Bawa Singh vs State of Haryana

R.L. Anand, J.

This is a criminal revision and has been directed against the order dated 24.5.1992, passed by the court of Judicial Magistrate, 1st Class, Sirsa, who discharged the respondents Jodh Singh and Balwinder Singh in challan case FIR No. 10 dated 7.1.1992 u/s 420/379, IPC, registered in Police Station, Rania.

The brief facts of the case are that a tractor bearing registration No. HRW9551, Mark Escorts, as per the registration certificate, is admittedly the ownership of Jodh Singh and Balwinder Singh. These registered owners sold the tractor in question to the present petitioner who is the complainant of the FIR for a consideration of Rs. 47,500/. A sum of Rs. 3,000/ was also paid by way of earnest money by the purchaser to the registered owners. In pursuance of the said agreement of sale, Bawa Singh, petitioner, obtained the possession of the tractor and he further deposited a sum of Rs. 30,000/ on 19.6.1990 in Primary Land Development Bank in favour of which the tractor was hypothecated. In this manner, a sum of Rs. 33,000/ was paid by the complainant as the liability which was to be paid by the registered owners and the surety. Bawa Singh was supposed to pay the balance amount of Rs. 14,500/. The ownership of the tractor could not be transferred in favour of Bawa Singh on account of complete balance consideration having not been paid. According to the allegations of the complainant, he spent another sum of Rs. 25,000/ on the tractor in question for effecting necessary repairs. It is alleged by the prosecution that in November, 1991, Jodh Singh and Balwinder Singh respondents, came to the house of the complainant and removed the tractor when the complainant was not present in the house and this act has been done by the respondents 2 and 3 in a dishonest and fraudulent manner. Bawa Singh filed an application on 7.1.1992 before ASI Mohinder Singh regarding this alleged theft and, ultimately, the FIR was registered and both these respondents were arrested and on the completion of the investigation of the case, a challan was sent. At the stage of the charge, the learned Magistrate discharged both the respondents for the reasons contained in paras 6 to 9 of the impugned order dated 24.9.1992 and aggrieved by the said order, the present revision by the complainant.

So far as the position of law at the time of framing of the charge is concerned, repeatedly it has been laid down by the Hon''ble Supreme Court and by this court that at that stage only the prima facie evidence is to be seen and the merits are not supposed to be adjudicated. Charge was supposed to be framed in the light of the allegations as contained in section 173 report and the documents which are attached with the challan itself.

The learned counsel for the petitioner submits that the patent illegality has been committed by the learned Magistrate in discharging respondents 2 and 3 as it is established on record that the petitioner was in lawful possession of the tractor under an agreement and respondents 2 and 3 had no right to take away the tractor in the absence of the petitioner. This act on the part of respondents 2 and 3 has been done in a dishonest intention vide which the possession of the tractor has been taken. According to the learned counsel for the petitioner, prima facie, the theft as defined u/s 378, IPC, has been made out.

Refuting the arguments of his adversary, the learned counsel for respondents 2 and 3 submits that though the possession of the petitioner at one point of time was lawful but as he has not cleared the entire liability under the agreement, therefore, his possession became unlawful and, in these circumstances, respondents 2 and 3 were justified in taking back the possession of the tractor in question. It was further submitted by the counsel for the respondents in the registration certificate the name of respondents 2 and 3 figures as owner and that the ownership of the tractor in question was never transferred to the petitioner. Supplementing his argument, counsel for the respondents states that the possession of the petitioner was conditional under the agreement and till the remaining balance is paid to the respondents, the possession of the petitioner visavis the tractor shall remain permissive. Counsel for the respondents also relies upon the judgment reported in Tara Chand v. State of Punjab, 1990(1) CCC 351.

I do not agree with the contentions raised by the counsel for respondents 2 and 3. Theft has been defined u/s 378, IPC, which lays down that whoever, intending to take dishonestly any movable property out of the possession of any person without that person''s consent, moves that property in order to such taking, is said to commit theft. A reading of this provision would show that the following are the essential ingredients :

(1) Intending intention to take dishonestly;

(2) any immovable (movable ?) property out of the possession of any person without that person''s consent;

(3) moves that property in such direction.

Prima facie, the ingredients of Section 378 are attracted in this case. The initial parting of the possession in favour of the petitioner was lawful one under an agreement. What are the terms of the agreement have not been produced by the respondents either before this court or before the learned Magistrate and, in these circumstances, there was no justification on the part of the learned Magistrate to jump to the conclusion that the possession of the petitioner at that stage was permissive. The right of the respondents 2 and 3, if any, was to take the possession of the tractor in question in a lawful manner by invoking the powers of the civil court or they could claim the remaining consideration. It was none of their business to take the possession at the back of the petitioner. It is the admitted case of the parties that respondents 2 and 3 took the possession of the tractor in question at the back of the petitioner. This act, prima facie, was dishonest vide which the petitioner''s possession has been disturbed.

Resultantly, the impugned order dated 24.9.1992, cannot stand in the eyes of law and the same is hereby set aside. Directions are given to the learned Magistrate to frame the charge u/s 379, IPC, against respondents 2 and 3 and proceed with the trial according to law expeditiously.

Parties, through their counsel, are directed to appear before the trial court on 23.4.1998.