Crl.M.C. No. 3414 of 2007

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 Crl.MC.No. 3414 of 2007() ------------------------- ## PETITIONERS/ACCUSED: - ------------ ## 1. C.V. RAJARETNAKUMAR, S/O. PERUMAL NADAR, DVD COLONY, BATHERY ILLAM, AGASTHEESWARAM VILLAGE, NAGARCOVIL,KANYAKUMARI DT. 2. SOORYA, S/O. RAJARETNAKUMAR, DVD COLONY, BATHERY ILLAM,AGASTHEESWARAM VILLAGE, NAGARCOVIL,KANYAKUMARI DISTRICT. 3. SATHYA, S/O. RAJARETNAKUMAR, DVD COLONY, BATHERY ILLAM,AGASTHEESWARAM VILLAGE, NAGARCOVIL,KANYAKUMARI DISTRICT. BY ADV. SRI.BECHU KURIAN THOMAS ## RESPONDENTS/COMPLAINANT: ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. STEPHEN THOMAS, S/O.THOMAS NADAR, KIDAKUZHI PUTHEN VEEDU, KADAVATTARAM, BRAYINMOODU, NEYYATTINKARA. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB SRI.A.L.GEORGE FOR R.2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## R.BASANT, J ## ------------------------------------ ## Crl.M.C. No.3414 of 2007 ------------------------------------Dated this the 29[th] day of July, 2008 ## ORDER Petitioners are arrayed as accused 7, 8 and 9 in a crime registered alleging offences punishable, inter alia, under Sections 379 and 411 r/w 149 I.P.C. That crime-Crime No.134 of 2006 of Kanjiramkulam Police Station was registered on the basis of a private complaint filed by the 2[nd] respondent herein which was referred by the learned Magistrate to the police under Section 156 (3) Cr.P.C. Investigation commenced in that case and the Investigating Officer filed a final report before the learned Magistrate to inform the learned Magistrate that the case is a false one that it was a case of seizure of the vehicle by the finance company consequent to default in payment of the amount due and that the case can be closed. 2. After submission of that report, there was a direction by the Superintendent of Police, Trivandrum (Rural) to the Assistant Superintendent of Police to conduct a further investigation. Accordingly further investigation is in progress. The petitioners have come before this Court, in these circumstances, to request the Court to invoke the powers under Section 482 Cr.P.C to quash the crime. It is contended that the Crl.M.C. No.3414 of 2007 2 defacto complainant ie. The 2[nd] respondent herein is guilty of gross distortion and suppression of facts. The police have been prevailed upon with totally false and untenable allegations to initiate and continue the vexatious criminal proceedings against the petitioners. 3. Certain fundamental facts seem to be admitted or not in dispute. I shall first refer to them. The vehicle in question is a Leyland lorry bearing Reg.No.KL 01 6791. The said vehicle originally belonged to one Raghu from whom the 2[nd] respondent had purchased the same. After purchase of the same, since the 2[nd] respondent required money, he had entered into an agreement with M/s.Anju Investments, of which the 1[st] petitioner is the agent at Nagarcoil. Petitioners 2 and 3 are the sons of the 1[st] petitioner. There admittedly was a loan advanced in favour of M/s.Anju Investments and the fact that an agreement was executed with M/s.Anju Investments is not disputed by the 2[nd] respondent now. That fact was significantly suppressed and not revealed in Annexure-A6 complaint. Annexure-A1 agreement dated 29.05.04 is produced by the petitioners as the agreement between the M/s.Anju Investments and the 2[nd] respondent herein. It is significant that the 2[nd] respondent does not dispute his signature in Annexure-A1 agreement. Annexure-A1 agreement Crl.M.C. No.3414 of 2007 3 contains the following stipulation regarding consequence of default in payment. “14. If the Hirer (a) shall make default in payment of any rent specified in the B. Schedule here to of any part thereof for seven days after the same shall become due whether the same shall have been demanded or not or (b) shall make default in payments of the insurance premium, taxes licence fees, fines, duties, registration charges, other charges, rent or outgoings © shall become insolvent or make any agreement with the creditors, or (d) shall suffer any distress or execution to be levied upon any of his property; or (e) shall fail to observe or perform any stipulation or condition contained in this Agreement and on his part to be observed and performed, than and in any such case and so often as a such event shall happen, the hiring shall immediately determine and the Owners may without notice or demand retake the possession of the Vehicle. Whether the same shall be in the possession of Hirer or of any other person and for that purpose the Owners, their Agents or their Servants may enter the premises where the vehicle shall for the time being be garaged or kept the break open, locks and doors, or other entrances for the purpose of such retaking possession of the vehicle it shall however be at the option of the Owners or reinstate this contraction such conditions as they deem fit after the determination the hiring as aforesaid.” Crl.M.C. No.3414 of 2007 4 4. It is the case of the petitioners that the 2[nd] respondent had committed default in making payment of the amounts due under Annexure-A1. The 2[nd] respondent does not also specifically deny the fact that there was default in payment of the amounts due under Annexure-A1 though he contends that M/s.Anju Investments/the petitioners have not given due credit to all amounts paid by him under Annexure-A1 agreement. Be that as it may, the 2[nd] respondent came to court with Annexure-A6 private complaint dated 07.06.06 and it is on the basis of the said complaint referred to the police under Section 156(3) Cr.P.C, that the crime in question was registered. In Annexure-A6 private complaint, the 2[nd] respondent significantly does not make any reference to the agreement between him and M/s.Anju Investments or the default committed in making payments due to M/s.Anju Investments under Annexure-A1 agreement. 5. According to the 2[nd] respondent, in Annexure-A6 private complaint, accused 1 to 6 arrayed in that complaint had forcibly taken away the lorry belonging to him which was parked in the premises of the 1[st] accused. It is specifically alleged that accused 1 to 6 had motive against the 2[nd] respondent. The specific allegation is that accused 1 to 6, on account of such motive, took away the vehicle stealthily and they started using Crl.M.C. No.3414 of 2007 5 the same. It is further alleged that after some time, the vehicle was handed over to the 7[th] accused, ie. the 1[st] petitioner herein. Accused 8, as per Annexure-A6 are two sons of the 1[st] petitioner and they are referred to as accused 8 and 9. 6. According to the 2[nd] respondent, the vehicle was removed stealthily on 26.01.05 and he had filed a complaint before the Kanjiramkulam Police Station on 27.01.2005. The police did not take any action on such complaint. It was hence that he long later came to court with Annexure-A6 private complaint on 07.06.06. 7. The petitioners have a totally different case to advance. According to them, the vehicle was not taken over possession on 26.01.05. Since there was default in payment of the amount under Annexure-A1 agreement, invoking clause 14 of the said agreement, the seizure of the vehicle was effected on 05.03.05. After effecting seizure, Annexure-A4 notice was issued to the 2[nd] respondent demanding payment of amounts. Amounts were not paid. This obliged M/s.Anju Investments to issue a further notice dt.20.06.05, copy of which is produced as Annexure-A4(a). As there was no response whatsoever from the 2[nd] respondent, M/s.Anju Investments was constrained to sell the vehicle. After sale, a further notice dt.03.04.06, a copy of which is Crl.M.C. No.3414 of 2007 6 produced as Annexure-A4(b), was issued by M/s.Anju Investments to the 2[nd] respondent demanding balance amount due under Annexure-A1 Agreement. There was no reply to that notice also. 8. It is significant that the 2[nd] respondent also accepts receipt of the notices dated 27.04.05, 20.06.05 and 03.04.06 (ie. Annexures-A4, A4(a) and A4(b). In spite of receipt of these 3 notices, we find that the 2[nd] respondent does not raise his little finger till Annexure-A6 complaint was filed on 07.06.08. When Annexure-A6 complaint is filed at least he does not refer to Annexure-A1 agreement, Annexure-A4 series notices or even to the fact that the 1[st] petitioner (A7) is the agent of M/s.Anju Investment. The learned counsel for the petitioners contends that it was a case where seizure was effected on 05.03.05 and not on 26.01.05. After effecting seizure, without any demur and without use of any force, Annexures-A4, A4(a) and A4(b) notices were issued to the 2[nd] respondent and the 2[nd] respondent, fully conscious of the true state of affairs, did not think it necessary or fit to raise any objections against the conduct of seizure of the vehicle, which was clearly conveyed to him under Annexures-A4, A4(a) and A4(b). The short contention of the learned counsel for the petitioners is that the subsequent filing of Annexure-A6 Crl.M.C. No.3414 of 2007 7 private complaint and registration of Annexure-A7 F.I.R is totally unjustified and amounts to abuse of the criminal investigative and adjudicatory processes. The learned counsel for the petitioners further contends that even though a final report was filed by the Investigating Officer after satisfying himself about the true state of affairs, proceedings have been revived and further investigation was being conducted without any justification. 9. The learned counsel for the 2[nd] respondent on the contrary contends that it was not a case of bona fide exercise of the powers of seizure which M/s.Anju Investments has resorted for itself under clause 14 of Annexure-A1 extracted above. It was a mala fide resort to stealth and there was unjustified removal of the vehicle from the possession of the 2[nd] respondent by accused 1 to 9 including the petitioners. He contends that amounts which were actually paid have not been given due credit by M/s.Anju Investments and the 1[st] petitioner, the Nagarcoil agent of M/s.Anju Investments. 10. The Investigator takes the stand that seizure was effected by M/s.Anju Investments and the 1[st] petitioner, as an agent of M/s.Anju Investments and such seizure, does not have the sanction of law. It is contended that the seizure effected without recourse to proceedings through the civil court is Crl.M.C. No.3414 of 2007 8 unjustified and amounts to offences punishable under the Indian Penal Code. 11. I have heard the learned counsel for the petitioners as well as the 2[nd] respondent. The learned Public Prosecutor has also advanced his arguments. The documents produced in this Crl.M.C and the case diary in Crime 134 of 2006 have been considered by me in detail. 12. I reckon it as crucially important that there is no allegation that any force has been employed in the re-possession of the vehicle, whether it be on 26.01.05 or 05.03.05. It is not also disputed that in Annexure-A1 there is stipulation authorizing agents of the M/s.Anju Investments to effect re-possession of the vehicle if there be default in payment. In my mind what tilts the scales in favour of the petitioners is the undisputed conduct of the 2[nd] respondent on receipt of Annexures-A4, A4(a) & A4(b) notices. No objection was raised to the seizure of the vehicle invoking the powers under clause 14 of Annexure-A1. That clearly indicates that the 2[nd] respondent had acquired to the conduct of M/s.Anju Investments through the 1[st] petitioner effecting seizure of the vehicle invoking the powers under Annexure-A1 agreement. Whether the seizure be on 26.01.05 or on 05.03.05, the 2[nd] respondent is shown to have accepted the exercise of the powers Crl.M.C. No.3414 of 2007 9 under clause 14 of Annexure-A1 by the 1[st] petitioner herein and that to my mind it appears to be crucial and tilts the scales in favour of the petitioners. 13. There is of course a contention raised that a complaint was filed before the Kanjiramkulam Police Station on 27.01.05. The 2[nd] respondent has produced before this Court Annexure-R2 (3) which is said to be a copy of the said complaint filed. Significantly there is no material whatsoever to show that such a complaint had been filed before Kanjiramkulam police. Investigation so far has not led the police to conclude that any such complaint had been filed on 27.01.05. This has got to be read along with the conduct of the 2[nd] respondent not raising any complaint even after receipt of Annexures-A4, A4(a) and A4(b). 14. The offence alleged is the one punishable under Section 379 and 411 I.P.C. Dishonest intention is the foundation of the offence of theft. The conduct of the 2[nd] respondent on receipt of Annexures A4, A4(a) and A4(b) knocks the bottom out of the theory that M/s.Anju Investments was prompted by dishonest motive in effecting the seizure of the vehicle. The conduct of M/s.Anju Investments after the alleged seizure was effected – whether on 26.01.05 or on 05.03.05 of issuing Annexures A4, A4(a) andA4(b) and the silence of the 2[nd] Crl.M.C. No.3414 of 2007 10 respondent thereafter lead me to the conclusion that there is no merit in the grievance raised that there was dishonest intention in the seizure of the vehicle on 05.03.05. The question is not whether there has been overstepping of the limits while exercising the powers under Annexure-A1 agreement. The question is whether there was dishonest intention vitiating the transaction of seizure. It is here, I repeat, that the conduct of M/s.Anju Investments in issuing Annexures-A4, A4(a) and A4(b) notices to the 2[nd] respondent and the conduct of the 2[nd] respondent on receipt of such notices become crucial and relevant. The suppression in Annexure-A6 complaint of AnnexureA1 agreement, the fact of receipt of Annexure-A4 series and even the fact that the 1[st] petitioner is the agent of the financier, do eloquently convey the mala fides of the 2[nd] respondent. By fraudulent suppression of such vital details in Annexure-A6, there was mala fide resort to the criminal adjudicatory process, I am satisfied. 15. Having considered all the relevant circumstances, I find merit in the contention of the learned counsel for the petitioners that permitting the continuance of the investigation in Crime No.134 of 2006 of Kanjiramkulam Police Station would amount to abuse of process of the Court and unjustified resort to the criminal Crl.M.C. No.3414 of 2007 11 investigative and adjudicatory processes. I am satisfied that the prayer to invoke the jurisdiction under Section 482 Cr.P.C to quash the proceedings can be accepted. 15. In the result: i) This Crl.M.C is allowed; ii) Crime No.134 of 2006 registered at the Kanjiramkulam Police Station and all further steps thereafter taken in the investigation are hereby quashed. 16. The learned counsel for the petitioners has advanced an argument that **Tarun Bhargava v. State of Haryana** [2003 (3) KLT 397] and **Shibi Francis v. State of Kerala** [2007(3) KLT 923] have been wrongly decided and **Shibi Francis v. State of Kerala** requires reconsideration. I am not satisfied that that question deserves detailed consideration in this case. ## **(R.BASANT, JUDGE)** rtr/-