of which particularly by the order dated 28-5-93, the learned Court below after taking cognizance of the offence has issued non-bailable warrant for the appearance of the accused-petitioner as to face the trial in connection with the said proceeding arising out of a complaint case so lodged by Ashim Khanikar figuring here as O.P. No. 1 relating to the petitioner-accused, as claimed, cheating him and thus committing an offence coming under the purview of Section 420 I.P.C. - in connection with the purchase of an elephant, namely, "Jaymala" for which, according to opposite party complainant No. 1, Rs. 60,000/- out of Rs. 80,000/- as the price fixed for the elephant was even paid to the accused who figures in the criminal revision as petitioner.

(2.) Mr. G. N. Sahewalla, learned counsel for the petitioner by particularly challenging the order dated 28-5-93, so passed by the learned Court below in the said C.R. Case 26/93 claimed that the learned Court below has erred in taking cognizance of the offence against the petitioner and passing orders under Section 204, Cr. P.C. whereas by the plain reading of the complaint petition which is marked here as Annexure-I, it will transpire that the case so put forward by complainant-opposite party No. 1 was out and out a case of civil nature and if there was any breach of contract the complainant opp. party No. 1 was at liberty as to file civil suit for the specific performance of the contract. It is pointed out that the ingredients of Section 420 I.P.C. has not been met with. In support of this contention on behalf of the petitioner-accused, 3 reported cases are referred, i.e., (1) 1992 (Supplementary) (1) page 335 (SC) (State of Haryana v. Bhajanlal). By referring to the guidelines so indicated to be looked into prior to the quashing of a proceeding under Section 482, Cr. P.C. or under Article 226 of the Constitution of India, the seven points as guidelines so incorporated in the said judgement are to be looked into and in the instant case since the complainant had filed a criminal case with ulterior motive for wreking vengeance, the cognizance of the offence should not have been taken and furthermore by the plain reading of the contents of the complaint petition it will transpire that in the surrounding facts and circumstances there was bleak chance of the petitioner being convicted and that being the position also instead of issuing process the learned Court below should have rather dismissed the complaint petition under Section 203 Cr. P.C. In this connection the learned counsel for the petitioner has also referred to para 98 of the above reported judgement. In support of the contention so made above, the learned counsel for the petitioner has also referred to AIR 1979 SC page 850 : (1980 Cri LJ 822), (Trilok Singh v. Satya Deb Tripathi) by particularly referring to para 5 of this reported case it is pointed out that in the said case the exaggerated version of the complainant was not accepted which was declared to be untrustworthy and unnatural and the matter to be of civil dispute which very much tallies with the instant case. Lastly, the learned counsel for the petitioner has also banked upon another decision and has referred to (1995) 1 Gauhati LR 183, (Dr. Ardhendu Kumar Dey v. State of Assam). By referring to para 18 of this judgement it is submitted that when a complaint case is so filed the learned Court below is not expected to observe more formalities by examining the complainant on solemn affirmation but an intelligent enquiry is to be made into the subject matter of the complaint as to enable to exercise the jurisdiction reasonably. On behalf of the petitioner it is submitted that the elephant in question was recovered from the house of Promod Tamuly does not in any way affect the case of the petitioner and in this connection particularly the affidavit-in-opposition so filed on behalf of the petitioner in connection with this case dated 4-1-94 and 2-2-95, are referred which are so filed when opposite party No. 2 Promod Tamuly made a prayer for his impleading as a party with a detailed application advancing his cause as finding place on the record.

(3.) This will not be out of place to mention that when the Rule was so issued in this Criminal Revision a prayer was so made by Promod Tamuly, O.P. No. 2 for his being impleaded as he was claiming the said elephant in question on the basis of an agreement relating to sale to him by the accused-petitioner and the said agreement is also filed which is market as Annexure-A. Promod Tamuly, O.P. No. 2, is represented by his learned counsel Mr. S. K. Kezriwal.