DIPAK MOORMOO Vs. SONARAM PHUKAN

JUDGEMENT

(1.) This is an application under Section 482 of the Code of Criminal Procedure, 1973 for quashing of criminal proceedings in Case No. 422 C of 1979 pending in the Court of Judicial Magistrate, 1st Class, Dibrugarh and the order dated 12-9-80 passed in the said case framing charge under Section 406 of the Indian Penal Code against the petitioner.

(2.) The facts of the case in brief may be stated thus. On March, 1977 the petitioner, who was the President of the District Congress Committee (D.C.C. in short), Dibrugarh was allotted an Ambassador Car bearing No. WMC 7307 by the All India Congress Committee (A.I.C.C. in short) for use in the Said D.C.C. The car was being used as such. However, on 21-3-78, the petitioner left the Congress and joined Janata Party. The allegation is that after leaving Congress and ceasing to be the President of the D.C.C. the said car was not returned to the D.C.C. despite repeated reminders. A complaint was filed by the President of the D.C.C., Dibrugarh, Shri Sonaram Phukan, the successor in office and in the complaint, it was alleged that though the petitioner ceased to be a member of the Congress Party and the President of the D.C.C., Dibrugarh, he did not hand over the; car to the complainant who was the duly elected Vice-President of the said Committee and took away the car and since then had been using it dishonestly as if the car was his own inspite of repealed requests to return the same. On the basios of the aforesaid allegations process was issued under Section 406 of the Indian Penal Code by the Magistrate. The Magistrate examined two prosecution witnesses. One was the complainant himself, Sonaram phukan, and the other Prodush Choudhury, an Office Bearer of the D.C.C. Both of them in their evidence narrated the background of the petitioner, the various posts he was holding and that as he left the Congress Party he ceased to be the President of the D.C.C. Both these witnesses deposed that as the petitioner did not return the car, they were asked by A.I.C.C. to take legal steps against the petitioner for not returning the car the market value of which was Rs.40,000/-. On the basis of the aforesaid statements made by the two prosecution witnesses in their deposition the learned Magistrate held that a prima facie case under Section 406 of the Indian Panal Code was established against the petitioner and framed charge under that section. The charge was in the following language. In March 1977 you being the President of D.C.C., Dibrugarh were entrusted with Ambassador Car No. WMC 7307 by A.I.C. for use of the said D.C.C. and on 21-3-78 you left the Congress and defected to the Janata Party without returning the said car to the D.C.C., Dibrugarh and thus you committed criminal brea.ch of trust of that car and thereby committed an offence punishable under Section 406 of the Indian Penal Code and within my cognizance. And I hereby direct that you be tried by the said Court on the said charge. The aforesaid has been challenged.

(3.) Heard Mr. P.C. Kataki Senior Counsel and Mr. R. Gogoi, the learned Counsel for the petitioner. Mr. R. Gogoi, who argued the case, submitted that from a bare reading of the evidence of the two prosecution witnesses, it will be clear that the essential ingredients of an offence under Section 406 of the Indian Penal Code were totally absent and the charge was framed by the Court without applying its judicial mind in regard to the existence of the said essential ingredients. Mr. Gogoi's submission, in other words, is that even if the statements made in the deposition of the two witnesses are taken on their face value, no case is made out of an offence under Section 406, Indian Penal Code. It was pointed out that in order to bring a particular act within the purview of Section 406, it is necessary not only to establish misappropriation but also to prove that it was dishonest. Misappropriation per se will not attract Section 406 unless it is dishonest. It was submitted that the expression dishonestlyT used in Section 406 cannot be ignored by the Court while deciding whether the ingredients of an offence were present or not, because that is one of the most essential ingredient. My attention was drawn to the cross examination of P.W. 1 and P.W. 2 wherein it was stated by the witnesses that there was some dispute regarding split of the Congress Committee between two factions of the party and matters were pending in the Court regarding ownership and rights over the properties. It was submitted by Mr. Gogoi that at the most the dispute may be a civil dispute and if the parties so desire they may approach the Civil Court for recovery of the car, but there is no case for filing of a complaint in Criminal Court for offence under Section 406, Indian Penal Code. I have considered the submissions of the learned Counsel. I have also perused the complaint, the evidence of the two witnesses, and the impugned order framing charge against the petitioner.