PARMESHWAR BHARTI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application under sections 397 and 401 of the Code of Criminal Procedure, 1973(in short 'the Code '). It is directed against the order dated 30.8.1997 passed in Tr. No. 1354/94 by Shri R.B. Roy, Chief Judicial Magistrate, Siwan, whereby he had taken cognizance for the offences under sections 406 and 420/34 of the Indian Penal Code and had ordered for the issue of summons to the accused persons (present petitioners). He also transferred the case for trial to the court of Shri Manoj Srivastava, Judicial Magistrate 1st Class, Siwan.

(2.) IT appears that on a written report filed by the informant on 23.9.1996 a formal F.I.R. was drawn up by the police on 23.12.1996. The prosecution case, in short, is that the informant Bijay Kumar Tiwary, (opposite party no. 2) and Surya Bhushan Tiwary had sold their vehicle -Tata 407 bearing registration no. BR -29P 3775 for a consideration of Rs. 1,75,000/ -to the petitioners. In token of the consideration money petitioner no. 1 took opposite party no. 2 to Dhanbad to his brother, Kameshwar Bharti (petitioner no. 2) where a Bank draft of Rs. 75,000/ - was prepared' in his name. Subsequently it was agreed that the rest amount of Rs, 1,00,000/ - will be paid to opposite party no. 2 through a financier of Calcutta, who undertook to pay Rs. 1,00,000/ - to opposite party no. 2 and had also agreed to supply him with a chasis of the bus on a cash down payment of Rs. 2,00,000/ -. On this assurance the informant handed over the necessary papers of this truck including the owner book, tax token etc. to the petitioners. When, however, after the expiry of two months the informant went to Calcutta he could neither find the financier nor his office there. The informant (opposite party no. 2) came to the village in search of the petitioners where he found them traceless. Thus, the informant could learn that he has been cheated by both the petitioner as well as the financier named Pranamay Biswas.

(3.) A show cause has been filed on behalf of the informant opposite party no. 2.He has admitted that this revision application is not maintainable and is fit to be rejected. So far as the purchase of new chasis for Rs. 2,00,000/ - is concerned it was agreed between the parties and the financier in Calcutta that the informant was to pay only Rs. 25,000/ - and will get a new chasis as amount of Rs. 1,75,000/ - (the price as old bus) will be adjusted against the same. In this connection a reference may be made to the order dated 14.7.97 passed in Cr. Misc. No. 5868/97 by this Court in which it was observed that this appeared to be a case of civil nature as has been stated in the order of the court below. On behalf of this opposite party it has been submitted that this observation made by the court in this order (Annexure - 1) is hardly of any consequence since the observation made by the lower court has been reproduced. It has accordingly, been prayed that this revision application be rejected.