- (1.) THE instant application is directed against the order dated 23.5.1998 passed by the Sub - Divisional Judicial Magistrate, Ranchi in Complaint Case No. 327 of 1997, whereby the learned court below has taken cognizance for the offence under Section 407 IPC against the petitioners. The order impugned has been challenged on the ground that it has been passed without application of judicial mind and without considering the fact that even on the basis of the entire allegation in the complaint petition filed by the complainant/opposite party, no offence under Section 407 IPC is made out against the petitioners.
(2.) FACTS of the case, stated briefly. is that the complainant/opposite party in his capacity of manager of a business enterprises namely, Tulsyan Enterprises filed a complaint against the petitioners, who happen to be the representatives of a transport company namely Transport Corporation of India Limited. Complainant has alleged that two consignments comprising of two cartons of electrical materials worth Rs. 64,656.95 paise was entrusted to the transport company of the present petitioners for delivering the same by the road transport to the consignee M/s Rajendra Steel Limited, Raipur. A consignment note was issued at the time of delivery by the consignor transport company. It is further alleged that when the consignee did not receive delivery of the consignment for more than six months, the entire consignment was re -directed to the consignor at Ranchi. Complainant adds that even after lapse of more than six months when consignment was not redelivered to him, he made demands from the transport company to return the consignment but the same was not returned to him. Rather, a short certificate was issued by the transport company to the complainant on the ground that in course of transit, the truck which was carrying the goods from Raipur to Ranchi had met with an accident and the entire goods were lost. The complainant has alleged that the petitioners, who are the representatives of the transport company, had committed criminal misappropriation of the goods entrusted to them and had issued a short certificate on false pretext that the goods were lost in some alleged incident. The learned Court below had examined the complainant and two witnesses produced by him on solemn affirmation, whereafter on being satisfied that a prima facie case is made out against the accused persons for the offence under Section 407 IPC, directed issuance for summons against them. Learned counsel for the petitioners submits that the impugned order has been passed by the learned Magistrate without application of judicial mind and without considering the materials on record in proper perspective. Learned counsel explains that apparently the complainant has merely surmised that the goods were misappropriated since it was not returned to him. He had not verified the fact that the goods were lost in course of transit when the truck carrying the goods met with an accident. Learned counsel adds further that admittedly on the complainant's claim, a short certificate in respect of loss of the goods was issued to the complainant by the transport company and on the basis of which, the complainant had recovered compensation from the Insurance Company. Learned counsel submits that the allegation that the petitioners had misappropriated the complainant's goods is thoroughly baseless and not made even on the basis of the allegation in the complaint petition. Learned counsel adds further that having realized the correct state of affairs, the complainant had submitted a petition before the Trial Court praying to allow him to withdraw his complaint, but the learned Trial Court though had taken cognizance of the petition, but no order could be passed on the prayer since the matter was pending before this Court in the instant application. Learned counsel adds further that even otherwise, the allegation in the complaint do not make out any criminal offence whatsoever since admittedly, the complainant had entrusted his goods to the transport company and the goods were placed before the consignee at Raipur for delivery, though the consignee had refused to take delivery. Learned counsel explains that loss of goods entrusted for Transport Company in course of transit does not constitute criminal offence and it is the law relating to the Carriers Act, 1865 applies to the facts and circumstances of the case. Referring to the Section 10 of the said Act, learned counsel explains that before claiming damages for loss or injury to goods entrusted to the carrier, complainant is required to give notice within six months of the time when the loss or injury first came to his knowledge. In the instant case, no such notice was issued by the complainant to the petitioners within the stipulated period of six months and, therefore, the complainant did not have any legal right to institute any suit against the common carrier or their representatives for the loss of his goods.
(3.) IT appears that notice was issued and served on the opposite party/complainant, but despite service of notice, he has not appeared. From perusal of the complaint petition, it appears that the grievance of the complainant is that the goods which he had entrusted to the transport company, of which the petitioners are representatives, was not returned to him. Admittedly, an explanation was offered by the transport company for their failure to return the goods, stating that the goods were lost in transit when the truck carrying the materials met with an accident on the road and in support of such claim, short certificate was also issued to the complainant which had subsequently enabled him to claim compensation for the loss of his goods from the Insurance Com - pany. It appears therefore that the complainant has merely presumed that the representatives of the transport company have misappropriated his goods entrusted to them, though without verifying the facts and explanation offered by the transport company. From the documents annexed with the supplementary affidavit filed by the petitioner, it appears that the truck carrying the goods including that of the complainant had met with an accident and the first information report was lodged in respect of the accident at the concerned police station. Annexure -3 to the application is the copy of the F.I.R. relating to the accident. It appears that all these materials were available on record not only in the averments made in the complaint petition, but also in the statement of the complainant and his witnesses examined on solemn affirmation. The learned court below has wrongly perceived the facts of the case and arrived at a wrong conclusion that a prima facie case is made out for the offence under Section 407 IPC, although material on record do not make out any case whatsoever against the petitioners. Furthermore, it also appears that the complainant has sought to withdraw his complaint on the basis of his knowledge about the actual state of affairs. Under such circumstances, continuing of criminal proceeding against the petitioners would amount to abuse of the process of the court.;