Luis De Piedade Lobo v. Mahadev Vishwanath Parulekar And Another

1. This revision application is directed against the order dated 19th February, 1983 passed by the learned Judicial Magistrate, First Class, Bicholim, whereby he discharged respondent 1 under Section 245(2), Cr.P.C.

2. Petitioner herein has filed a criminal complaint against respondent 1 charging him of having committed an offence of theft punishable under Section 379, I.P.C. According to the complainant, he is the owner in possession of two Mercedez Benz trucks bearing Nos. GDT-7045 and GDT-7046. A few years back, there existed a partnership running under the name and style of M/s. L. & P. Associate between the complainant and the accused. The trucks aforementioned were part of the assets of the firm and, as such, stand registered in the name of the partnership. After some time, the accused/respondent withdrew himself from the said partnership firm and the same was dissolved. Since the time of the withdrawal of the accused from the partnership, the complainant has been running the business exclusively and the accused/respondent is in no way connected with it. The complainant, therefore, sent a notice to the accused requiring him to give his consent to the transfer of the said trucks to his name but the accused neither gave a reply nor his consent and, as such, the complainant was compelled to file a Civil Suit, being the Civil Suit No. 1/76 for declaration that the aforesaid trucks and some other trucks which are registered in the name of the partnership firm belong to him. On 21st April, 1976, at about 8.00 p.m., much after the filing of the aforesaid suit, respondent went in an Ambassador Car to Dignom along with six other persons and forcibly stopped the truck No. GDT-7046 by blocking the road and took the same vehicle away. Thereafter, he went along with the same persons to Sonshi and took away the truck No. GDT-7045 which was parked in the said locality. The learned Magistrate issued process against the respondent for offences punishable under Section 379, I.P.C., and thereafter on 30th September, 1978, an application was filed on behalf of the accused praying that he may be discharged since the complainant himself was not sure about his right over the trucks. He further contended in the said application that the trucks are the subject matter of the aforesaid suit and continued to be a partnership asset, which partnership still subsists and has not been dissolved. The learned Magistrate, however, by his Order dated 16th January, 1979, dismissed the application on the grounds that even, if the partnership had not been dissolved, it was not possible at that stage to hold that no theft had been committed, for a partner may commit theft of a partnership asset. The respondent, being aggrieved, preferred a revision application to the Judicial Commissioners Court and the same was allowed by judgment dated 25th September, 1979. The learned Additional Judicial Commissioner, while allowing the revision application, remanded the case to the trial Court for being decided afresh in the light of the observations made by him. Pursuant to this Order of remand, the learned J.M. F.C., Bicholim disposed of the matter by the impugned Order dated 19th February, 1983.

3. Mr. M. S. Usgaoncar, learned counsel appearing for the petitioner, has at the outset, contended that the impugned order is not maintainable since the learned Magistrate did not comply with the provisions of Section 244, Cr.P.C., under which he was bound to hear the prosecution and take all such evidence as might have been produced in support of the complainants case. The learned Magistrate indeed did not give any chance to the complainant to lead evidence in support of his case and straightway discharged the accused under Section 245(2), Cr.P.C., on points of law alone. It was, however, argued by Mr. S. V. Joshi, learned counsel appearing for respondent 1, that no irregularity has been committed by the learned Magistrate by exercising the powers vested in him under Section 245(2). Cr.P.C. In fact, the aforesaid sub-section (2) provides that nothing in the section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. The learned Magistrate, he further submitted, discussed in the impugned order the case of the complainant/petitioner herein and, having arrived at the finding that the charge made was groundless, correctly discharged the petitioner.

4. Section 244, Cr.P.C., provides that when in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Section 245(1), in its turn, provides that if upon taking of evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. And sub-section (2) of Section 245 prescribes that nothing in the Section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. It has been argued by Mr. Usgaoncar that since the provision of Section 244 is mandatory and since sub-section (2) of Section 245 empowers the Magistrate to discharge the accused at any previous stage of the case, the discrepancy that appears to exist between the two provisions of law had to be conciliated in a harmonious construction of both. Such harmonious construction is arrived at by interpreting sub-section (2) of Section 245 as meaning that if, after recording some evidence under Section 244, the Magistrate finds that the charge made is clearly groundless, he can then pass an order discharging the accused. This has to be so, according to the learned counsel, because Section 204, Cr.P.C., provides that process can be issued by the Magistrate only if, in his opinion, there is sufficient ground for proceeding. Therefore according to Mr. Usgaoncar, if process is issued, it means that the magistrate had already satisfied himself that the complaint was not or did not appear to be, at the stage of its filing and of the inquiry held under Section 200, Cr.P.C., groundless. Reliance was placed in support of this contention in the decision of this Court in the case of Shah Jethalal Lalji v. Khimji M. Bhujpuria : (1974)76BOMLR270 .

5. It is no doubt true that Section 244, Cr.P.C., makes it incumbent upon the Magistrate to take all such evidence as is produced in support of the prosecution at the stage of the inquiry. It is also true that sub-section (1) of Section 245, requires, for an order of discharge be made, the taking of the evidence referred to in Section 244. Therefore, it may appear that the submissions of Mr. Usgaoncar are correct. And it is so to some extent. In fact sub-section (2) of Section 245, specifically provides that nothing in the section i.e., in sub-section (1), shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. The expression "at any previous stage of the case", occurring in sub-section (2) of Section 245, unmistakenly and undoubtedly shows that even before recording of the evidence referred to in Section 244, the Magistrate can discharge the accused if he considers, for reasons to be recorded, the charge to be groundless. In other words, the provision of sub-section (2) of Section 245 embodies an exception to the general rule laid down in Sections 244 and 245(1), Cr.P.C. I am fortified in this view by the decision of the Himachal Pradesh High Court in the case of Gopal Chauhan v. Smt. Satya , wherein it has been observed that sub-section (2) follows sub-section (1) of Section 245 which speaks about the discharge of the accused on consideration of the evidence recorded under Section 244, and that the language of sub-section (2) of Section 245, clearly indicates a situation where the accused is required to be discharged even before the evidence is recorded. Similar view has been taken by the Supreme Court, though in respect of Sections 252 and 253 of the old Cr.P.C. In fact, in the case of Cricket Association of Bengal v. State of West Bengal. : 1971CriLJ1432 , the Supreme Court observed that sub-section (1) of Section 253 of the old Cr.P.C., deals with the discharge of an accused when the Magistrate, after taking of evidence referred in Section 252, Cr.P.C., and after making such examination of the accused, if any, as may be found necessary, finds that no case against the accused has been made out, which if unrebutted would warrant his conviction, whereas sub-section (2) of Section 253 provides that the Magistrate could discharge the accused at any previous stage of the case if he considers the charge to be groundless, irrespective of the provisions of sub-section (1) of Section 253. Then, the Court held that sub-section (2) of Section 253 gives ample jurisdiction to the Magistrate to discharge an accused in the circumstances mentioned therein and that an order of discharge can be passed at any previous stage of the case. It may be pointed out here that Sections 252 and 253 of the old Cr.P.C. correspond to Sections 244 and 245 of the present Cr.P.C., and the wording of the said Sections 252 and 253 and of the new Sections 244 and 245 is the same. This being so, it is manifest and clear that the above observation of the Supreme Court, though made in respect of Sections 252 and 253 of the old Cr.P.C., fully apply to the provisions of Sections 244 and 245 of the Code of Criminal Procedure, 1973 i.e., to the present Cr.P.C. It may appear that a different view was taken in the case of Shah Jethalal Lalji v. Khimji M. Bhujpuria (above), for Joshi, J. held in that case that, after having taken cognizance and issued the process, it is incumbent upon the Magistrate to record the evidence of the complainant and of all such witnesses as he may like to examine or some of them before resorting to Section 253(2), Cr.P.C. 1898, and dismissing the complaint and discharging the accused. He further observed that reading Sections 252 and 253(2) of the old Cr.P.C., the phrase "at any previous stage of the case" in Section 253(2) of the Code, has a bearing upon the duty of the Magistrate to take all evidence and it is in juxtaposition of that duty that section 253(2) empowers the Magistrate to discharge the accused at any previous stage of the case. Though this view taken by Joshi, J. appears to strike a note, contrary to the view taken by the Supreme Court in the aforesaid case of the Cricket Association of Bengal v. The State of West Bengal, on a close scrutiny, it is however clear that there is no contradiction and the apparent discrepancy does not exist, for actually what was held in the case of Shah Jethalal Lalji v. Khimji M. Bhujpuria is entirely in consonance with the aforesaid ruling of the Supreme Court. I say so because the aspect dealt with by Joshi, J. did not fall for consideration of the Supreme Court in the aforesaid case and the Court confined itself to make it clear that in spite of the provision of Section 252 of the old Cr.P.C. which was making it compulsory to the Magistrate to record such evidence that was being produced in support of the prosecution, sub-section (2) of Section 253 was empowering the Magistrate to discharge the accused at any earlier stage if such Magistrate considered, for reasons to be recorded, the charge to be groundless, even without recording all the evidence that was being produced. In the case of Shah Jethalal Lalji v. Khimji M. Bhujpuria, the view taken by the learned Judge was on a slightly different point and the observations made were to the effect that, if process has been issued, then it is incumbent upon the Magistrate to record at least some evidence before discharging the accused under Section 253(2). Not only this view is not contradictory to the view taken by the Supreme Court but also, on the contrary, reiterates and follows it inasmuch as it reaffirms that a Magistrate acting under Section 253(2) of the old Cr.P.C., is not bound to record all the evidence being produced. It only clarifies that, in the event process was issued, such power of the Magistrate, generally as a rule, is not unfettered, since Section 204, Cr.P.C., prescribes that process may be issued by the Magistrate only if he is of the opinion that there is sufficient ground for proceeding. This, in my view, is generally correct, for if the Magistrate himself was of the opinion that there were grounds for proceeding, it follows that he was satisfied, at the stage of issuing process, that the complaint was not groundless. Consequently, it follows also that some kind of additional evidence would be required to make him change his prior opinion that there were grounds for issuing the process and that the complaint was not groundless. This is, as I already observed, generally correct. But a case may arise where the Magistrate per incuriam issues process and in such a case, the Magistrate undoubtedly can exercise the powers conferred by Section 253(2), Cr.P.C., without recording any evidence. Thus, though the contention of Mr. Usgaoncar cannot be accepted at its full logical end, that evidence has always to be recorded, nevertheless is send to the extent that each case has to be looked into in the light of its circumstances and, except in a case when process was issued per incuriam, at least, some additional evidence has to be brought on record so as to enable the Magistrate to act on the exercise of the powers vested in him by Section 253(2), Cr.P.C. and discharge an accused, after process was issued against him.

6. The next contention of Mr. Usgaoncar has been that, in any event, the facts and the circumstances of the case are such that the learned Magistrate had not before him all the material and necessary data as to justify an order of discharge. In fact, the impugned order makes it abundantly clear that the learned Magistrate was bound to examine the evidence before arriving at any finding. In fact, in para 7 of the impugned order, the learned Magistrate observed that the complainant had failed to convince him that clause (7) of the deed of partnership had been complied with and that accounts of the firm have been settled and that the accused had been paid of the value of his share. The learned Magistrate has also observed that the complainant had not shown or produced any document as to prove that the partnership firm had been dissolved or that the accounts had been settled and that, therefore, the partnership property belongs to the complainant. Mr. Usgaoncar placing reliance in the rulings of the Rajasthan High Court in the case of Mangilal v. Bhanwarlal, and of the Patna High Court in the case of Kaniran Ganpatrai v. Commr. of Income Tax, : [1953]23ITR314(Patna) , urged that the learned Magistrate acted under the wrong assumption that a dissolution of the partnership and a settlement of accounts can be proved only by documentary evidence, when it is not compulsory to prove such dissolution only by documentary evidence and it is open to the complainant to prove it by other means, including oral evidence. The learned counsel further submitted that though the trucks stand registered in the name of the partnership firm, the fact remains that this happened as a result of the conduct of the respondent himself. Actually, the partnership had been dissolved and a written agreement had been arrived at. This written agreement is, however, in possession of the respondent and the respondent had not been complying with the terms of that agreement and has been apparently unwilling to give his consent for the transfer of the trucks to the name of the petitioner. Petitioner, therefore, had been compelled to file a suit to get a declaration that the trucks, which are registered in the name of the partnership, be transferred to his name and declared to belong to him. Petitioner has specifically averred in the suit that the truck business was a partnership concern and that the said partnership had been de facto dissolved at the end of March, 1970 and that an agreement of dissolution has been executed on 22-8-1982, having been duly signed by the parties and witnesses. It has been further averred that, according to the dissolution of the partnership agreement, the business of the partnership was to be carried on by the petitioner alone as his own business and that the interest of the respondent was to get only an amount of Rs. 19,000/-. Mr. Usgaoncar submitted that, in view of the above allegations, the learned trial Magistrate was bound to allow the petitioner to lead evidence to establish that the partnership that had existed between the petitioner and the respondent had been dissolved in the terms mentioned by the complainant. Further, the learned Magistrate was bound to allow the complainant to lead evidence to show that there was at least, a prima facie case warranting the inference that respondent had dishonest intention when he took away the aforesaid two trucks. Mr. Joshi contended, however, that what was averred in the Civil Suit by the petitioner cannot be used in a Criminal Case and in any event, it goes to show that a bona fide dispute exists between the parties and as a result, the learned Magistrate was fully justified to pass the impugned order.

7. There is a lot of substance in the submissions made by Mr. Usgaoncar. In fact, it is apparent from the impugned order that the learned Magistrate held the view that dissolution of the partnership and the settling of the accounts could be proved only by way of documentary evidence and since the petitioner has failed to adduce such kind of evidence, the respondent was entitled to an order of discharge under Section 253(2), Cr.P.C. However, the learned Magistrate, first of all, appears to have failed to appreciate that, under Section 253(2), Cr.P.C., he was entitled to pass an order of discharge only if, in his opinion, the charge was groundless. Now, to arrive at such a finding, specially when the records impliedly show, since process has been issued, that he had been satisfied that the complaint was not frivolous, the learned Magistrate was bound to have some new material before him to warrant his change of opinion and to support the conclusion that the complaint is groundless. The mere fact that no documentary evidence had been adduced to prove the dissolution of the partnership and the settlement of accounts is not a sufficient and sound reason to conclude that actually no dissolution of the partnership has taken place and that no settlement of accounts was arrived at. As correctly observed, in the aforesaid cases of Kaniram Ganpatrai v. Commr. of Income Tax and Mangilal v. Bhanwarlal, it is not necessary to prove the dissolution of a partnership by way of documentary evidence only, for dissolution may be proved by other kind of evidence, including by the context of the circumstances of each case, if such circumstances unequivocally and unmistakenly lead to the inference that dissolution of a partnership has taken place. This being the case, obviously the learned Magistrate has committed a material error of law and a substantial mistake by holding the view that the dissolution of partnership and the settlement of accounts had to be proved only by documentary evidence and, therefore, in the absence of such evidence, the trucks were an asset of the partnership firm. It was his duty, however, in the circumstances of the case, to give a chance to the petitioner to adduce the evidence he deemed fit to prove his allegations and, only after that, the learned Magistrate was entitled, and in consideration of such evidence, to pass an order of discharge, if he felt that the complaint was groundless, either under sub-section (1) or sub-section (2) of Section 245, Cr.P.C.

8. It becomes thus clear that a material irregularity has been committed by the learned Magistrate while passing the impugned order and, therefore, the same cannot be allowed to stand. The learned Magistrate ought to have, in the circumstances of the case, held an inquiry, allowing the petitioner to lead such evidence, as desired by him, to prove the dissolution of the partnership and the settlement of accounts. Naturally, if the Magistrate, at any stage thereafter, was of the opinion that the case was groundless, then he would have been free to pass the appropriate order. But definitely to discharge the accused/respondent in the manner he did, without giving an opportunity to the petitioner to establish his case, was erroneous.

9. In the result, this revision application succeeds and as such, the impugned order is set aside and the case is remanded to the lower Court to be disposed of in the light of the observations made above.

10. Order accordingly.