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Jammu & Kashmir High Court - Srinagar Bench

Showkat Ahmad Dar vs Ghulam Mohammad Dangroo. on 7 December, 2017

Author: Ali Mohammad Magrey

Bench: Ali Mohammad Magrey

  HIGH COURT OF JAMMU AND KASHMIR
                                   AT SRINAGAR


561-A Cr. P. C. no.130/2015       Date of decision: 07.12.2017
MP no.01/2015; and
561-A Cr. P. C. no.131/2015 & MP no.01/2015

Showkat Ahmad Dar                   v.            Ghulam Mohammad Dangroo.

Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Appearance:
For Petitioner:             Mr. M. M. Iqbal, Advocate.
For Respondent:        Mr. Syed Manzoor, Advocate.

__________________________________________________

i) Whether approved for reporting in law journal : YES

ii) Whether approved for reporting in press : YES These are two petitions filed by one and the same petitioner, invoking the inherent power of the Court under Section 561-A Cr. P. C. In first of the two petitions, viz. 561-A Cr. P. C. no.130/2015, the petitioner is seeking to set aside order dated 27.04.2015 whereby the learned 1st Additional Sessions Judge, Srinagar, partly allowing a Criminal Revision, set aside the orders dated 12.11.2014 and 31.12.2015 of the learned Judicial Magistrate, 1st Class (3rd Addl. Munsiff), Srinagar, to the extent directions had been issued thereby for seizure of vehicle bearing Registration no.JK04B-7444. In the second petition, the petitioner is seeking quashing of the proceedings initiated by the respondent herein and pending before the learned Judicial Magistrate (Sub-Registrar), Srinagar, under Section 138 read with Section 142 of Negotiable Instruments Act, 1881.

2. So far as the petition no.130/2015 is concerned, the facts, in brief, may be narrated. The petitioner filed a criminal complaint alleging that while he was driving his car, bearing registration no.JK04B-7444, he was kidnapped by the respondent with the aid and assistance of some unidentified persons from Lal Chowk, and was taken to some unknown place where he was kept confined for several days. He alleged that, while being in confinement, the respondent alongwith his associates made him to sign some cheques of his cheque book which was illegally snatched away by the respondent from his possession which was lying in the Car, as also some documents. Thereafter, the respondent and his associates boarded him in the car and threw him at Lal Chowk during late hours and fled away alongwith the car. According to the petitioner, though he approached the Police concerned for lodging of FIR against the accused but the Police asked him to approach the court. The petitioner, accordingly, filed the aforesaid complaint against the respondent under Sections 365, 323, 341, 386 and 506 RPC.

3. The learned Judicial Magistrate, 1st Class (3rd Addl. Munsiff), Srinagar, postponed the issue of process and directed an investigation to be made by SHO Police Station concerned. On receipt of report of Police Chowki, Nehru Park, and after going through it, the learned Judicial Magistrate, recorded its opinion that there exist sufficient grounds for proceeding against the alleged accused for the commission of offences under Sections 341, 385 and 506 RPC took cognizance of the said offences and directed issue of process against the respondent. By the same order, the learned Judicial Magistrate ordered that "in the meantime Incharge Police Post Nehru Park is directed to seize the vehicle bearing registration No.JK04B-7444 till further orders". Similar 561-A CR.P.C NO. 130/2015 2 directed was repeated on 31.12.2014 directing the SDPO concerned to seize the vehicle as and when it was traced.

4. The respondent challenged the aforesaid two orders dated 12.11.2014 and 31.12.2015 in a revision petition filed by him on 03.01.2015 before the learned Additional Sessions Judge, Srinagar. The learned Additional Sessions Jude, by its order dated 27.04.2015, held that the trial court has rightly issued summons against the accused. So far as the direction issued by the trial court for seizure of the motor vehicle is concerned, the learned Addl. Sessions Judge set aside the same, holding that the said direction is not covered by any provision of the Code. The petitioner has challenged the aforesaid order of the learned 1st Addl. Sessions Judge, Srinagar, in 561-A Cr. P. C. no.130/2015 mainly on the ground that the order has caused miscarriage of justice.

5. So far as the second petition, 561-A Cr. P. C. no.131/2015, is concerned, the facts of the case are that the respondent has filed a complaint against the petitioner herein under Section 138 read with Section 142 of Negotiable Instruments Act, 1881 alleging therein that in the year 2011 the petitioner herein alongwith his father approached and persuaded him that the petitioner's father, being an influential person, would arrange jobs for the respondent's near and dear ones and would also provide a Gas License to him against payment. He alleged that in this connection, he paid an amount of Rs.13,54,000/- to the petitioner. However, neither any job was provided nor the Gas License. According to the respondent, later the petitioner agreed to return the amount to him. In this connection, it is stated that the petitioner sold his vehicle bearing registration no.JK04-7444 for Rs.3,20,000/0 to the respondent 561-A CR.P.C NO. 130/2015 3 and documents for sale, including power of attorney, were executed by him in District Court complex at Budgam. The petitioner also issued post-dated cheques of Rs.50,000/- each dawn from A/C no.CD 2694 of J&K Bank, Branch University Campus, Hazratbal, Srinagar. It is alleged that when the cheques were presented before the said Bank, same were returned to him with memo dated 17.02.2015 with the remark funds insufficient and account inactive. The respondent issued notice dated 04.03.2015 through registered post demanding payment of Rs.8.45 lacs, but he did not pay the amount to him.

6. The case of the petitioner is that these cheques were snatched from him by the respondent alongwith the vehicle when he was kidnapped, therefore, if the petitioner is forced to stand trial in the case, it is likely to amount to abuse of the process of the court and that there would be miscarriage of justice.

7. Having heard the learned counsels and on consideration of the matter, I am of the view that so far as the second petition is concerned, it is wholly unnecessary and not maintainable. The complaint filed by the petitioner against the respondent on the same set of facts, in which the trial Magistrate has taken cognizance of offences under Sections 341, 385 and 506 RPC, is still pending. In fact, the petitioner in his first petition, i.e., 561-A Cr. P. C. petition no.130/2015, obtained stay of proceedings in his own complaint on 23.06.2015. Once the allegations levelled by him in his criminal complaint, which have been made basis for invoking the inherent power in his second petition, are still under trial, not determined and proved yet, it is not comprehendible how come this Court can draw a conclusion that proceedings in the complaint filed by the respondent under Section 138 read with Section 142 of NI Act would 561-A CR.P.C NO. 130/2015 4 amount to abuse of process of any court. This Court in these proceedings will not and has no mechanism to determine the veracity of the allegations levelled by the petitioner against the respondent. The situation might have been different if the petitioner had proved the allegations levelled by him in his criminal complaint against the respondent. The second petition, therefore, is wholly unnecessary and not maintainable. It is, therefore, liable to be dismissed.

8. So far as the first petition is concerned, I am of the view that the learned 1st Additional Sessions Judge has not committed any illegality while holding that the trial Magistrate had no power to direct the Police or SDPO concerned by an interim order to seize the motor vehicle. The learned 1st Addl. Sessions Judge, in the impugned order, has recorded as under:

"The jurisdiction of a Judicial Magistrate (...) to direct the seizure of the property movable or immovable is limited and the Code of Criminal Procedure (...) has specifically prescribed so. Such instances can be enumerated. Section 88 of the Code empowers the JMIC to attach the property both movable or immovable of the person absconding. Section 94 of the Code empowers it to issue summons for the production of document or other thing to the person in whose possession or power such document or thing is believed to be. Similarly, Section 96 of the Code empowers to issue search warrant in continuation to Section 94 of the Code. Section 98 of the Code empowers to issue warrant for the search of the house suspected to contain stolen property, forged document etc. and its production before the Magistrate. Section 146 of the Code empowers for the attachment of subject matter of dispute. Section 386 of the Code envisages for the issuance of the warrant for the levy of the amount by attachment. Section 516-A to Section 525 of the Code envisage for the power to make order for the disposal of property during enquiry, trial or investigation.

It is apt to note that the property directed to be seized by the Police as reveals from the impugned order was not in the 561-A CR.P.C NO. 130/2015 5 custody of the police. The trial court has issued a direction for its seizure. The impugned order for the seizure of the property is not covered by any of the provisions enumerated above. Ld. Counsel for the petitioner could not point out any provision of law which may vest the jurisdiction to the JMICV to issue such a direction. The police at the stage of investigation of the case in terms of Section 202 of the Code was well within its powers to seizure the property but it did not seize it. Had it been seized by the police, the position would have been otherwise and the Magistrate would have been within its jurisdiction to issue direction to the Police for its production in the court."

Though the order so passed by the learned 1st Addl. Sessions Judge has been challenged in this petition, but there is not even a jot or tittle of ground mentioned in the petition how the aforesaid finding of the court, which is wholly based on the law, as it is, is wrong. During the course of hearing of this case also nothing at all, muchless substantial, was brought to the notice of this Court as would compell or convince it to invoke its inherent powers under Section 561-A Cr. P. C.

9. During the course of arguments, learned counsel on both sides cited certain judgments which, unfortunately, are wholly not related to the point in issue. For instance, the learned counsel for the petitioner cited and relied upon the decision of the Court in Mansoor Ahmad Wani v State of J&K, 2010(4) JKJ 262 [HC], for the proposition that the court should not entrust the vehicle on interim custody to a person who is alleged to have stolen the same and the Sessions Judge has no jurisdiction to release the movable property in favour of any person during investigation, as he lacks jurisdiction. This is neither the case here not the point in issue. Similarly, the learned counsel for the respondent has relied upon the judgment of the Court in Javeed Ahmad Shah v. Parveena Banoo, AIR 2010 J&K 132. Therein the Court has said that, in practice, the sale of a vehicle is affected by delivery of the vehicle to 561-A CR.P.C NO. 130/2015 6 the transferee and the sale is evidenced by either receipt of the sale price or a power of attorney or affidavit sworn in by the transferor and transferee. In that context, the Court has held that it is for the registered owner to prove convincingly during trial of a claim petition that co- respondent in the claim petition was liable to pay compensation because of his having acquired ownership of the vehicle. The judgment, obviously, is irrelevant to the point in issue. Then there is yet another judgment in G. Govindan v New India Assurance Co. Ltd., AIR 1999 SC 1398, cited and relied upon to canvass that registration of a vehicle in the name of a transferee is not necessary tod pass title in the vehicle. The judgment, again, is not relevant to the point involved.

10. The point, in context of the order impugned as passed by the learned 1st Additional Sessions Judge, was and is: whether the learned Judicial Magistrate had the power or jurisdiction to issue a direction to the Police to seize the vehicle post issuance of process by him after considering the investigation report of the Police? The law is settled that the object of the provisions of Section 202 Cr. P. C. is only to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the perusal of the complaint and the consideration of the complainant's evidence on oath. What the Magistrate has to see is whether there is evidence in support of the allegations of the complainant. As stated in sub-Section (1) of Section 202 Cr. P. C., the object of the enquiry is to ascertain the truth or falsehood of the complaint, and the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the 561-A CR.P.C NO. 130/2015 7 statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant. Obviously, Section 202 Cr. P. C. does not empower the Magistrate to issue a direction to the Police to investigate a matter in a particular manner or to seize a particular property.

11. Last, but not the least, there is also a civil litigation going on between the parties at the instance of the respondent who, as per his learned counsel, has filed a suit for mandatory injunction against the petitioner in the Court of Additional District Judge, Srinagar, based on, inter alia, the agreement to sell stated to have been executed by the petitioner in favour of the respondent vis-a-vis the vehicle in question.

12. In light of the above, I do not see any ground available to the petitioner, or made out by him, to invoke the inherent power of the Court under Section 561-A Cr. P. C. either to quash the proceedings in the complaint filed by respondent under Section 138 and 142 of NI Act or to interfere with the order impugned in the petition.

13. These two petitions are, therefore, dismissed as being unnecessary and without any merit. Interim directions, if any, subsisting shall stand vacated. The trial Magistrates concerned shall proceed ahead with the trial of the complaints in question and decide the same in accordance with law.

14. Registry is directed to send copies of this order to the courts below for information.

(Ali Mohammad Magrey) Judge Srinagar, 07.12.2017 Syed Ayaz, Secretary.