Ratish Rai vs Mohesh Singh

S.M. Ali, J.—Heard learned Counsel Mr. J.K. Barua on behalf of the accused-petitioner and learned Counsel Mr. S.N. Medhi for the opposite party.

The opposite party submitted a complaint petition before the Addl. Deputy Commissioner. Tuensang against the present petitioner Ratish Rai to the effect that both the complainant and the accused jointly purchased from (he Army at Gauhati a truck (Nissan) at a cost of Rs. 23,000/- and that the truck was repaired at Jorhat at a cost of Rs. 7090/--antl that the complainant paid half of the money involved in purchasing the truck and in repairing it. The vehicle was registered in the name of Raju Rai, son of the accused and was numbered NLI-524. It is alleged that the accused Ratish Rai executed a deed/agreemenl in presence of respectable persons at Tuensang on 9-7-82 to the effect that both the complainant and the accused formed a partnership in the vehicle. On 1-9-82 as the complainant approached the accused and wanted to know about the profit and loss of the truck, the accused flatly denied the complainant having anything to do with the vehicle. It is also alleged that on 1-9-82 in presence of respectable witnesses the accused denied having executed any document of partnership. The complaint had been lodged against the accused person for having cheated the complainant and having committed criminal breach of trust with respect to the vehicle. The relief sought by the complainant is "to take suitable action to transfer the vehicle in my name on payment of his share as agreed upon".

The learned ADC on perusal of the petition took cognizance of the offences Under Sections 406 and 420 IPC and issued summons to the accused fixing 14-10-82 as the next date. Thereafter, the complainant on 22-9-82 submitted a petition supported by an affidavit to the learned ADC praying for attachment before Judgment of the vehicle concerned. Thereon the learned ADC got satisfied and issued non-bailable warrant of arrest against the accused and order of attachment of the vehicle on 22-9- 82. The accused surrendered before the court on 22-9-82 and he was enlarged on bail of Rs. 30,000/-. This order was conditional upon production.of the vehicle by the accused before the Police for attachment within 20 days. This revision petition has been filed for quashing of the proceeding.

Learned Counsel Mr. Barua for the petitioner submitted that (he learned ADC did not examine the complainant u/s 200 Cr.PC and that this is an incurable invalidity for which the entire proceeding should be quashed. In support he relied on Dulichand Bothra and Another Vs. The State, in which for non-observance of the provisions of Section 190(1)(e) the entire proceeding was quashed. Mr. Medhi on the other side, however submitted that only the spirit of Cr.P.C. has to be followed in those areas including Tuensang where the Administration of Justice and Police Regulation is in force. Mr. Barua pointed out that Dulichand Bothra and Another Vs. The State, came to the aforesaid decision while discussing Rule 22 of the Administration of Justice and Police Regulation. The examination of the complainant u/s 200 Cr.PC is a procedure which adds to the credibility of the complaint at the initial stage. The complaint is the foundation of the entire proceeding. So, it should have a test of credibility by examining the complainant on oath as regards the facts of the complaint. In this sense it can be said that the spirit of the Cr.PC has not been followed in the present case. Ml. Barua stressed on the illegality of the order passed u/s 83 Cr.PC. The provisions of Section 83 Cr.PC follow the provisions of Section 82 Cr.PC and without having issued any proclamation as envisaged u/s 82 Cr.PC attachment of the property of the accused is not permissible. In the instant case also there has not been any proof or material to show that the accused was absconding. So, the order passed u/s 83 Cr.PC has been illegal. This is frankly conceded by Shri Medhi, learned Counsel for the other side. Then Mr. Barua referred to the offences u/s 406 IPC. According to him, no partner of a partnership can be accused of having committed criminal breach of trust with regard to the asset of the partnership. In support he referred to Chiranjilal Sharma Vs. Raja Ramsingh, Sri Medhi also frankly admitted that there might not be ingredients of the offences u/s 406 IPC in the present case. What Mr. Medhi stresses is that there are ingredients of the offence u/s 420 IPC inasmuch as facts are there which show that the accused had the intention of deceiving or cheating the complainant while purchasing the truck/entering into partnership business. But a reading of the complaint docs not disclose this. Mr. Barua relied on AIR 1976 SC 169 (sic) in respect of his argument that there must have been a clear statement saying that the criminal intention of cheating was there on behalf of the accused while the alleged transaction was entered into. He argues that there is no statement of this nature in the complaint. In my view, the totality of the facts suited in the complaint discloses a dispute of civil nature and the complainant may take recourse to a proceeding of civil nature to get redressal of his grievances. Mr. Barua also pointed out in this connection that the trial is admittedly in the name of the son of the aceused-pelitioner. It is not there that the son, Raju Rai is a party to the proceeding. Mr. Medhi. on the other hand, pointed out that as per statement in the complaint, the complainant bore 50% cost of the purchase and repair of the vehicle.

Any way, I find that the matter is of civil nature and as said before, the order passed by the learned ADC have been illegal. In this view of the matter, the petition has to be allowed. The complainant, however, may bring any civil proceeding against the accused-petitioner, if he has any grievance.

In the result, the petition is allowed and the proceeding is quashed.