Md. Akhtar Khan v. 1. The State of Jharkhand. 2. Susila Devi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1557 of 2009 Md. Akhtar Khan ..... … Petitioner Versus 1. The State of Jharkhand. 2. Susila Devi -------- ..... … Opposite Parties
Legal Reasoning
CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner For the State For the O.P. No. 2 ------ : : : Mr. Sajeev Thakur, Advocate. Mr. Shiv Shankar Kumar, A.P.P. None. ------ 13/ 27.03.2023 Heard Mr. Sanjeev Thakur, learned counsel appearing for the petitioner and Mr. Shiv Shankar Kumar, learned A.P.P. appearing for the State. 2. On 06.01.2023, nobody had appeared on behalf of the petitioner and the O.P. No. 2, that’s why the matter was adjourned. On 20.03.2023, O.P. No. 2 was not present and with a view to provide an opportunity to the O.P. No. 2, the matter was adjourned and in that order, it was made clear that on the next date, if the O.P. No. 2 does not appear, the matter will be decided in her absence. Today also, nobody has responded on behalf of the O.P. No. 2 in spite of repeated calls, as such, the matter has been heart on merits. 3. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 20.05.2009, by which, cognizance for the offences under Sections 420 and 406/34 of the IPC has been taken against the petitioner, in connection with Harla P.S. Case No. 35 of 2009 (G.R. No. 434 of 2009), pending in the court of learned Judicial Magistrate, 1st Class, Bokaro. 4. The prosecution case in brief is that the dumper bearing registration No. JH-09-H-1322 was purchased by the informant on hire purchase basis, but due to her inability she had parked the same at her residence. It is further alleged that the accused No. 1 accompanied with the petitioner No. 2 had arrived at her residence and introduced themselves and had allegedly offered to play the vehicle and pay her 8-10 thousand monthly and also the installment of the financer. It is further alleged that the petitioners had not paid a single penny to the informant and at the time of demand, they had not paid proper attention and on repeated demand, the petitioners had allegedly threatened of dire consequence. It is further alleged that the Financer had demanded the amount of installment and in default are demanding the possession of the dumper in which she is unable to do the same. -2- 4. Learned counsel appearing for the petitioner submits that an agreement was made between the petitioner and the O.P. No. 2 with the arrangement that he will pay Rs. 70,000/- and also go on paying the EMI of the vehicle in question to the financer and after completion of the EMI the petitioner will become the owner of the vehicle. He submits that in view of the agreement, a sum of Rs. 70,000/- has already been paid to the O.P. No. 2. He further submits that the agreement is dated 19.01.2009 and by way of placing Annexure-3 series, he submits that certain payment receipts issued by the financer has been annexed, which suggests that the petitioner was going on paying the EMI, however, due to certain exigency, the further EMI has not been paid and for that the case has been lodged. He further submits that the petitioner has already filed a title suit for possession of the vehicle in question, which is still pending. On these backgrounds, he submits that this case is malicious in nature. 5. Learned A.P.P. appearing for the State submits that the chargesheet has been submitted in the case and the learned court has taken the cognizance. 6. In view of the above submissions of the parties, the court has gone through the materials available on record and finds that admittedly there is an agreement between the petitioner and the O.P. No. 2 for taking over the vehicle in question and it was agreed that the petitioner will pay a sum of Rs. 70,000/- to the O.P. No. 2 and the petitioner will also pay the EMIs of the vehicle in question and after completion of the EMI, the petitioner will become the owner of the vehicle in question. Admittedly, in the agreement itself, it has been disclosed that Rs. 70,000/- has been paid to the O.P. No. 2 by the petitioner and Annexure-3 series are the payment receipts, issued by the financer, which suggests that the petitioner was going on paying the EMI and the Title Suit filed by the petitioner for recovery of the vehicle in question is also pending. It is not the case that from the very beginning, there was intention of cheating the O.P. No. 2, because a sum of Rs. 70,000/- as already been paid and Annexure-3 series further shows that the petitioner has already paid some EMIs. 7. In view of Section 415 Cr.P.C., for making out a case of cheating, the intention from the very beginning is one of the ingredients, which is lacking in the case in hand and further title suit is pending with regard to possession of the vehicle in question, filed by the petitioner. It -3- transpires that for a civil wrong, the criminal case has been filed, which is not sustainable in the eyes of law and to allow the said proceeding will amount to an abuse of the process of the court, as has been held by the Hon’ble Supreme Court in the case of “State of Haryana and others V. Bhajan Lal and others” reported in 1992 Supp. (1) SCC 335. 8. In view of the above facts, reason and analysis, the entire criminal proceeding including the order taking cognizance dated 20.05.2009, by which, cognizance for the offences under Sections 420 and 406/34 of the IPC has been taken against the petitioner, in connection with Harla P.S. Case No. 35 of 2009 (G.R. No. 434 of 2009), pending in the court of learned Judicial Magistrate, 1st Class, Bokaro, are hereby, quashed. 9.
Decision
This petition is allowed and disposed of. Amitesh/- (Sanjay Kumar Dwivedi, J.)