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SCR.A/1404/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1404 of 2008
=========================================================
RANBIR
SINGH B. TOMAR - Applicant(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
=========================================================
Appearance :
MR
MAHESH B BARIYA for Applicant(s) : 1,MR SK BAGGA
for Applicant(s) : 1,
MR RC KODEKAR, ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
None for Respondent(s) : 2 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 16/09/2008
ORAL
ORDER
1. By
way of this petition, the petitioner ? original complainant has
prayed for an appropriate Writ, order and direction quashing and
setting aside the judgment and order dated 03.04.2008 passed by the
learned Sessions Judge, Gandhinagar passed in Criminal Revision
Application No.138 of 2007 in dismissing the same and confirming the
order passed by the learned Chief Judicial Magistrate, Gandhinagar in
dismissing the complaint being Inquiry Case No.61 of 2007.
2. The
loan was advanced to the petitioner in his favour by the respondents
for purchase of truck of Rs.5,50,000/-. Initially, some installments
were paid and thereafter, there were defaults in paying installments
and thereafter, there was again re-finance on the said truck and
amount of Rs.7,74,000/- was sanctioned, out of which approximately
Rs.1 lac was paid towards some installments and balance installments
were not paid. Therefore, invoking provisions of loan agreement,
possession of the truck in question was taken over by the
respondents. Some Arbitration proceedings were initiated at Chennai
as per loan agreement and even proceedings under Section 138 of the
Negotiable Instruments Act also came to be initiated. The petitioner
did not appear before the Arbitration proceedings. Truck in question
came to be sold by the respondents for Rs.5,50,000/-. Thereafter, the
petitioner filed criminal complaint before the learned Chief Judicial
Magistrate against the respondents herein for the offences punishable
under Sections 406, 420, 120B, 114 of the Indian Penal Code on
28.05.2007, which was numbered as Inquiry No.202/61/2007.
3. The
learned Chief Judicial Magistrate passed an order for inquiry under
Section 202 of the Criminal Procedure Code and thereafter, after
considering the report and holding necessary inquiry passed an order
under Section 203 of the Criminal Procedure Code on 12.10.2007
dismissing the said complaint by holding that as arbitration
proceedings were pending the complaint is pre-mature and no case is
made out. Being aggrieved and dissatisfied with the order passed by
the learned Chief Judicial Magistrate, dismissing the complaint under
Section 203 of the Criminal Procedure Code, the petitioner preferred
the Revision Application before the learned Sessions Judge,
Gandhinagar being Criminal Revision Application No.138 of 2007. The
learned Sessions Judge, Gandhinagar by impugned order dated
03.04.2008 dismissed the said Criminal Revision Application. Being
aggrieved and dissatisfied with the order passed by the learned
Revisional Court, the petitioner ? original complainant has
preferred present Special Criminal Application under Article 227 of
the Constitution of India.
4. Mr.S.K.Bagga,
learned Advocate appearing on behalf of the petitioner has submitted
that merely because arbitration proceedings were pending, the learned
trial Court ought not to have dismissed the complaint. He has relied
upon the decision of the Hon’ble Supreme Court in the case
S.N.Palanitkar and Ors. v/s. State of Bihar and Anr.
reported in AIR 2001 SC 2960. It is further submitted
that the truck in question has been sold away by the respondents for
meagre amount of Rs.5,50,000/- and therefore, the petitioner is
harassed and therefore, the learned trial Court ought to have issued
process against the respondents for the offences punishable under
Sections 406, 420, 120B, 114 of the Indian Penal Code
5. Having
heard Mr.Bagga, learned Advocate for the petitioner and considering
the orders passed by both the Courts below, this Court is satisfied
that prima-facie no case is made out against the respondents
for the offences punishable under Sections 406, 420, 120B, 114 of the
Indian Penal Code. Merely because the truck was sold by the
respondents for amount of Rs.5,50,000/-, which according to the
petitioner was on lower side, it cannot be said that the respondents
have committed any offence as alleged. The respondents took the
possession of the vehicle on which there was finance and on
non-payment of installments. Thereafter, truck has been sold
considering clauses in loan agreement. Therefore, considering above,
it cannot be said that any offence has been committed by the
respondents. Under the circumstances, it cannot be said that both the
Courts below have committed any error in dismissing the said
complaint. There are concurrent findings given by both the Courts
below, which in the facts and circumstances of the case do not call
for interference of this Court in exercise of powers under Article
227 of the Constitution of India. Hence, present present Special
Criminal Application deserves to be dismissed and accordingly it is
dismissed.
[M.R.Shah,J.]
satish
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