Bhaiya Ram and Asuram vs State of Rajasthan

M.B. Sharma, J.—This is a misc. petition against the order dated August 8, 1989 of the learned Judicial Magistrate Sumerpur. Under the aforesaid order the learned Magistrate ordered framing of charges against accused-petitioner u/s 406 of the IPC.

The contention of the learned Counsel for the accused-petitioner is that even from the perusal of the complaint which was send u/s 154(3) Cr. P.C. to the SHO and one case was registered and investigation was undertaken and thereafter a chargesheet was filed, be case u/s 406, IPC can be made out against the accused-petitioner. The I.O., after investigation, had filed a charge-sheet against the accused-petitioner and two others u/s 420 and 379 IPC but the learned Magistrate, in the impugned order came to the conclusion that so far as the accused petitioner is concerned, no offence u/s 420 and 379 IPC is made out and prima facie a case u/s 406 IPC is made out. The learned Magistrate, discharged the other accused persons.

A perusal of the complaint will show that it is clear ... therein that the accused-petitioner Bhaiyaram and Asuram had jointly purchased truck No. R.N.G 1021. Thus, the complainant, even in the com-plainant admits that the petitioner and Asuram were the owners of the truck and it can, therefore, be said that the registration of the truck should have been in the name of both the persons. As per the complaint the petitioner and Asuram had given the truck to the complainant Shri Mayaram under an oral agreement that the complainant shall get the truck repaired, fix new tyres and the truck shall be plied under his management. The truck was so plied but, thereafter, the connivance of the driver Shri Vijay Singh the truck was taken by the accused-petitioner and Asuram.

In my opinion, when the petitioner here in was the joint owner of the truck, there was no question of his committing any offence of mis-appropriation u/s 406 of the Indian Penal Code. Before an offence u/s 406 can be made out if is necessary that the property should belong to other person and the concept of mis-appropriation of property by the owner thereof is align to the very concept of the section. In my opinion, no case, worth framing charge against the accused petitioner is made. The charge is groundless.

The petition is allowed, the order of the learned Magistrate dated August 8, 1988 is set aside and the accused-petitioner is discharged.