M/s. Nakoda Tours and Travels and Others vs M/s. Kalpataru Tours and Travels Pvt. Ltd. and Another

R.C. Chavan, J.—Heard learned counsel for parties. By consent the petition is heard finally at the admission stage. This petition questions the order passed by the Additional Sessions Judge, Pune, rejecting the petitioners'' revision against the order, passed by the learned Judicial Magistrate First Class, Court No. 2, directing framing of charge against petitioners, for offence punishable under Sections 417 and 420 read with 34 of the Indian Penal Code.

Facts which are material for deciding this petition are as under:-

The petitioner Nos. 1, 2 and 3 entered into an agreement to purchase three buses belonging to the complainant M/s. Kalpataru Tours and Travels. These buses had been purchased under hire purchase agreement from M/s. Alpic Finance. The agreement, however, recorded that from 21.6.1996 the buses would belong to the petitioners and the petitioners were to pay the dues of M/s. Alpic Finance. The petitioners seem to have paid a sum of Rs. 7,00,000/- pursuant to the agreement. They received the delivery of buses. They did not pay Alpic Finance and ultimately Alpic seized the buses, sold them causing substantial loss to the complainant. The complainant, therefore, filed complaint before J.M.F.C. court No. 2, Pune praying for issuance of process against the petitioners for the offences punishable under Sections 406, 417 and 420 read with Section 34 of the Indian Penal Code. After examining the complainant, necessary order of issuance of process was passed. Thereafter the learned Magistrate posted the case for recording evidence before charge and seems to have examined Laxman Sundesha, who had filed complaint on behalf of the complainant company as P.W. 1. One Shantilal Balaji Mali was examined as P.W. 2. After considering the evidence tendered before him and after considering several judgments which were cited before him, the learned Magistrate observed that Sections 406 and 420 of the Penal Code cannot stand together. He held that the main ingredients to attract Section 406 has not been proved and ultimately decided to frame the charge against petitioners for offences punishable under Sections 417 and 420 of the Indian penal Code. Aggrieved thereby the petitioners approached the Court of Sessions which held that there was no agreement to sale, but only agreement to ply the buses and then went on to uphold the order passed by the learned Judicial Magistrate First class. Aggrieved thereby the petitioners are before this Court.

The petitioner No. 4 seems to be a mere witness to the agreement in question. However, it seems that the complainant contends that the petitioner No. 4 is father of petitioner No. 3 and therefore, he is also involved in the transactions.

I have heard learned counsel for the petitioner, learned counsel for the respondent No. 1.

It is unfortunate that learned Additional Sessions Judge should have proceeded to hold that the agreement at Exh. 54 was not an agreement to sell but agreement to run the buses, in the face of evidence of the witness for complainant, who specifically stated that the buses were sold for sum of Rs. 34 lacs by the agreement dated 21st June, 1996. He had stated that the contents of agreement were true. It was not for the Sessions Judge to make out a case that the complainant himself had not pleaded. If there is agreement outright selling the buses, buses being movable property, title would pass on delivery.

The learned Magistrate and the learned Additional Sessions Judge, were required to examine the question from point of existence of any intention to cheat at the inception of the transactions and not when the agreement to sell the property turned sour. Such subsequent default cannot lead to penal consequences. It would have shown that at the time of entering into agreement accused harbored dishonest intention. There is nothing in the agreement at Exh. 54 or in the evidence of two witnesses examined to show that at the inception, the petitioner harboured any dishonest intent. The petitioners had paid sum of Rs. 7,00,000/- pursuant to the agreement and taken delivery of buses. The agreement curiously also recites that the complainant was to sell the office premises to the petitioners and petitioners were authorized to purchase the property from M/s. Dilip Mohite & Company, who were the owners of the property. This part of agreement was not at all complied with by complainant and the first witness for the complainant agreed that the premises still remained with the complainant. He admitted that he did not deliver the office premises as agreed vide Exh. 54. It is indeed strange that the complainant, who alleges the accused to have an intention to cheat at the inception of the contract, himself too did not perform his part of contract. A case of breach of agreement has been turned by the complainant into an offence of cheating and it is unfortunate that the Courts below have accepted the word of complainant for its face value. There is nothing to show that the petitioners harboured any intention to cheat the complainant. It is simple case of contract soured up which should not have resulted in initiation of criminal case against the petitioners. The petition is, therefore, allowed. The impugned orders passed by the learned Magistrate and learned Judge, are set aside and the petitioners-original accused are discharged. Learned counsel for the respondent prays for stay of the order for a period of 8 weeks. The order may not be put to any execution by the trial Courts for a period of 8 weeks.