Ganesh Chandra Seal Versus Pabitra Kumar Dey - AIR 1969 Calcutta 232

CALCUTTA HIGH COURT

Before :- N. C. Talukdar, J.
Criminal Revn. No. 734 of 1968, D/d. 8.8.1968.

Ganesh Chandra Seal - Petitioner.
Versus
Pabitra Kumar Dey - Opposite Party.

For Petitioner :- Sanat Kumar Mukherjee and Jahar Lal Roy, Advocates.
For Opposite Party :- Surathi Mohan Sanyal and Biman Kanti Basu, Advocates.

Cases Referred :
Bhuban Mohan v. Surendra Mohan, 55 Cal WN 541 : (AIR 1951 Cal 69) (FB).

ORDER

This Rule is for setting aside a charge dated 2-5-68 framed under Section 420 of the Indian Penal Code and for quashing the proceedings based thereupon, being case No. C 870 of 1966, pending in the Court of Shri J. C. Ghosh, Magistrate, 1st Class, Alipore.
2. The facts leading on to this Rule are short and simple. The accused-petitioner is the owner of a taxi-cab bearing number W.B.T. 2286 having the requisite insurance-certificate, the tax-token and the blue-book in his name. He also has the necessary R. T. A. permit in his favour. A registered partnership was entered into between the petitioner as also the complainant opposite party on 20-1-62 for the purpose of running the taxi and to carry on business in transport. There was difference between the parties over the terms and conditions and the complainant's case is that the petitioner took over the taxi on 20-5-66 from the driver of the opposite party and is since then in possession thereof. A diary was lodged at the Shampukur Police-Station on the same date. The vehicle was seized and both the parties filed their respective claims before the Police Magistrate at Alipore. The Police Magistrate after hearing both the sides and on a perusal of the relevant papers, made over the custody of the taxi to the present petitioner on 30-5-66. The case of the petitioner is that he had bona fide taken over the taxi from the complainant-opposite party because of the breach of the terms and conditions of the registered agreement and there was no dishonesty on his part. A petition of complaint was filed by the complainant-opposite party under Section 411 of the Indian Penal Code against the petitioner on 28-5-66 and the Police Magistrate at Alipore was pleased to direct the Tollygunge Police to enquire and report. The report ended in favour of the accused-petitioner and the complainant filed a naraji thereto and upon a judicial enquiry which followed, the accused-petitioner was ultimately summoned under Section 379, I. P. C. The case was thereafter transferred to the file of Shri J. C. Ghosh, Magistrate, 1st Class, Alipore, for disposal. In course of the trial six witnesses were examined on behalf of the prosecution including the complainant-opposite party (P. W. 1), his driver (P. W. 6), the Manager of the New India Bailing Company (Private) Limited (P. W. 5), a salesman witnessing the partnership deed (P. W. 2) and two formal witnesses belonging to the police. The trying Magistrate ultimately by his order dated 2-5-68 framed a charge against the accused-petitioner under Section 420, I. P. C. It is this charge and the proceeding based thereupon that have been impugned and form the subject-matter of the present Rule.
3. Mr. Sanat Kumar Mukherjee, Advocate (with Mr. Jahar Lal Roy, Advocate) appearing on behalf of the accused-petitioner has made a two-fold submission. Mr. Mukherjee has contended in the first place that in view of the registered partnership between the parties and the nature of the allegations made relating to the terms and conditions thereof, the dispute is essentially of a civil nature and the present proceedings are unwarranted and untenable. The next contention of Mr. Mukherjee is that the petitioner is the registered owner of a motor-vehicle possessing the requisite token, blue-book and insurance-certificate as also the R. T. A. permit and there is no dishonest taking on his part or any mens rea at the inception to bring the case either within the ambit of the offence charged, viz., under Section 420, I. P. C. or under Section 379, I. P. C. or under any other penal provision of the Code.
4. I have heard the arguments advanced by the learned Advocates appearing on behalf of both the parties and I have also been taken through the evidence on record. So far as the first contention of Mr. Mukherjee is concerned as to the non-maintainability of the present proceedings on the ground of an existing registered partnership between the parties is, upon ultimate analysis, untenable. In the first place, an existing partnership between the parties would not rule out offences under Section 420 or 379, I. P. C. Moreover, as has been observed by their Lordships of the Full Bench in the case of Bhuban Mohan v. Surendra Mohan, 55 Cal WN 541 : (AIR 1951 Cal 69) (FB) a partner cannot be charged under Section 406, I. P. C. in respect of partnership property jointly belonging to him and the complainant excepting in cases where by special agreement fiduciary obligations have been cast. In view of the said observation and in view of the allegations that have been made in the present case on behalf of the complainant, I do not agree with Mr. Mukherjee and his contention in this behalf accordingly fails. I find, however, that there is considerable force behind the next argument put forward by Mr. Mukherjee with regard to the absence of any criminality in the present case in view of the facts and circumstances on the record. It cannot be overlooked that the accused-petitioner, upon ultimate analysis, is the owner of the taxi cab, bearing number W. B. T. 2286, having the requisite token, insurance-certificate, the blue-book as also the R. T. A. permit. A motor-vehicle is not just an ordinary "chattel-personal" and rights and obligations are attached thereto which are meant for being observed not in their breach. If some money has been advanced by the accused-petitioner on the basis of a registered agreement, that has been entered into between the parties, the relief that ultimately lies with him is elsewhere. A proceeding in a Criminal Court connotes and predicates dishonesty on the part of the accused-petitioner and I find that in the circumstances of the present case the same is non est. A dispute between the parties based on a registered partnership agreement may better be determined in the Civil Court. In this connection a reference may be made to the evidence of P. W. 1, the complainant himself. In his examination-in-chief he has clearly stated that he entered into a partnership deed with the accused in respect of the cab in question and the same was registered. The deed has been proved as Exhibit 1. Later on in terms of the agreement the cab was being run and that on 20-5-66 his driver came back and reported to him that an unknown person had taken away the taxi from him. A diary was lodged and the present proceedings followed. P. W. 2, Dipti Chatterjee also refers to the partnership-deed between the parties in respect of the taxi-cab in question. P. W 5 who is the Manager of the New India Bailing Co. (Private) Ltd. is a material witness. He admitted that his company let out on a hire-purchase agreement to the accused-petitioner, Ganesh Chandra Seal, an Ambassador car which was converted into a taxi, viz., W. B. T. 2286. The complainant-opposite party was the guarantor in the said hire-purchase agreement. The receipts for the monthly payments have been filed in this case and it is the case of the complainant-opposite party that although the receipts bear the name of the accused-petitioner because he is the registered owner of the taxi-cab, the money was in fact paid by him. The evidence of P. W. 5, Jagdish Narayan Todi, also supports that when he states that excepting the loan instalment which was for Rs. 526.60 P. the other instalments were paid by P. K. De. The last witness is P. W. 6, the driver. The evidence given by him is rather curious. He is said to have left the car to change a ten-rupee note and when he came back he found another person also, apart from the original passenger, to be seated in the taxi and the said gentleman claimed the taxi to be his own. He further states that he went to the Shambazar Police Station to lodge a diary and informed the complainant-opposite party of the incident. His evidence further is that he only drove the taxi for about two months. Having traversed the evidence as referred to above, it is difficult for me to hold that there was any blameworthy mind on the part of the accused-petitioner at the inception and the dispute that undoubtedly appears to exist between the parties is one which can better be determined by the Civil Court. As I have already observed, a motor-vehicle is not just another "chattel-personal" and the owner thereof has got some rights as well as liabilities. In view of the relationship between the parties and in view of the nature of the evidence on record. I hold that there is considerable force behind the argument advanced by Mr. Mukherjee in this behalf and the same accordingly succeeds.
5. In the result I make the Rule absolute; set aside the charge as framed by Shri J. C. Ghosh, Magistrate, 1st Class, Alipore, on 2-5-68 under Section 420, I. P. C. in case No. C.870 of 1966; and I quash the proceeding based thereupon.

Petition allowed.
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