D.P.AGARWAL Vs. MOHAMMAD NUSHRAT, MANAGER

JUDGEMENT

(1.) THE instant application is directed against the order dated 23.5.1998 passed by the Sub - Divisional Judicial Magistrate, Ranchi in Complaint Case No. 327 of 1997, whereby the learned court below has taken cognizance for the offence under Section 407 IPC against the petitioners.

(2.) FACTS of the case, stated briefly. is that the complainant/opposite party in his capacity of manager of a business enterprises namely, Tulsyan Enterprises filed a complaint against the petitioners, who happen to be the representatives of a transport company namely Transport Corporation of India Limited. Complainant has alleged that two consignments comprising of two cartons of electrical materials worth Rs. 64,656.95 paise was entrusted to the transport company of the present petitioners for delivering the same by the road transport to the consignee M/s Rajendra Steel Limited, Raipur. A consignment note was issued at the time of delivery by the consignor transport company. It is further alleged that when the consignee did not receive delivery of the consignment for more than six months, the entire consignment was re -directed to the consignor at Ranchi. Complainant adds that even after lapse of more than six months when consignment was not redelivered to him, he made demands from the transport company to return the consignment but the same was not returned to him. Rather, a short certificate was issued by the transport company to the complainant on the ground that in course of transit, the truck which was carrying the goods from Raipur to Ranchi had met with an accident and the entire goods were lost. The complainant has alleged that the petitioners, who are the representatives of the transport company, had committed criminal misappropriation of the goods entrusted to them and had issued a short certificate on false pretext that the goods were lost in some alleged incident. The learned Court below had examined the complainant and two witnesses produced by him on solemn affirmation, whereafter on being satisfied that a prima facie case is made out against the accused persons for the offence under Section 407 IPC, directed issuance for summons against them.

(3.) IT appears that notice was issued and served on the opposite party/complainant, but despite service of notice, he has not appeared. From perusal of the complaint petition, it appears that the grievance of the complainant is that the goods which he had entrusted to the transport company, of which the petitioners are representatives, was not returned to him. Admittedly, an explanation was offered by the transport company for their failure to return the goods, stating that the goods were lost in transit when the truck carrying the materials met with an accident on the road and in support of such claim, short certificate was also issued to the complainant which had subsequently enabled him to claim compensation for the loss of his goods from the Insurance Com - pany. It appears therefore that the complainant has merely presumed that the representatives of the transport company have misappropriated his goods entrusted to them, though without verifying the facts and explanation offered by the transport company. From the documents annexed with the supplementary affidavit filed by the petitioner, it appears that the truck carrying the goods including that of the complainant had met with an accident and the first information report was lodged in respect of the accident at the concerned police station. Annexure -3 to the application is the copy of the F.I.R. relating to the accident. It appears that all these materials were available on record not only in the averments made in the complaint petition, but also in the statement of the complainant and his witnesses examined on solemn affirmation. The learned court below has wrongly perceived the facts of the case and arrived at a wrong conclusion that a prima facie case is made out for the offence under Section 407 IPC, although material on record do not make out any case whatsoever against the petitioners. Furthermore, it also appears that the complainant has sought to withdraw his complaint on the basis of his knowledge about the actual state of affairs. Under such circumstances, continuing of criminal proceeding against the petitioners would amount to abuse of the process of the court.