LAKSHMAN URAON, J. - (1.) PETITIONER has filed this Misc. Petition under Sec. 482 of the Cr PC for quashing the order dated 28.1.2001 passed by learned C.J.M. Sahibganj in Sahibganj Town PS Case No. 61 of 1998 (G.R No. 124 of 1998) wherein and whereunder he has taken cognizance of the offence under Sec. 406. Indian Penal Code on the basis of charge -sheet No. 65 of 2000 dated 30.9.2000 and on the basis of case diary and other police papers available on record observing the prima facie case is made out to take cognizance under Sec. 406. Indian Penal Code to proceed with the trial.
(2.) THE prosecution case is based on the written information of informant Kaushal Bharty on 1998 who is owner of Gaurishankar Maxi No. BR -35/505 On 31.3.1997 in the morning, Dewesh Kumar Mishra (petitioner) along with Maxi Driver went to him and took the Maxi Vehicle on a monthly hire of Rs. 5000.00 promising to ply the vehicle on Sahibganj Pirpaiti Road. But this petitioner accused never paid a single pie. On 29.3.1998 Ashok Kumar Mishra, father of the informant, went to Pirpaiti, but could not meet this petitioner Dewesh Kumar Mishra. His father left a letter informing him to come to Sahibganj otherwise arrange for the another vehicle. Even then, the petitioner did not go there. Again on request, father of the informant met this petitioner who replied that maxi vehicle had gone out of order, hence he could not pay the monthly hire charges to him. He promised to pay all the dues. Even on repeated demands, when no amount was paid and refused flatly threatening the informant, then he informed the police. After investigation, charge -sheet under Sec. 406, Indian Penal Code was filed against the sole petitioner. 3 Learned C.J.M. on receipt of the charge -sheet, perused the case diary and the documents available on record and found prima facie case against the petitioner -accused to proceed with the trial, hence took cognizance of the offence under Sec. 406. IPC.
(3.) ASSAILING the impugned order taking cognizance of the offence, the learned counsel for the petitioner has submitted that O.P. No. 2 Kaushal Bharty is not the absolute owner of the vehicle in question. The vehicle was purchased on 5.11.1991 from financier R.M. Finance, Maharshi Devendra Road, Calcutta having its branch office at Dr. Rajendra Prasad Road, Khalifabag, Bhagalpur at Rs. 2,47,481.00 in the joint names of Smt. Brajwala Mishra, wife of the petitioner Dewesh Kumar Mishra and O.P. No. 2 Kaushal Bharty, son of Ashok Kumar Mishra. The cost of the vehicle has already been paid on 26.6.1998. The financier intimated this fact to the District Transport Officer, Sahibganj with regard to payment of all outstanding dues from Brajwala Mishra and Kaushal Bharty in respect of vehicle No. BR -35/5055. It was denied that the said vehicle was hired by this petitioner for Rs. 5000.00 per month to run the same on Sahibganj Pirpaiti Road. Since the payment of vehicle was due to the financier, hence the case was instituted by O.P. No. 2. As the vehicle stands in the joint names of the wife of this petitioner and O.P. No. 2, hence both are equally responsible to pay the due/instalment to the financier. A compromise was entered in between the parties and the claim made by the informant Kaushal Bharty has been relinquished on payment of amount by Smt. Brajwala Mishra, wife of the petitioner. As affidavit to this effect has been filed On 16.9.1998. A panchayti was held on 25.12.1998 wherein the total payment of Rs. 60,000.00 has been made to O.P. No. 2 Kaushal Bharty for which he granted receipts and finally relinquished and sold his share to Smt. Brajwala Mishra. In course of investigation, the vehicle was seized by the police on 13.8.2000 and subsequently it was released in favour of Brajwala Mishra on 15.9.2000 by the C.J.M. Sahibganj. As the vehicle was under the control of both the partners, hence there is not question of any entrustment resulting breach of trust to attract Sec. 406. IPC. If there is any dispute, that is purely of civil nature and criminal proceeding initiated against this petitioner is abuse of the process of the Court and deserves to be quashed. The learned counsel for the petitioner while submitting on this point, has relied upon a case reported in AIR 1979 SC 850 (Trilok Singh and Ors. V/s. Satyadeo Tripathi).;