Court No. - 44
Case :- APPLICATION U/S 482 No. - 27273 of 2018 Applicant :- Smt. Saroj Pathak And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Devendra Kumar Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Devendra Kumar, learned counsel for the applicants and the learned A.G.A. for the State.
At the very outset, learned counsel for the applicant submits that he be permitted to amend the prayer clause of the present application by seeking a challenge to the summoning order dated 30.04.2018 as due to inadvertence, the challenge to the same could not be made.
Prayer made for is bonafide. Accordingly the same is allowed.
Let necessary corrections be made in the prayer clause of the present application during the course of the day.
This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 30.04.2018 passed by the Additional Chief Judicial Magistrate, Court No. 4, Agra in Complaint Case No. 9848 of 2017 Now 2407 of 2017 (Islam Khan Vs. Smt. Saroj) under Section 406 I.P.C., Police Station- Shahganj, District-Agra as well as the entire proceedings of the above mentioned complaint case.
The learned counsel for the applicants submits that the summoning of the present applicants under Section 406 I.P.C. is manifestly illegal as no entrustment was made by the applicants in favour of the opposite party no.2 regarding any property. He further submits that the dispute between the parties is in respect of a vehicle bearing no. U.P. 80AU 9200, which was registered in the name of the applicant no.1, namely, Smt. Saroj Pathak. The said vehicle was sold to the complainant, opposite party no.2 by means of a sale letter. However, subsequent to the aforesaid transfer, the change in the registration of the aforesaid vehicle was not undertaken by the complainant, opposite party no.2 as required under the provisions of Motor Vehicles Act 1988. As a consequence of the aforesaid, the registration of the vehicle continues to be in the name of the applicant no.1. The aforesaid vehicle was challaned by the police and since the applicant no.1 continues to be the registered owner of the vehicle, the same was released in her favour. Without getting the registration of the said vehicle transferred, the opposite party no.2 wants to retain the possession and use of the said vehicle, which in the submission of the learned counsel for the applicant is not permissible as in that situation any tortious liability arising on account of the use of the said vehicle which fall upon the applicant no.1 being the registered owner.
In the aforesaid circumstances, it is urged that the present criminal proceedings initiated by the opposite party no.2 are wholly malicious and therefore, liable to be quashed by this Court.
Having heard the learned counsel for the applicants, learned A.G.A. for the State and upon perusal of the material brought on record, the matter requires consideration.
Notice on behalf of opposite party no.1 has been accepted by the learned A.G.A.
Issue notice to the opposite party no. 2 calling upon him to file a counter affidavit.
All the respondents may file their respective counter affidavits on or before the date fixed in the notice.
List on the date fixed in the notice.
Till the next date of listing, further proceedings of the above mentioned complaint case, shall remain stayed.
Order Date :- 21.8.2018 YK