Criminal Application No. 472 of 1989

19th December, 1995

Petitioner Counsel: Mr. SHAMRAO SAMANT and Miss POONAM MARIA

Cases Cited:
1910 Cr. L. J.248 [Para 8]
(1926) Cri. L. J. 1028 [Para 8]
AIR 1965 Sc 585 [Para 8]
AIR 1992 SC 604 [Para 5]

JUDGMENT

JUDGMENT : This is a petition to quash the proceedings in Criminal Case No. 841/P/86, on the file of Metropolitan Magistrate, 21st Court, Vikhroli, Bombay. Heard the learned Counsel for the petitioners and the learned A.P.P. for third respondent. None appeared for respondents 1 and 2.

2. The petitioners have been prosecuted by the police on the complaint of the respondent No.1 for offences under Sections 452, 458, 457 and 380 I.P.C. Being aggrieved by the issue of process, the accused have approached this Court.

3. The prosecution case is as follows :-

The Accused are doing business in manufacture of wooden seats, back frames, and handles of chairs,They were giving the labour contract to many persons including the complainant. The work of the complainant was to do polishing and to do the cane work on the furniture. Then the accused would pay him the labour charges for the same. It appears the accused had given certain furniture to the complainant for the said purpose and he had not returned the same. It is the prosecution case that on 7/7/1986 at about 4.30 p.m. the accused went to the shop of the complainant who was not present at that time. His son and some labourers were present. It is alleged that the accused persons assaulted the labourers and removed the furniture available in the premises in a tempo and also took away the cash of Rs. 5,000/- from the drawer.

The son, respondent No. 2, who was present went and gave a complaint to the police who treated it as a non congizable offence. Then during the midnight at 00.45 hrs. the complainant who came to know of the incident from his son lodged a First Information Report. The Ghatkopar Police Station registered a case in C.R.No.516/86 for an offence under Section 394 I.P.C. Number of witnesses were examined during the course of investigation. After investigation a chargesheet was filed for the offences mentioned above.

4. The learned Counsel for the petitioners contended that this is a case, where according to the allegations, the accused have removed their goods which they had given to the complainant for polishing etc and hence there is no question of theft. It was argued that from the statements of the witnesses and the allegations in the FIR no criminal offence was made out and hence the prosecution was liable to be quashed. On the other hand, the learned public Prosecutor contended that the materials on record do disclose offences mentioned in the chargesheet and at this stage the Court cannot go into the merits of the case and therefore, the petition may be dismissed.

5. The learned Public prosecutor invited my attention to a case reported in AIR 1992 SC 604 (State of Haryana V/s Bhajan Lal) wherein it is observed that FIR can be quashed in exceptional cases only when the allegations in the FIR do not make out any criminal offence. There is no dispute about this proposition of law. The question is whether on facts in the present case any criminal offecne is made out or not ? The complaint is lodged by the father where no doubt he has alleged that the accused person had entered his shop forcibly and removed the furniture by assaulting the labourers and they had also removed cash of 5,000/-. These allegations do show prima facie certain offences are alleged to have been committed by the accused. But we find that the complaint is lodged not by an eye witness. Hence we cannot accept the allegations in the complaint since the complainant himself has no personal knowledge about the allegations and he has mentioned them as was told to him by others. Therefore, we find that the complainant's version in the complaint is hearsay. Hence we cannot act on the allegations in the complaint when the complainant has no personal knowledge about the several allegations.

6. The best person who can enlighten the Court about the incident is no other than the son of the complainant, Dinesh Kumar. He was very much present in the shop when the accused came to take away the goods. His statement recorded by the police shows that on 7/7/1986 the accused came to his shop at about 4.30 p.m. and wanted to take away their goods. Then he told them to wait till his father comes. When the accused said that they want to take the goods and then itself one of them went to bring a tempo. Then the witness Dinesh went to the police and lodged a non-congnizable complaint. This is all we can get from the statement of Dinesh Kumar. He does not speak about any assault on the labourers. He does not speak about removal of cash.

7. Then we have the statements of two-three eye witnesses. One Isarat Husain was one of the labourer who was present in the shop. He no doubt says that one of the accused pushed him and threatened him and took the goods. At that time Dinesh Kumar, the son of the complainant, immediately rushed to inform his father. Therefore, his statement clearly shows that Dinesh Kumar was very much present throughout the incident including the assault on the witness. We have already seen that Dinesh Kumar does not refer to any incident of assault at all.

Then we have the statements of the Rajenprasad who is also a worker in the shop of the complainant. He says that many people had come including some of the accused. That when the accused wanted to take away the goods, he told them that they cannot remove it till the complainant comes. Then he says that he went to inform the complainant about the accused coming there to take the goods. By the time he came he found that the accused had already left the place along with the furniture. Though this witness is said to be an eye witness in the entire incident, he does not speak about the incident of assault on the previous witnesses or removal of cash etc.

Then witness Shampyae Sutar is the driver of the tempo and his evidence is in favour of the accused and does not throw any light on the two aspects viz. assault on the labourers or removal of cash.

Shankar is another tempo driver and his evidence also supports the defence version.

It is, therefore seen that statements of eye witnesses are discrepant and conflicting with each other. The statement of the most important witnesses viz. Dinesh Kumar, the son of the complainant, rules out of there being any assault on the labourers or removal of cash.

In the face of conflicting and contradicting material, it will be waste of public time and money to allow the prosecution to its logical end.

8. The learned Counsel for the petitioners invited my attention to some decisions viz.1910 Cri.L.J.Reports 248 (Calcutta) (Dhirendra Mohan Gossain V/s Emperor) 27(1926)Cri.L.J.1028 (Lahore) (Ismail V/s Emperor) and AIR 1965 S.C.585 (Chandi Kumar Das Karmarkar V/s Abanidhar Roy), where it has been pointed out the removal of goods or property in assertion of bonafide right does not amount to criminal offence of theft. In my view, these decisions are directly applicable to the facts of the present case.

Here is a case where the accused who had given their furniture for polishing to the complainant have taken away their goods. It has been done in the assertion of their bonafide right. We cannot impute any criminal intention on the part of the accused. I, therefore, feel that the materials on record do not make out criminal offence as alleged in the chargesheet and it will be sheer abuse of process of the court if the case is allowed to continue. The case pertains to 1986. Now nine years have elapsed. The dispute appears to be of a civil nature where the labour contractor has not been paid charges by the accused. In fact, the learned Counsel for the petitioner brought to my notice that the petitioners filed a suit against the complainant and obtained a decree. Therefore, it is purely a case of civil dispute and should not be allowed to be agitated in a criminal Court.

9. In the result, the petition is allowed. Criminal proceedings in Criminal case No.841/P/86 are hereby quashed. However this order is without prejudice to the rights of the complainant to recover whatever amount that is due to him according to law in a civil Court.