Fini v. State of Kerala and M.A. Joy

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 Crl.MC.No. 3678 of 2005() ------------------------CC.293/2005 of JUDL.MAGISTRATE OF FIRST CLASS, SULTHANBATHERY .................... PETITIONER: ACCUSED. -------------------- FINI, W/O.E.A.BABU, PONGALAYIL BUILDING, PULPALLY, WAYANAD DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS: STATE AND COMPLAINANT. ----------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,. KOCHI 31. 2. M.A.JOY, S/O.AUGUSTINE, PARTNER, VIKAS AUTO CONSULTANTS, CHUNGAM, SULTHAN BATHERY, WAYANAD DISTRICT. - R1 BY PUBLIC PROSECUTOR SRI C.M. NAZAR SRI.K.BABU THOMAS FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.C. NO.13925/05 IN CRL.M.C. 3678/2005 DISMISSED. 22/5/2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// ## **V.K.MOHANAN, J.** ---------------------------------------------CRL.M.C.No.3678 of 2005 ---------------------------------------------Dated, 22[nd] May, 2008. ## **ORDER** The accused in C.C.No.293/2005 on the file of the Judicial Magistrate of the First Class-I, Sulthan Bathery is the petitioner herein who filed the present petition under section 482 of Cr.P.C. to quash all proceedings pending against him. C.C.No.293/2005 is a case instituted upon a private complaint filed by the 2[nd] respondent for the offence punishable under sections 415, 418 and 420 of IPC. Annexure-A is the complaint on the basis of the above case instituted before the court below. Annexure A is a protest complaint dated 14-1-2005. Earlier, respondent herein had filed CMP No.6670/2003 before the court below for the offence punishable under sections 447,451, 399 of IPC and the same was forwarded to the police for investigation under section 156(3) Cr.P.C and accordingly, crime No.423/2003 was registered in the Sulthan Bathery Police Station. After the registration and investigation of the crime, police found that the case is a false one and accordingly referred the same. It was in CRL.M.C.3678/05 ## **-:2:-** these circumstances, the 2[nd] respondent herein filed Annexure A protest complaint before the court below. In the protest complaint the allegation is that on 10-10-2001, the petitioner/accused and her parents approached the complainant/2[nd] respondent and after pledging a Maruthi car bearing registration No.TN 01M 2337, availed a loan of Rs.80,000/- on condition that the principal amount as well as the interest will be paid back by way of instalments. But according to the complaint, after payment of certain instalments, the petitioner made default in repaying the amount and though the complainant and mediators requested the petitioner to pay back the amount, she was not prepared to pay off the instalments. It is the specific case of the complainant that in the meanwhile, registration number of the vehicle was changed and though the complainant had tried to seize the vehicle, the same was prevented and the petitioner herein filed a suit before the Munsiff's Court suppressing all the materials and misrepresenting the court obtained injunction order and thereby the attempt of the complainant to seize the vehicle was CRL.M.C.3678/05 ## **-:3:-** defeated. It is the further case of the complainant that subsequently, the said vehicle was sold to another person on 1010-2002. It is also the case of the complainant that the petitioner/accused had obtained Rs.10,000/- from another person mortgaging the R.C.Book of the vehicle. So according to the de facto complaint, the petitioner has committed the offence punishable under sections 415, 418 and 420 of IPC. On filing the protest complaint, the court below took cognizance and instituted C.C.No.293/2005. It is the above proceedings sought to be quashed under section 482 of Cr.P.C. 2. I have heard the counsel for the petitioner as well as 2[nd] respondent and also the Public Prosecutor. 3. Learned counsel for the petitioner submitted that when there was a move from the part of the 2[nd] respondent to seize the vehicle, the petitioner/accused approached the Munsiff's court, Sulthan Bathery by filing O.S.54/2003 and obtained interim injunction. After the filing of the civil suit, the 2[nd] respondent approached the Magistrate court by filing CMP 6670/2003 which was consequently referred by the police after CRL.M.C.3678/05 ## **-:4:-** investigation. Counsel for the petitioner submitted that the present complaint is filed with a view to harass the petitioner. It is the case of the counsel for the petitioner that even if the entire averments are admitted, there can be no offence under section 415 or 420 disclosed against the petitioner and therefore the Magistrate has committed a grave mistake in taking cognizance. According to the counsel, at the most, the complainant has to file a suit since the nature of the averments shown only a civil transaction. 4. On the other hand, counsel for the 2[nd] respondent submitted that after availing loan from the complainant, the vehicle has been sold out to 3[rd] person and also obtained money from another person by pledging the R.C.book of the vehicle. Therefore, according to the counsel, at the time of taking loan from the complaiant, the petitioner has intended to cheat the complainant and therefore, the Magistrate was right in taking cognizance based upon Annexure A protest complaint. The Public Prosecutor submitted that initially, crime was registered as 423/2003 in the Sulthan Battery Police Station on CRL.M.C.3678/05 ## **-:5:-** receipt of the complaint in CMP 6670/-2003 under section 156(3) Cr.P.C. The police after investigation found the case false and accordingly the same was referred as a false case. 5. I have gone through the entire materials available on records and also the counter affidavit filed by the 2[nd] respondent. 6. Going by Annexure A protest complaint, the grievance of the complainant appears to be that after having availed a loan of Rs. 80,000/-, the petitioner has not paid off the entire amount due even though she had remitted certain instalments. Annexure R2(c) is another document produced by the 2[nd] respondent which would show that there was a hire purchase agreement entered into between the petitioner and the company through the complainant. It is also clear from Annexure R2(c) that if there is any delay in payment, additional financial charges will be levied from the lonee, the petitioner herein. Ext.R2d(3) is another letter produced by the respondent/complainant by which the accused petitioner requested the complainant time for payment. It is true that after the hire purchase agreement between the petitioner and CRL.M.C.3678/05 ## **-:6:-** 2[nd] respondent, the decision might have been changed but that does not mean that while entering into hire purchase agreement, the petitioner accused has got any intention to cheat the complainant or company. There is absolutely no material or averments to come into a conclusion that the petitioner accused has got intention to cheat the complainant at the time they entered into the hire purchase agreement. It follows that no ingredients of offences under sections 415, 418 or 420 are disclosed even if the allegations are admitted as true. Of course, the case regarding non payment of instalments etc. are grounds for civil action. No such civil action cannot be converted into criminal proceedings as a short cut for the realisation of the amount due as per the agreement or for the realisation of the amount which is due in terms of the hire purchase agreement. In support of the fervent pleadings for quashing annexure A complaint, the counsel for the petitioner placed reliance in **Uma Shankar Gopalika v. State of Bihar** {(2005) 10 SCC 336}. Counsel invited my attention to paragraph 6 of the above decision which runs as follows: CRL.M.C.3678/05 **-:7:-** **“** Now the question to be examined by us is as to whether on the facts disclosed in the petition of complaint any criminal offence whatsoever is made out much less offences under Sections 420/120-B IPC. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs.4,20,000/- they would pay a sum of Rs.2,60,000/- to the complainant out of that but the same has never been paid. Apart from that there is no other allegation in the petition of complaint. It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused persons may take steps for moving the Consumer Forum in relation to the claim of Rs.4,20,000/-. It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence **”** under Section 420 IPC . On the basis of the above it is further held in paragraph 7 as follows: **“** In our view petition of complaint does not disclose any criminal offence at all much less any offence either under Section 420 or Section 120B IPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent CRL.M.C.3678/05 ## **-:8:-** the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 Cr.P.C. which it has **”** erroneously refused . In the present case also, the complainant failed to allege or establish the criminal intention of the accused even at the time of the very inception of the hire purchase agreement. On the other hand, what provoked the complainant is the subsequent transaction with respect to the vehicle that entered into by the accused. Primarily, the grievance of the complainant is the non payment of the instalments in time. If that be so, the remedy is to file a civil suit by which his grievance can be redressed and therefore, the subsequent transactions may be a helpful fact or to establish the civil remedy. In the light of the above facts and circumstances, I am of the view that no criminal offence is disclosed against the petitioner/accused, especially, in the light of the fact that police has already registered a crime and after having conducted an investigation came into the positive conclusion that the case itself is a false one. CRL.M.C.3678/05 ## **-:9:-** 7. In the result, the continuation of the prosecution before the court below will amount to abuse of the process of the court and to prevent the same, it is just and proper to quash all proceedings in C.C.293/2005 of the Judicial First Class Magistrate-I, Sulthan Bathery in exercise of the powers of this Court under section 482 of Cr.P.C. Accordingly, Annexure A complaint and all proceedings in C.C.293/2005 are quashed. The Crl.M.C. is allowed. There will be no order as to costs. ## **V.K.MOHANAN, JUDGE.** kvm/- CRL.M.C.3678/05 **-:10:-** CRL.M.C.3678/05 **-:11:-** V.K.MOHANAN, J. No.... Judgment/Order Dated: