Natwar Lal Mishra vs The State Of Assam
2022 Latest Caselaw 3239 Gua

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GAHC010167022022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Crl.Pet./852/2022

            NATWAR LAL MISHRA
            SON OF SRI SITARAM MISHRA
            R/O FLAT NO. D-06 LAKEVIEW APARTMENT, DHARAPUR CHARIALI,
            GUWAHATI- 781017, DIST. KAMRUP (M), ASSAM AND MANAGING
            PARTNER OF EASTERN CARGO MOVERS.



            VERSUS

            THE STATE OF ASSAM
            REP. BY THE PP, ASSAM



Advocate for the Petitioner   : MR P SHARMAH

Advocate for the Respondent : PP, ASSAM




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 26-08-2022

Heard Mr. P. Sarmah, learned counsel for the petitioner. Also heard Mr. Bhaskar Sarma, learned Addl. PP for the State.

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2. By filing this criminal petition under section 482 CrPC, the petitioner has prayed for quashing of the order dated 29.10.2021, passed by the learned Judicial Magistrate, First Class, Kamrup (M), Guwahati in connection with Bharalumukh P.S. Case No. 623/2020 under section 406/420 IPC, by which the final report no. 512/2020 dated 30.11.2020 submitted in the case was accepted, thereby exonerating the accused.

3. The learned counsel for the petitioner has submitted that the I.O. of the case had not investigated the case and despite the fact that the petitioner- informant is having all the documentary evidence, which would establish the case, the I.O. did not examine the petitioner.

4. On a query of the Court as to in what manner did the persons named as accused in the FIR dated 01.11.2020 had committed breach of trust and had cheated the petitioner, it was submitted that the unregistered partnership firm of the petitioner namely, M/s. Eastern Cargo Movers was the registered owner of 5 (five) trucks, which was taken away by the three accused persons named in the FIR. It was submitted that all the said three FIR named accused persons along with the petitioner were the partners of the herein before named firm. However, the said three FIR named accused had retired from the partnership and as per the terms and conditions of the said retirement deed dated 03.08.2020, the three FIR named accused were handed over the said five trucks on condition that they would liquidate the bank loan availed to purchase the truck. It was further submitted that it was clearly stated in the FIR that petitioner had handed over signed motor vehicle transfer form in good faith, believing that the three FIR named accused would liquidate the vehicle loan. However, only when the loan installment was deducted from the account Page No.# 3/8

of the firm, the petitioner realized that he was cheated by the three FIR named accused, who were using the vehicle without transferring the vehicle in their names, and thereby committing breach of trust. The learned counsel for the petitioner had submitted that between the date of retirement deed, i.e. 03.08.2020 and on the date of lodging of the FIR, i.e. 01.11.2020, the bank had already deducted installment amounting to Rs.6,43,500/- from the account of the firm of the petitioner. It was submitted that if the FIR named accused use the 5 (five) trucks standing in the name of the firm of the petitioner to transport contraband like narcotic drugs, the petitioner would suffer legal consequences, which includes incarceration in jail. In support of his submissions, the learned counsel for the petitioner has referred to documents annexed to this petition and has also placed reliance on the judgment rendered in the case of Union of India v. W.N. Chadha, (1993) Supp (4) SCC 260 (para-92) . It was submitted that as the I.O. had submitted a final report, which was accepted by the learned Court below, it would be construed that this was a case of no evidence as envisaged under section 169 CrPC, which has caused immense prejudice to the petitioner.

5. The learned Addl. PP has made his submissions in the matter.

6. The Court is conscious of the fact that while entertaining the criminal petition, the thumb rule is that the evidence is not to be intrinsically examined. But as the learned counsel for the petitioner had made an extensive and lengthy submission on merit of the allegations contained in the FIR, which has compelled the Court to cursorily examine the voluminous documents appended to this petition, as it was vehemently insisted by the learned counsel for the petitioner.

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7. On a cursory from the documents appended to this petition it is inter alia, observed as follows:-

a. By a deed of partnership dated 05.02.2015, seven persons, including the petitioner and the three FIR named accused had agreed to carry out partnership business under the name and style of M/s. Eastern Cargo Movers.

b. The first partner is the father of remaining six partners. Thus, it was an exclusive family business.

c. There is no document to show that the partnership was registered as per the requirement of Partnership Act, 1932. d. On 01.08.2020, three out of the seven partners had entered into a fresh partnership deed in respect of the same firm, by mentioning in the narration of the deed that their father and three brothers had willingly submitted retirement letter.

e. On 03.08.2020, the seven original partners of the firm had executed a Deed of Retirement in respect of the said firm. In the narration of the said retirement deed, it has been mentioned, amongst others, that the assessment valuation of the firm was Rs.5,74,00,000/-, rounded up to Rs.5,00,00,000/- (Rupees five crore only) and that each partner would be entitled to Rs.71,42,857/-, rounded up to Rs.70,00,000/- (Rupees seventy lakh only).

f. In clause 4 of the deed of retirement, it was agreed that the continuing partners would pay all the debts and liabilities of the firm as on that date.

g. In clause 13 thereof, it was agreed that some movable and immovable properties valued at Rs.1,84,00,000/- (Rupees One crore Page No.# 5/8

eighty four lakh only) including 9 (nine) vehicles mentioned in the list of vehicles received by the retiring partners (appended to the deed of retirement), would be given to the retiring partners, which is inclusive of the said 5 (five) trucks mentioned in the FIR. h. After adjustment and settlement of accounts, it was agreed that a sum of Rs.1,74,00,000/- was due and payable to the retiring partners in lieu of their share.

i. Accordingly, it appears that the partners had agreed to adjustments and exchange of money and property as morefully mentioned in the retirement deed to settle their respective accounts.

8. Thus, on cursory reading of the Deed of Retirement, it appears that the five trucks were consciously handed over by the continuing partners to the retiring partners in lieu of their share and that apart from movable and immovable assets handed over to the retiring partners, they were entitled to a further sum of money to the extent as indicated herein before. Thus, the only presumption that can be drawn is that the FIR was lodged on 01.11.2020 to use it as a leverage to wriggle out from complying with the clauses of the deed of retirement dated 03.08.2020.

9. Thus, in view of the discussions above, the petitioner has miserably failed to prima facie show the learned Court below had committed any error or illegality in accepting the Final report. In this case in hand, the petitioner has not been able to demonstrate that the allegations made in the FIR to the effect (i) that the petitioner had handed 5 (five) trucks to the FIR named accused on condition that the said FIR named accused were required to and/or liable to repay the bank loan for the said five trucks, or (ii) that the NOC Page No.# 6/8

to transfer the said five motor vehicles was issued in good faith that the FIR named accused would repay the bank loan, or (iii) that in view of the default of the FIR named accused to repay the loan against the said 5 (five) trucks, the petitioner was cheated by the FIR named accused as the bank had deducted loan installment from the bank account of the firm is supported by the contents of the deed of retirement dated 03.08.2020, referred to herein before.

10. The observations made by the Supreme Court of India in para-92 of the case of W.N. Chadha (supra), is of no help to the petitioner. It has been observed in the said para-92 that an accused has no right to have any say as regards to the manner and method of investigation. This is a well settled legal position. But, the learned counsel for the petitioner has not been able to show as to how it helps to espouse the case of the petitioner.

11. Moreover, the learned counsel for the petitioner has not been able to show how section 169 CrPC is attracted in this case, which relates to the provision for releasing of the accused when evidence is deficient.

12. Therefore, from the documents appended to this petition, which was extensively read over by the learned counsel for the petitioner, there can be no conclusion other than that the learned Judicial Magistrate First Class, Kamrup (M), Guwahati had not committed any jurisdictional error in accepting the final report no. 512/2020 dated 30.11.2020, submitted by the I.O. in connection with Bharalumukh P.S. Case No. 623/2020 under section 406/420 IPC. Rather, it is appreciated that the learned Court below, by passing the impugned order, had rightly prevented the petitioner from abusing the process of law to convert a civil dispute to a criminal prosecution of the FIR named accused persons.

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13. It may be mentioned that the learned counsel for the petitioner had produced a copy of common judgment and order dated 16.08.2022 passed by this Court in W.P.(C) 6672/2022, W.P.(C) 1115/2022 and W.P.(C) 6674/2021, which discloses that a title suit was filed, which was later on withdrawn. Moreover, the concerned parties have also instituted application under section 9 of the Arbitration and Conciliation Act, 1996, which is pending. In the herein before order dated 16.08.2022 in W.P.(C) 6672/2021, this Court had observed, amongst others, that the right to use the 6 (six) numbers of vehicles would be decided in proceedings under section 9 of the Arbitration and Conciliation Act, 1996. However, it is not known whether any of the litigating parties had applied for appointment of arbitrator or not. Therefore, it appears that having contested the herein before referred proceeding, as an after-thought, the petitioner has filed the present petition on 24.08.2022 to assail the impugned order dated 29.10.2021.

14. Therefore, there is no merit in the criminal petition presented by the petitioner, who is the informant in Bharalumukh P.S. Case No. 623/2020, where final report no. 512/2020 dated 30.11.2020 had been submitted, exonerating the FIR named accused. The Court is inclined to hold that there is no infirmity and/or error apparent on the face of record in respect of the order dated 29.10.2021, passed by the learned Judicial Magistrate, First Class, Kamrup (M), Guwahati in connection with Bharalumukh P.S. Case No. 623/2020.

15. Therefore, this criminal petition is devoid of any merit and the same is dismissed at the motion stage without issuing any notice on the respondent.

16. Before parting with the records, it is clarified that the Page No.# 8/8

observations made in this order is qua the present challenge, and is not intended to be a final opinion of the Court on the merit of the claim of the petitioner. Therefore, for any purpose, other than acceptance of the final report no. 512/2020 dated 30.11.2020 in Bharalumukh P.S. Case No. 623/2020, the observations made in this order shall not cause any prejudice to any of the parties to the present dispute.

17. The Registry shall transmit a copy of this order to the Court of Judicial Magistrate First Class, Kamrup (M), Guwahati to enable the said learned Court to make this order a part of the record of Bharalumukh P.S. Case No. 623/2020.

JUDGE

Comparing Assistant