Crl.Pet./696/2018
2025 Latest Caselaw 4389 Gua

Gauhati High Court

Crl.Pet./696/2018 on 24 March, 2025

GAHC010159212018




                                               2025:GAU-AS:3198

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


                      CRL.PET.NO. 696 OF 2018
                      1. Muazzum Hussain Laskar, age 24 years,
                      S/o Jamal Uddin Laskar,
                      R/o Vill. Appin R/A, P.O. Rongpur Boalipar,
                      P.S. Katlicherra, Dist. Hailakandi, Assam.

                      2. Jamal Uddin Laskar, age 58 years,
                      S/o Late Karamat Ali Laskar,
                      R/o Vill. Appin R/A, P.O. Rongpur Boalipar,
                      P.S. Katlicherra, Dist. Hailakandi, Assam.
                                                  ........Petitioners
                                -Versus-

                      1. The State of Assam represented by the
                      Learned Public Prosecutor, Assam.

                      2. Rofique Uddin Laskar,
                      S/o Lt. Abdul Jalil Laskar,
                      R/o Vill. Sahabad Part-1, P.S. Lala,
                      Dist. Hailakandi, Assam, Pin-788163.
                                                ........Respondents

                          -BEFORE-

         HON'BLE MR. JUSTICE KAUSHIK GOSWAMI

For the Petitioners   :   Mr. M. J. Quadir
For the Respondents   :   Ms. L. Yazida for respondent No. 2
                      :   Mr. P. Borthakur, learned Addl. P.P

Date of Hearing & Judgment   : 24.03.2025
                                                             Page 1 of 12
                JUDGMENT & ORDER (ORAL)

Heard Mr. M. J. Quadir, learned counsel for the petitioners. Also heard Ms. L. Yazida, learned counsel for the respondent No. 2 and Mr. P. Borthakur, learned Addl. Public Prosecutor for the State respondent.

2. By way of this petition under Section 482 of the Criminal Procedure Code, 1973 (hereinafter referred to as „Cr.PC‟), the petitioners are seeking inter alia quashing of the Judgment & Order dated 06.07.2018 passed by the learned Sessions Judge, Hailakandi (hereinafter referred to as „Revisional Court‟) in Criminal Revision No. 86/2017, the impugned Order dated 25.10.2017 passed by the learned Judicial Magistrate First Class, Hailakandi (hereinafter referred to as „Magistrate Court‟) in GR Case No. 1592/2015 arising out of Katlicherra P.S. Case No. 123/2015 registered under Sections 420/406 of Indian Penal Code, 1860 (hereinafter referred to as „IPC‟) and the Charge- sheet dated 31.10.2016 filed in connection with GR Case No. 1592/15 registered under Sections 420/406 of IPC.

3. The brief facts of the case is that on 29.07.2015, the respondent No. 2 filed a complaint being C.R. Case No. 780/2015 before the Magistrate Court alleging inter alia that on 14.01.2015, the petitioners went to his house and told him that if he purchases a 709 TATA Truck from the TATA show-room at Guwahati, then his son would get a job in the show-room and his other son would drive the vehicle.

4. It is further alleged that though the respondent No. 2 initially refused to accept the request, but later on, since the petitioners convinced his friend Amir Uddin Barbhuiya to jointly purchase the vehicle in question, he therefore paid Rs. 3,00,000/- (Rupees Three Lakhs) only to the petitioners and subsequently deposit an amount of Rs. 4,85,000/- (Rupees Four Lakhs Eighty Five Thousand) only in the Bank Account of the petitioner No. 1. Accordingly, a total amount of Rs. 7,85,000/- (Rupees Seven Lakhs Eighty Five Thousand) only was given to the petitioner No. 1, but the petitioners neither purchased the Truck nor returned the money. It is further alleged that thereafter, the petitioner No.1 disappeared.

5. Thereafter, the Magistrate Court forwarded the C.R case to the Officer-in-charge, jurisdictional Police Station with a direction to register a case. Accordingly, an FIR was registered being Katlicherra P.S. Case No. 123/2015 under Sections 420/406 of IPC.

6. After completion of the investigation, the Investigating Officer submitted Charge-sheet on 31.10.2016 against the petitioners under Sections 420/406 of IPC. Upon submission of Charge-sheet, the petitioners filed a petition vide Petition No. 259/2017 before the Magistrate Court on the date fixed for appearance, seeking discharge from the case.

7. The Magistrate Court by Order dated 25.10.2017 was pleased to reject the said petition and framed charges under Sections 420/406/34 of IPC against the petitioners. Being

aggrieved, the petitioners filed a Criminal Revision Petition being Criminal Revision No. 86/2017 before the Revisional Court. However, the said Criminal Revision Petition was also dismissed by the Revisional Court vide Order dated 06.07.2018. Situated thus, the present Criminal Petition has been filed.

8. Mr. M. Quadir, learned counsel for the petitioners submits that the allegations contained in the complaint is highly improbable and therefore, the complaint alongwith the orders of the Magistrate Court as well as the Revisional Court is liable to be quashed in terms of the Principle No. 5 enunciated by the Apex Court in the case of State of Haryana & Ors Vs. Ch. Bhajan Lal & Ors, reported in 1992 Suppl. 1 SCC 335.

9. He further relies upon the decision of the Apex Court in the case of Anand Kumar Mohatta and Anr. Vs. State (Govt. of Nct of Delhi) Department of Home and Anr., reported in (2019) 11 SCC 706.

10. He further submits that the allegations made out in the complaint is essentially of civil in nature and therefore, the order of the Magistrate Court framing charge under Sections 420/406/34 of IPC against the petitioners is totally erroneous and accordingly, the order of the Revisional Court up-holding the order of the Magistrate Court is palpably and manifestly erroneous.

11. Per contra, Ms. L. Yazida, learned counsel for the respondent No. 2 submits that the allegations set out in the

complaint petition and the materials collected by the prosecution are sufficient enough for framing the charges in question.

12. Mr. P. Borthakur, learned Addl. Public Prosecutor for the State respondent submits that that the arguments of the learned counsel appearing for the petitioners as regards the probative value of the allegations set out in the complaint, the same cannot be looked into by the Magistrate Court at the time of framing charge.

13. He accordingly submits that there is no infirmity committed by either the Revisional Court or the Magistrate Court, whereby the charges under Sections 420/406/34 of IPC was framed against the petitioners.

14. I have given my prudent consideration to the arguments advanced by the learned counsels for the contending parties and have perused the materials available on record.

15. Apt at the outset to reproduce the relevant paragraphs of the complaint, which reads as hereunder:-

"7. Facts of the case:-That, the complainants, as well as the accused persons are in habitants of adjoining village and they are related to each other. On 14/01/2015, the accused No-1 & 2 went to the house of complainant, the accused No- 2 said that his son accused No-1 resides at Guwahati. He also said that if I Purchase a 709 truck from TATA show room from Guwahati, his son i.e accused No-1 will get a job in the said show room and his other son Dilwar will drive the vehicle. Initially the complainant refused to accept the proposal. Thereafter the accused No-1 & 2 went to the house of witness No-1 who is a friend of the complainant and convinced him to purchase a vehicle jointly with the

complainant. Having agreed reluctantly I paid an amount of Rs-1, 50,000/-(One lakhs fifty thousands) & witness No-1 paid an amount of Rs-1, 50,000/-(One lakhs fifty thousands) to the accused No-1 & 2 at the house of witness No-7 in presence of witness No-2 and 3.The accused No-1 along with witness No-2 and 3 on 15/1/2015 went to Guwahati to bring the 709 TATA truck. We Promised to deposit the balance amount of the truck in the bank account of accused No-

1.After one day of reaching Guwahati the accused No-1 informed me over my mobile phone to deposit an additional amount of Rs-1,0 0000/-(one lakhs) in his S.B.I. bank account No-34003856411 and the bank account No- 73301001546 of Assam Gramin Vikas Bank and accordingly I deposited an amount of Rs-75,000/-on 19/1/2015 by three deposit vouchers obtaining receipt thereof from the concerned banks and waiting for vehicle, then again accused No-1 inform us to deposit Two lakhs,accordingly we deposited Rs- 2,00000/-(Two lakhs)on 16/2/15,17/2/2015, 18/2/2015 in the bank account of accused No-1.

Copy of the bank receipts of Bank is annexed Hereto marked as Annexure-01.02.03,04, 05,06,07, 08, 09

That, after deposit of the aforesaid amount, the accused No-1 told the Witness No-2 and 3 that he has deposited the entire amount in the TATA show room and he has instructed them to go back home and come back after one month to receive the vehicle accordingly they came back to Hailakandi. After 25 days Anarul Hoque and witness No-3 went to Guwahati when the accused No-1 asked them to deposit another amount of Rs-3,00000/-(Three lakhs) in his account. Accordingly, the witness No -7 from his account transferred an amount of Rs-40,000/ to the bank account of accused No-1 on 11/3/2015, and the complainant and the witness No- 1 deposited a further amount of Rs- 1,70,0000/(Three lakhs) to the bank account of accused No- 1 on 10/3/2015 and 18/3/2015 respectively. Thus a total amount of Rs-7, 85,000/-(Seven lakhs Eighty Five Thousands) was given to accused No-1 for the vehicle and

also spent about Rs- 25,000/- for movement. But after received of the said amount the accused No-1 disappeared and could not be found at Guwahati for which the witness No-2 and 3 returned home.

That, thereafter the complainant went to the house of accused No-2 along with witness No-1,Dilbahar Choudhury,the witness No-4,Abdul Mukit Choudhury, the witness No- 5,Alom Uddin Barbhuiya,the witness No-6 and Maskandar Ali Laskar, the witness No-7 and some other elderly persons of the locality. The accused No-2 said that he will repay the entire amount to the complainant and witness No-1 within one month when his son will come back. After one month when approached, the accused No-2 said that he will not be able to pay anything until his son comes back. It is learnt that the accused No-1 secretly comes home during night. It may be mentioned here that the accused No-1 and 2 have purchased land worth more than Rs- 7,00000/-(Seven lakhs) with the money of the complainant and witness No-1.

Thus the accused persons have cheated the complaint and witness No-1 and misappropriated and committed criminal breach of trust in respect of the amount given by them to the accused persons.

It is therefore prayed that this court would be pleased to take cognizance of the offence against the accused person or if your Honour may think fit forward the complaint to the O.C.Katlicherra P.S for its registration and investigation as P.S .case and for arresting the accused persons and recovering the money and ends of justice and oblige."

16. Reading of the aforesaid averments set out in the complaint, it appears that the petitioners approached the respondent No. 2 requesting to purchase a vehicle from one show-room at Guwahati so as to ensure a job for his son at the office of the said show-room.

17. It further appears that the respondent No. 2 refused to accept the said proposal. It further appears that thereafter, the petitioners went to the house of a friend of the respondent No. 2 and convinced him to purchase the vehicle in question jointly with him. It further appears that since the friend of the respondent No. 2 agreed to purchase the vehicle in question jointly with the respondent No. 2, the respondent No. 2 paid an amount of Rs. 1,50,000/- and his friend paid an amount of Rs. 1,50,000/- to the petitioners for buying the vehicle in question.

18. It further appears that thereafter the petitioners went to Guwahati to bring the said vehicle and after reaching Guwahati, the petitioner No. 1 informed him over phone to deposit an additional amount which was also deposited in the Bank Account of the petitioner No. 1.

19. It further appears that thereafter, neither the petitioners purchased the vehicle in question nor returned the said money given by the respondent No. 2. It further appears that after receiving the money, the petitioner No. 1 disappeared and could not be found at Guwahati.

20. It further appears that after the instant complaint being registered as an FIR case as per the order of the Magistrate Court, the investigation was completed by the Investigating Officer and a Charge-sheet was framed against the petitioners under Sections 420/406 of IPC.

21. It further appears that on the date of appearance of the petitioners fixed by the Magistrate Court, the petitioners on that

date filed an application seeking for discharge, which the Magistrate Court was pleased to reject and framed charge against the petitioners under Sections 420/406/34 of IPC.

22. Apt to refer to the Order dated 25.10.2017 of the Magistrate Court, which reads as hereunder:-

"Both the accused persons are present.

Learned counsel for the accused persons have filed petition no. 259/17 to seeking discharge of the accused persons.

Heard both side on the point of discharge. Seen the petition. On perusal of perusal of the petition it is seen that that defence has brought forth an entire new story to the case which would require proof by evidence. Therefore, the petition is rejected.

Heard both side on the point of charge. Charge is framed against the accused persons u/sec 420/406/34 of IPC.

The charge so framed has been read over and explained to the accused persons to which they pleaded not guilty and claimed to be fixed.

Copy is furnished to the accused persons under sec 207 CrPC.

Issue summons to the PWS.

Fixing 06/12/2017 for evidence.

Sd/-

Illegible Judicial Magistrate 1st Class Hailakandi"

23. It appears that thereafter, the Revision Petition was filed against the aforesaid order of the Magistrate Court, which was also dismissed by the Revisional Court.

24. Apt to refer to the relevant paragraphs of the Judgment & Order of the Revisional Court, which reads as hereunder:-

"8. On bare perusal of complaint, it is appeared that the accused persons induced the complainant to pay money on the pretext of purchasing a truck and when the money was paid, the accused Muazzum Hussain Laskar disappeared. From the materials available on record, it is appeared that there are prima facie materials against the accused persons attracting the allege offence with which they are charged.

9. The proposition of law is settled that if the court thinks that the accused might have committed the offence, it can frame charge and the probative value of the materials on record can not be gone into at the stage of framing charge (State of Maharashtra Vs. Somnath Thappa, AIR 1996 SC 1744.) The Hon'ble Supreme Court also held that at the stage of framing charge, meticulous consideration of evidence and materials by the court is not required (Radhey Shyam Vs. King Behari AIR 1990 SC 121.)

10. As I have discussed above that there is prima facie case against the accused persons, I am of the considered view that there is no infirmity in the impugned order and the Ld. Trial Court rightly passed the impugned order framing charge against the accused persons/revisionists under Sec. 420/406/34, IPC."

25. Reading of the aforesaid order of the Revisional Court, it is apparent that the Revisional Court after perusing the complaint, being satisfied that the petitioners induced the respondent No. 2 to pay money on the pretext of purchasing the Truck and when the money was paid, the petitioner No. 1 disappeared held that there being prima facie materials to proceed against the

petitioners attracting the alleged offence with which they are charged, the charge offence is made out.

26. This Court is also of the opinion that the ingredients of Sections 420/406 of IPC as regards initial fraudulent or dishonest intention and fraudulent misappropriation is clearly made out in the body of the complaint. That being so, this Court finds no infirmity in the Judgment & Order of the Revisional Court.

27. Be it pertinent to mention herein that the argument of the learned counsel for the petitioners that the allegations made out in the complaint is purely civil in nature is rejected, inasmuch as, the allegations set out in the FIR/complaint can be purely civil or purely criminal or partly criminal and partly civil. In the first category, no criminal offence can be said to be constituted. However, in the second category, criminal offence is constituted and in the third category, both civil and criminal proceedings are constituted which can be simultaneously proceeded with against the accused person. In the present case, the allegations set out in the complaint, even if they are taken at their face value to be correct, it is apparent that the said allegations are partly civil and partly criminal.

28. Though the learned counsel for the petitioners by relying upon the decision of the Apex Court in the case of Anand Kumar Mohatta (supra), made an attempt to bring his case on the category that the allegations made in the FIR/complaint are abserd and inherently improbable, this Court finds nothing improbable in the allegations made in the complaint. In fact, at

the stage of framing charge, this Court cannot look into the probabative value of the allegations made out. That being so, the instant Criminal Petition fails and the Judgment & Order of the Revisional Court stands up-held.

29. Accordingly, the Criminal Petition stands dismissed.

JUDGE

Comparing Assistant