Surjit Singh vs Charanjit Singh

S.S. Sudhalkar, J.

The petitioners are accused in a complaint case arising from the complaint filed by the respondent in the Court of learned Judicial Magistrate Ist Class, Ferozepur in which the petitioners have been summoned for the offence under Section 379 of the I.P.C. The other accused were not summoned and the complaint against them was dismissed.

It may be noted that complaint was filed under Sections 406 and 420 of the I.P.C. while the summoning order was under Section 379 of the I.P.C. This petition is, therefore, filed for quashing both the summoning order of the J.M.I.C. and the complaint filed against the petitioners.

The case of the complainant in the complaint is that he purchased a combine bearing registration No. PBC 9500 from the accused and paid Rs. 50,000/ and agreed to repay the loan taken by the accused for the purchase of the said combine from the State Bank of Patiala, Malout Branch and the accused agreed to transfer the ownership of combine in favour of the complainant as and when the loan was cleared and the combine was released from the mortgage with the Bank. The amount of loan of the harvester combine was Rs. 3,80,612/ with interest as on 1.10.1986. It was an oral agreement and, therefore, no receipt was taken. The complainant deposited various amounts on various dates in the account of M/s Surjit Singh and others bearing account No. PB91 in the State Bank of Patiala, Malout Branch and most of the deposit vouchers were signed by the complainant who was to go to Malout from Ferozepur to deposit the said amounts.

It is contended by the complainant in the complaint that on 20.4.1989, petitioner No. 2 came to the shop of the complainant at Ferozepur along with seven persons in a Maruti car and told the complainant that the new Manager of the said Bank wanted to see the combine. The complainant told petitioner No. 2 and others that the combine was cutting wheat in the fields of one Jaswant Singh. The accused told the complainant that they were going to see the combine at village Karma. It is further contended in the complaint that thereafter petitioner No. 2 was followed by the complainant along with the combine where the complainant went to the crossing of the road leading to Mamdot and told the complainant that Manager had gone back to Malout and the combine was being taken to Malout where the Manager of the Bank would check the same with the papers mortgaged with the Bank and that the complainant should come to Malout on the next day to bring back the combine. The complainant because of his good relations with the accused never suspected of any cheating but on reaching the Bank, he found that he had been cheated and that some wrong person had impersonated as the Bank Manager and the combine was not in the Bank premises.

I have heard the learned Advocate for the petitioners and learned Advocate for the respondent.

The learned Advocate for the petitioners has stated that there cannot be a theft and the combine was returned to the petitioners on the consent of the complainant. He has cited before me the case of Nandiram v. State of Gujarat and others, 1967 Criminal Law Journal 483. In that case, it has been held that the registration certificate is an essential necessity before any such motor vehicle can be made use of and that any person in whose favour the certificate of registration is issued, obviously would be the owner thereof. It is also held therein that a person on whose name the motor vehicle stands with the registering authority, would be entitled to keep the custody thereof and not any other person, unless he was able to establish his superior title or claim over it.

The question of title is not involved in this case. The question involved is of theft. On seeing the definition of "theft" as per Section 378 of the I.P.C., it is found that a person taking dishonestly any moveable 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. Therefore, the main thing is that the consent of the complainant should have been obtained though he might not be the owner of the combine. The case can be covered on the illustration (k) of the said Section of the I.P.C.

The learned J.M.I.C., Ferozepur has held that from the facts alleged in the complaint and the evidence led by the complainant, it has been prima facie proved that petitioners had taken the combine from the possession of the complainant without his consent and, therefore, there is a prima facie case for summoning the petitioners under Section 379 of the I.P.C.

The learned Advocate for the petitioners has argued that the case against the petitioners is false. However, truth or falsity is a thing to be decided after taking evidence and, therefore, the complaint and the summoning order cannot be quashed at this stage.

It has been held by the Hon'ble Supreme Court in the case of State of Bihar v. Murad Ali Khan and others, AIR 1989 SC 1 that "in exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the Trial Magistrate when the evidence comes before him."

Looking to the above position, it will be in the fitness of things that the correctness of the allegations be decided by the trial court before the case has to proceed and that this Court should not take up to its own to decide the correctness of the allegations which are subject matter of evidence still to be recorded.

This being the position, this petition is without substance and is, therefore, dismissed.