TIBREWAL, J. - (1.) THESE two petitions have been filed against the order dated August 12, 1988 of Additional Sessions Judge, Jaipur City, Jaipur in criminal revision No. 119/1988, as well as, against the order dated October 18, 1984 of Additional Chief Judicial Magistrate No. 2, Jaipur City, Jaipur in criminal case No. 139/84 (140/83) by which he has taken cognizance against the petitioner Abdul Aziz under Section 411 IPC and against the petitioner Kayyum Khan under Section 120 B IPC. By the same order the learned Magistrate declined to take cognizance against the accused person under Sections 420, 467 and 468 IPC. The learned Magistrate has also taken cognizance against Hari Narain under Sec. 406 IPC and under Sec. 120 IPC and against Balram under Sec. 120b IPC. Aggrieved against the said order Abdul Aziz & Kayyum Khan have filed separate petitions challenging the order taking cognizance against them. After being unsuccessful in the revision filed by them. Hari Narain and Balram have not come to challenge the said order. The dispute relates to an ambassador car bearing No. MMS 1123. There is no dispute that the complainant S. D. Sharma was the registered owner of the said car. The facts of the case are that the complainant S. D. Sharma had filed a complaint in the Court of Judicial Magistrate No. 14, Jaipur City, Jaipur on 11- 08-1982 and the same was forwarded to Police Station, Ashok Nagar, Jaipur under Section 156 (3) Cr. P. C. On the basis of the said complaint crime No. 243/82 was registered at the aforesaid Police Station on 16-08-1982 under Sections 406, 467 and 468 IPC. The case of the complainant, as described in the said report/complaint is that the complainant knew one Ram Lal and through Ram Lal he came in contact with the co-accused Hari Narain on 01-09-1982.
(2.) ON 10-10-1981 Hari Narain and his brother Ram Lal met him near the Secreteriat at Jaipur when the complainant was in his ambassador car bearing registration No. MMS 1123. At that time Hari Narain asked the complainant to give his aforesaid car as he needed the same in a marriage at his village. It is alleged that Ram Lal was also present in the car and he asured the complainant and also stood as a guarantor for the return of the car. It is further alleged that thereafter the car was handed over by the complainant to Hari Narain on the same date i. e. 10-10-1981 on the assurance that the said car shall be returned after a week. However, the said car was not returned by Hari Narain as per the assurance. It was also stated in the complaint that Hari Narain was called by the complainant for several times from his village but he did not return. It was also given out that the complainant himself went to the house of Hari Narain on asking by Ram Lal but Hari Narain was not available at his house. His brother Balram who is also a co-accused in this case used to meet, who used to give false information that Hari Narain was not in the village. However, no action was taken by the complainant and it is alleged that on August 10, 1982 Sualal and Subhash came to the house of the complainant and intimated him that they have seen his car in Green Motor Works at Sikar. ON this information the complainant rushed to Sikar and found the said car in front of the aforesaid Work Shop. The accused-petitioner Kayyum Khan met him there who claimed himself as the partner of Green Motor Works and on enquiry about the car he informed that the said car was purchased by his brother from Nirlesh Kumar. It is pertinent to mention here that Hari Narain is also named as Nirlesh Kumar. It was also stated in the said complaint that Hari Narain had illegally sold the car for which he had no right. It was also stated in the complaint that the complainant asked Kayyum Khan to hand over the said car to him but he refused, inspite of the threat to him that a report shall be lodged by him. The aforesaid car was seized by the police from the possession of petitioner Abdul Aziz. The matter was thoroughly investigated first by the local police and then by the CID. After investigation it was opined that no offence was made out against any of the accused persons including the petitioners and at the best the case was of civil nature. It may be further pointed out that the said car has been handed over to the petitioner Abdul Aziz by the order of this Court dated 4-12-1984 passed in S. B. Cr. Misc. Petition No. 201/84. While passing the order, this Court had observed as under: - "in the facts and circumstances of the case, I consider it proper that the order passed by the learned Addl. Distt. Judge should be set-aside and the car should be delivered to Abdul Aziz who is a bonafide purchaser and in whose name the car has been transferred. " During the investigation the police found that the complainant S. D. Sharma had sold the car to Hari Narain and also issued a sale letter. In return, Hari Narain alias Nirlesh Kumar sold the said car to Abdul Aziz on the basis of the said sale letter the registration of the car was made in favour of Abdul Aziz. There is no dispute at present that the said car stands registered in the name of petitioner Abdul Aziz. A final report was, therefore, submitted by the police before the learned Magistrate, but before it could be accepted, the petitioner filed a protest petition. On the said protest petition the learned Magistrate initiated enquiry under Sections 200 & 202 Cr. P. C. treating the said protest petition as a complaint. After recording the evidence, the said Magistrate again came to the conclusion that no prima facie case is made out against any of the accused persons including the petitioners vide his order dated 21-11-1983. Aggrieved against the said order the complainant went in revision. It appears that the revisional Court remanded the case to the trial Magistrate for further enquiry vide order dated 05-06-1984. Thereafter, the learned Magistrate recorded the statement of one Nihal Chand and took cognizance against the petitioners vide impugned order dated 18- 10-1984, as stated above.
(3.) THE learned counsel for the petitioners straneously argued before me that the car in question was sold by the complainant to Hari Narain and it appears that there was some dispute about the payment of price on account of which the criminal case was instituted to put pressure. It was further submitted that in the entire affair, one Ram Lal was the main figure but strangely neither the complainant had made Ram Lal as a co-accused nor he was examined as a witness. It was also argued that the local police as well as the CID had investigated the matter thoroughly and after investigation it transpired that the complainant had sold the car to Hari Narain and he had issued a sale letter duly signed by him and thereafter Hari Narain sold the car to the petitioner Abdul Aziz and that on the basis of the said sale letter Abdul Aziz got his name registered under the provisions of Motor Vehicle Act. THE learned counsel further argued that in the statement no attempt has been made by the complainant to challenge the said sale letter and no witness has been examined in this connection and the trial Magistrate has also declined to take cognizance against the accused persons under Sections 406, 467 and 468 IPC. THE learned counsel also argued that this Court had also prima facie found that the petitioner Abdul Aziz is a bonafide purchaser and the car in question has been handed over in his custody. For Kayyum Khan the learned counsel argued that there is no iota of evidence against him except that he is a partner of Green Motor Works and he was present when the car was seized. Besides this, there is no other evidence to make out any case of criminal conspiracy under Section 120 B IPC against him. I have gone through the entire material on the record, including the various orders passed from time to time. I have also gone through the statements of the complainant and the witnesses. From the entire material some salient features of the case are highlighted which are narrated as under: - (1) The complainant S. D. Sharma was the original registered owner of the car bearing registration No. MMS 1123; (2) The car was recovered from Abdul Aziz and a disclosure was made at the time of seizure/recovery of the car that it was purchased by him from the co-accused Hari Narain; (3) Hari Narain had sold the car to Abdul Aziz for valuable consideration and he also issued a sale letter alleged to have been issued by the complainant and on the basis of the sale letter the car was registered in the name of the petitioner, Abdul Aziz; (4) The car is alleged to have been handed over to Hari Narain on 10-10-81 while the complaint was lodged on 11-08-82 and in between no attempt was made by the complainant to lodge the report against Hari Narain or any other person inspite of the fact, that Hari Narain did not meet him and did not return the car after one week as per the assurance given by him on 10-10-81; (5) The local police and the CID had investigated the entire matter and no prima facie case was found and it was observed that at the most the dispute is of Civil nature; (6) No evidence has been led by the complainant to show that the alleged sale certificate, on the basis of which petitioner Abdul Aziz has got his name transferred as a registered owner of the car, is a forged one or that it does not contain the signatures of the complainant; (7) Ram Lal was the main figure as per the case of the complainant, as Ram Lal stood as the guarantor and gave assurance to the complainant that the car shall be returned by Hari Narain within one week, but neither he has been made a accused nor he was examined as a witness; (8) In the proceedings of delivery of the car, this Court has also observed that the car may be delivered to Abdul Aziz on the terms and conditions on which the learned Magistrate has directed the delivery of the car, and as such, the car was handed over to him holding him to be a bonafide purchaser. The incident is of the year 1981 and now about ten years have been passed. Taking into consideration all these facts, whether it is advisable that the criminal proceedings against the petitioners should be allowed to continue, specially when no evidence has been led by the complainant that Abdul Aziz was not a bonafide purchaser of the car or that he had not purchased the car from Hari Narain ? The conduct of the complainant in lodging the complaint after so much delay and in not challenging the sale certificate also speaks a lot against him. In my view, the complainant has failed to show that the petitioner Abdul Aziz had received or retained the car dishonestly knowing or having reasons to believe that the same is a stolen property. So far Abdul Kayyum is concerned, there is absolutely no evidence to show that there was any conspiracy or that he was a party in that conspiracy. ;