- (1.) IN this criminal revisional application invoking the provisions of Section 482 of the Code of Criminal Procedure, the petitioner challenged the order dated January 17, 2008 passed by the learned Additional Chief Judicial Magistrate, Durgapur, in connection with M. P. Case No. 157 of 2008 whereby the learned Magistrate in exercise of power under Section 156 (3) of the Code of Criminal Procedure directed the complaint made to the Court by the opposite party No. 1 against the petitioners alleging commission of offences punishable under Sections 406/420/34/120b of the Indian Penal Code, be forwarded to the Officer-in-Charge, Durgapur Police Station with a further direction that same be treated as a First Information Report and to cause investigation.
(2.) MR. Arabinda Chatterjee, the learned Counsel, appearing for the petitioners in support of his prayer for quashing urged as follows ; (a) The allegations contained in the complaint has not disclosed any offence and the learned Magistrate mechanically passed the impugned order. (b) The complainant made a wrong and false statement because as per the award the complainant is only entitled to a sum of Rs. 6,88,677/- plus interest @ 18% P. A. from March 22, 2007 till the realization, with costs and other incidental charges. (c) In the said award there was no direction for return of the vehicles but in the complaint it has been falsely alleged that complainant succeeded to get an arbitration award and also entitled to sell the said vehicle after obtaining the possession of the same from the petitioners. (d) In the complaint it has not only been falsely alleged as regards to the possession of vehicle as per the award but a deliberate false statement has been made alleging that the petitioners were intending to sell the vehicle for their wrongful gain. (e) The allegations that the petitioners are intending to sell the vehicle has been aimed to give the case a criminal flavour and for avoiding the execution proceedings as envisaged under Section 36 of the Arbitration and Conciliation Act, 1996. (f) There is no iota of materials to show that the petitioners are attempting to dispose of the vehicle for their wrongful gain. (g) As per the award the complainant is only entitled for the sum as awarded and have no claim and or right over the vehicle because the award has all the force of decree of a competent Court and in the event by any action of the judgement-debtor the award is likely to be frustrated in that case the decree holder is always entitled to move the necessary application under Section 9 of the Arbitration and Conciliation Act, 1996 for protection of the subject matter. But, in the instant case, without availing the remedies the complainant i. e. the decree holder straightway approach the criminal Court with false, frivolous and utterly misconceived allegations. (h) Since the hire purchase agreement has been terminated at the instance of the complainant and they approached the learned Arbitrator, the financier i. e. the complainant herein has no legal right to go for enforcement of any of the clauses contained in the said agreement. (i) There is suppression of material facts and the complaint has been filed to abuse of process of the Court with a mala fide intention for wrecking vengeance and the allegations are absurd and inherently improbable. In support of his submissions Mr. Chatterjee relied on the following decisions; (i) Indian Oil Corporation v. NEPC India Limited and Ors. , reported in (2006)6 SCC 736: (2007)1 C Cr LR (SC) 52, (ii) Harishchandra Prasad Mani v. State of Jharkhand, reported in (2007)1 Supreme 827 : (2007)1 C Cr LR (SC) 728, (iii) Thelapalli Raghavaiah v. Station House Officer, reported in AIR 2007 (Supple) 46 : (2007)2 C Cr LR (SC) 59.
(3.) ON the other hand, Mr. Joy Sengupta, the Learned Counsel, appearing on behalf of the opposite party No. 1/the complainant submitted as follows : (a) A plain reading of the allegations contained in the first information report clearly makes out a prima facie case of commission of the cognizable offences punishable under Sections 406/420/34/120b of the Indian Penal Code. (b) Upon failure of the hirer to pay the monthly instalments in terms of the Hire Purchase agreement, the financier took recourse to the arbitration proceedings and obtained an award and the accused persons i. e. the hirer and in one hand challenged the award, on the other hand removed the vehicle and sold it out before the award could be executed. (c) Irrespective of any award the petitioner in the absence of any order of a competent Court has no right to sell the vehicle in violation of terms of Hire Purchase agreement. ;