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SRI PULAK GOSWAMI, MANAGING DIRECTOR, M/S. KIRON TRANSPORT PVT. LTD., & ANOTHER V/S THE STATE OF ASSAM & ANOTHER, decided on Monday, July 10, 2017.
[ In the High Court of Gauhati, CRL. PET. No. 263 of 2014. ] 10/07/2017
Judge(s) : MANASH RANJAN PATHAK
Advocate(s) : P. C. Goswami, D. Talukdar, K. Saikia. R1, Public Prosecutor, K. Sarma, D. Das, Md. A. Hussain, K. M. Sarma, K. Choudhury, R2, M. Beria.
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    Cav Order:1. Heard Mr. Debajyoti Talukdar learned counsel for the petitioners. Also heard Mr. H. Sarma learned Addl. Public Prosecutor for the State respondent No. 1 and Mr. Kanak Sarma learned counsel assisted by Mr. Ditul Das learned counsel for the respondent No.2.2. M/s. Kiron Transport Private Limited Guwahati deals with selling of vehicles manufactured by Tata Motors and the petitioner No. 1 is its Managing Director whereas the petitioner No. 2 is its General Manager.3. The respondent No. 2/complainant purchased a TATA Ace Magic Vehicle from said M/s. Kiron Transport Private Limited Guwahati on 09.07.2009 for an amount of Rs. 2 58 000/- through Tata Motors Finance Limited. The said motor vehicle is hypothecated with the said Finance Company Limited. For such finance of said vehicle of the respondent No. 2 bearing Registration No. AS18C 1239 Engine No. 275IDI05FQZS56512 and Chassis No. MAT4451119VF13798 an agreement of hire-purchase was executed between the respondent No. 2 and the Tata Motors Finance Limited on 10.07.2009 with the stipulated conditions that the borrower/respondent No. 2 shall repay the loan amount to said motor finance company that financed his said vehicle in 47 equated monthly installments. As the respondent No. 2/borrower defaulted in making payments of the monthly installments the Tata Motor Finance Limited invoked the Arbitration Clause as per the terms and conditions incorporated in said agreement dated 10.07.2009 between it and the respondent No. 2 and in the said Arbitration Proceeding No. TMFL/9478/2012 the Arbitrator on 07.05.2012 passed an interim order and on 17.12.2012 passed the final award in favour of said Tata Motors Finance Limited and against the respondent No. 2.4. Thereafter the respondent No. 2 on 21.03.2013 as a complainant filed a criminal complaint in the Court of learned Chief Judicial Magistrate Goalpara being C R No. 197C/2013 against four persons that includes (i) the present petitioner No. 1; (ii) General Manager of M/s. Kiron Transport Private Limited; (iii) General Manager of Tata Motors Limited and (iv) General Manager of Tata Motors Finance Limited alleging commission of offences under Sections 120(B)/420/406/468/34 IPC against them. After receipt of said criminal complaint in CR No. 197C/2013 the learned CJM Goalpara transferred the said complaint to the Court of learned Additional Chief Judicial Magistrate Goalpara for its disposal. The learned Trial Magistrate i.e. the Addl. CJM Goalpara on 03.04.2013 after recording the statement of the complainant/borrower/respondent No. 2 under Section 200 CrPC by his order dated 12.04.2013 took cognigance of the offences under Sections 120(B)/420 IPC against all three accused named in said complaint including the present petitioners and issued summons for their appearance in the said case.5. It is submitted that petitioner No. 1 being the Managing Director of M/s. Kiron Transport Private Limited and the petitioner No. 2 being its General Manager are not connected with the day to day affairs of the said Company and as such they cannot be roped in for committing any such offences as alleged by the complainant. It is also submitted that the complainant made false allegations that M/s. Kiron Transport Private Limited took an amount of Rs. 10 000/- from him for making route permit and registration of his said vehicle which cannot be accepted as the complainant is a resident of Goalpara as such registration of his vehicle and route permit should be made before the District Transport Officer at Goalpara only and the complainant failed to place any document to substantiate his claim except making mere statement.6. For all these the petitioners submitted that as there is no specific allegations against them since they are not connected to day to day affairs of M/s. Kiron Transport Private Limited and on the basis of false allegations made by the complainant the learned Addl. CJM Goalpara committed illegality in taking cognigance of the offences under Sections 120(B)/420 IPC against them by the impugned order dated 12.04.2013 in said CR Case No. 197C/2013 and that the same was issued in violation of the provisions of law it is submitted by the petitioners that the impugned order dated 12.04.2013 as well as the proceeding of said CR Case No. 197C/2013 should be set aside and quashed against them.7. Mr. K. Sarma appearing on behalf of the complainant/respondent No. 2 submitted that the said criminal petition is not maintainable and that fake certificate was given to him by M/s. Kiron Transport Private Limited so as to harass him and that all these being matter of evidence needs to be considered during the trial of the case and therefore there is no scope of interference of the impugned order dated 12.04.2013 passed in said complaint case CR Case No. 197C/2013. Mr. Sarma also submitted that the complaint petition of the respondent No. 2 should not be thrown out at the initial stage as the accused persons would get the opportunity to establish their claim during trial of the case.8. Learned counsel for the petitioner placed reliance on the Judgments of the Hon’ble Supreme Court in the case of Punjab National Bank and Others -Vs- Surendra Prasad Sinha reported in (1993) Supp SCC 499 and Anup Sarmah -Vs- Bhola Nath Sharma reported in (2013) 1 SCC 400. On the other hand Mr. K. Sarma learned counsel for the respondent No.2/complainant relied on the Judgments reported in 1992 Supp (1 ) SCC 335 [State of Haryana -Vs- Bhajan Lal and Others] 2010 (1) GLT 588 [Jakir Hussain (Md.) and Others -Vs- Sabnam Begum] 2010 (1) GLT 619 [Prem Das Dahiya -Vs- Dayashish Chakma (Dr.) and Another -Vs- Another] 2010 (2) GLT 535 [Pallav Das alias Kero Young -Vs- State of Assam and Another] and 2011 (3) GLT 554 [Om Prakash -Vs- Central Bureau of Investigation and Another].9. Heard the submissions made by the learned counsel for the parties and considered the Judgments cited by them.10. From the perusal of the criminal complaint dated 21.03.2013 filed by the respondent No. 2 before the learned Chief Judicial Magistrate Goalpara in said CR Case No. 197C/2013 it is seen that the complainant/respondent No. 2 did not state anything regarding the final award about the Arbitration Proceeding being No. TMFL/9478/2012 that was drawn against him by the petitioner company except the interim order dated 07.05.2012 passed in the said proceeding against him and except making a statement before the trial magistrate at Goalpara in said CR Case No. 197C/2013 that he received a notice from Bombay Court regarding his non-payment of installments for his said vehicle while his statement was recorded under Section 200 CrPC. This fact clearly reveals that the complainant/respondent No. 2 was fully aware of the said Arbitration Proceeding No. TMFL/9478/2012.11. Further from the said criminal complaint of the complainant/respondent No.2 dated 21.03.2013 pertaining to CR Case No. 197C/2013 it is seen that the complainant neither in his said complainant nor in his statement under Section 200 CrPC in the case specified the person of said M/s. Kiron Transport Private Limited against whom such accusations are alleged.12. Moreover from the perusal of the complaint of said CR Case No. 197C/2013 it is seen that all the accused of the said complaint are outside the territorial jurisdiction of the trial magistrate i.e. the Additional Chief Judicial Magistrate Goalpara. But without making any statutory enquiry as required under section 202 CrPC said trial magistrate by the impugned order dated 12.04.2013 passed in said complaint case CR No. 197C/2013 took cognigance of the offences under Sections 120(B)/420 IPC against the present petitioners and the other accused M/S. Tata Motor Finance Company Limited named in the said complaint and issued summons to them for their appearance in the said case.13. After the amendment of CrPC by the Amendment Act of 2005 it is settled that with regard to private complaint it is mandatory for the trial magistrate to postpone the issue of process against the accused persons when they are outside its territorial jurisdiction as it was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the magistrate to enquire into the case himself or to direct investigation to be made by a police officer or by such other person as he thinks fit for the purpose of finding out whether or not there was sufficient ground for proceeding against the accused before issuing summons in such cases.14. Moreover in the present case the Trial magistrate have also failed to consider the issue relating to delay in filing the said complaint by the complainant/borrower/respondent No. 2 as he filed the said complaint only on 21.03.2013 though he took the delivery of the vehicle in question on 09.07.2009 and the Arbitrator passed the award in the arbitration proceeding against the complainant on 17.12.2012 itself.15. In the case of Narmada Prasad Sonkar @ Ramu -Vs- Sardar Avtar Singh Chabara & Others reported in (2006) 9 SCC 61 the Hon’ble Apex Court have held that –“If the magistrate had not followed the procedure and has failed to apply his mind as required by law the order issuing process could be quashed but the Magistrate should be directed to reconsider the matter and pass fresh order in accordance with law.”16. For the reasons above and finding such procedural irregularities the Court is of the view that if the impugned order dated 12.04.2013 passed by learned Additional Chief Judicial Magistrate Goalpara in the complaint case CR Case No. 197C/2013 in taking cognizance of the offences under Sections 120(B)/420 IPC and in issuing summons to the accused persons in the said case including the petitioner herein is allowed to continue it would be an abuse of the process of the court and as such for the ends of justice in exercise of the power vested under Section 482 CrPC the impugned order dated 12.04.2013 passed by learned Additional Chief Judicial Magistrate Goalpara in the complaint case CR Case No. 197C/2013 that was preferred by the respondent No. 2 is set aside and quashed.17. However the learned Additional Chief Judicial Magistrate Goalpara shall reconsider the matter pertaining to said complaint case being C.R. Case No. 197C/2013 of the complainant/respondent No. 2 and pass a fresh order on it in accordance with law.18. With the aforesaid observation and direction this petition stands allowed.19. Registry shall forward a copy of this order to the Additional Chief Judicial Magistrate Goalpara for his necessary use.