Sominder Singh & Paul Augustine v. State of Kerala & Shajan Antony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942** ## **Crl.MC.No.1059 OF 2015** **AGAINST CC NO.841/2014 ON THE FILES OF THE CHIEF JUDICIAL MAGISTRATE'S COURT, THRISSUR** ## **PETITIONERS/ACCUSED NOS.1 & 2::** - **1 SOMINDER SINGH AGED 44 YEARS, S/O REGHBIR SINGH, FLAT 401, TOWER 8, THE CLOSE NORTH, NERVANA COUNTRY, SECTOR 50, GURGOAN, GURGOAN SOUTH CITY, II GURGOAN, HARYANA -122018, PRESENT ADDRESS UNIT 202, IIND FLOOR, CAMPUS 3B, RMZ, MILENIA BUSINESS PART 143, DOCTOR M.G.R.ROAD, PERUNGADI, CHENNAI – 600096.** - **2 PAUL AUGUSTINE, AGED 35 YEARS, S/O.AUGUSTINE POTHENITHODU HOUSE, KOTHAMANGALAM, RAMALLOOR DESOM.** **BY ADVS. SRI.P.VIJAYABHANU (SR.) SRI.M.S.UNNIKRISHNAN SRI.JITHIN PAUL VARGHESE** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 SHAJAN ANTONY, AGED 50 YEARS, S/O.ANTONY, BAVELI HOUSE, MANDAPATHIL LANE, MISSION QUARTERS, CHEMBOOKKAVU VILLAGE, THRISSUR.** **R1 BY PUBLIC PROSECUTOR R2 BY ADV. ENOCH DAVID SIMON JOEL R2 BY ADV. SRI.S.SREEDEV R2 BY ADV. SRI.RONY JOSE** ## **OTHER PRESENT:** ## **SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.1059 OF 2015 2 ## **O R D E R** ## **Dated this the 15th day of January 2021** The petitioners are the 1[st] and 2[nd] accused in C.C. No.841/2014 on the file of the Chief Judicial Magistrate Court, Thrissur. The above case was charge sheeted by the Thrissur East Police against the petitioners and two others alleging offences punishable under Sections 406 & 420 Indian Penal Code (IPC). The case was originally registered based on a private complaint filed before the jurisdictional Magistrate Court, which was forwarded under Section 156 (3) Cr.P.C. 2. The prosecution case in brief is like this:- The _de-facto_ complainant/2[nd] respondent herein and his daughter had entered into a loan agreement at 0% interest with the Daimler Financial Services India Private Limited for the purchase of a MercedezBenz- E 250 CDI car from Rajasree Motors Private Limited, which is the authorised dealer of Mercedez-Benz car. The agreement was executed on 28.02.2014. The 0% interest scheme was intended for 2013 model Mercedez-Benz- E 250 CDI car. The _de-facto_ complainant handed over 30 post dated cheques as security for Crl.MC.No.1059 OF 2015 3 the repayment of the loan which was around Rs.31, 65,000/- After the disbursal of the loan the _de-facto_ complainant expressed his desire to buy a 2014 model Mercedez-Benz- E 250 CDI car. After negotiation, another loan agreement was entered for purchase of 2014 model Mercedez-Benz- E 250 CDI car, after canceling the earlier loan agreement for the purchase of 2013 model car. The second agreement was on 25.03.2014. At that time 48 post dated cheques were handed over to the financiers. The 2[nd] respondent/ _de-facto_ complainant alleged that though the agreement dated 28.02.2014 was canceled, the company had not returned the 30 cheques and in the meanwhile the company had encashed one of the above EMI cheque which was for an amount of Rs.1,05,500/- The _de-facto_ complainant would further allege that the company and its officials, by encashing the cheques had fraudulently obtained Rs.1,05,500/- and thereby committed the abovesaid offences. 3. Heard learned counsel for the petitioners and the counsel for the 2[nd] respondent. I also heard the learned Public Prosecutor. Crl.MC.No.1059 OF 2015 4 4. The learned senior counsel Sri.P. Vijayabhanu argued the case on behalf of the petitioners/accused 1 & 2 as instructed. The senior counsel submitted that even if the entire allegations in Annexure B Final Report are accepted _in toto_ , the offence under Section 406 and 420 IPC is not made out. The senior counsel submitted that the admitted case of the _de-facto_ complainant is that 30 cheques were handed over to the company as per an agreement dated 28.02.2014. Thereafter one cheque was presented before the Bank by the company and that cheque was honoured. Subsequently, on 11.04.2014, the amount covered by that cheque was returned to the 2[nd] respondent through online transaction. Annexure C is the document to show that the amount is transferred to the 2[nd] respondent. The counsel submitted that there is absolutely no criminal intention on the part of the petitioners. According to the senior counsel the ingredients of Section 406 and 420 IPC is not made out _prima facie_ in this case. There is no loss sustained to the _de-facto_ complainant. The balance cheques were returned to the _de-facto_ complainant subsequently. Out of the total 30 cheques, 28 cheques were returned to the Crl.MC.No.1059 OF 2015 5 _de-facto_ complainant. One cheque was presented before the Bank and honoured and subsequently the amount covered by that cheque was also transferred back to the 2[nd] respondent. As far as the balance one cheque is concerned, the senior counsel submitted that the same is lost and the petitioners will not proceed based on that cheque. The learned Senior counsel also relied the judgment of the Apex Court in _**V.Y. Jose v. State of Gujarat**_ [2009 (3) SCC 78], _**R. Kalyani v. Janak C. Mehta**_ [2009 (1) SCC 516] and _**Sharon Michael v. State of Tamil Nadu**_ [2009 (3) SCC 375], to substantiate his contention. 5. The counsel for the 2[nd] respondent submitted that this is a clear case of cheating. According to the counsel, the dates of these transactions are relevant and that itself would reveal the criminal intention of the petitioners. According to the counsel, the first agreement was on 28.02.2014. On that day 30 cheques were handed over to the petitioners. The subsequent agreement was on 25.03.2014 by which 48 cheques were handed over to the petitioners. But on that day the 30 cheques were not returned. Instead of that one of the cheque was presented before the Bank Crl.MC.No.1059 OF 2015 6 by the petitioners. That itself shows the criminal intention of the petitioners. The counsel submitted that there is evidence to show that the cheques were entrusted to the petitioners and also to show that the petitioners presented the cheque before the Bank. There is evidence to show that the cheque which was presented was honoured. Therefore, the counsel submitted that it is a clear case in which the petitioners committed offence under Sections 406 and 420 IPC. The learned counsel for the 2[nd] respondent relied on several judgments of the Apex Court to substantiate his case. He relied the Apex Court judgment in _**Ghanshyam v. State of Rajasthan**_ [2014(2) SCC 683], _**Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries Limited and Others**_ [2008 (13) SCC 678], _**Vijayasarathi R.K. (Prof.) and Another v. Sudha Seetharam and Another**_ [2019 (1) KLD 532 (SC)] and also the judgment of this Court in _**Damodara Panicker v. State of Kerala**_ [2019 (3) KLT 573], etc. 6. After hearing both sides, according to me, there is some force in the argument of the learned Senior counsel. The judgments relied by the learned counsel for the 2[nd] respondent are regarding the ingredients to attract the offence under Sections Crl.MC.No.1059 OF 2015 7 406 and 420 IPC. The counsel also relied the judgment of the Apex Court to substantiate that the jurisdiction of this Court to invoke the powers under Section 482 Cr.P.C. is limited. There is no dispute on these legal aspects. 7. But, the admitted prosecution case is that the _de-facto_ complainant approached the petitioners for availing a loan for purchase of a Mercedez-Benz car. There was an agreement for the same on 28.02.2014. 30 post dated cheques were issued by the 2[nd] respondent to the petitioners. Subsequently, the 2[nd] respondent decided to purchase a 2014 model car and he decided to cancel the earlier agreement. Accordingly a fresh agreement was executed on 25.03.2014 and another 48 post dated cheques were issued to the petitioners. The case of the 2[nd] respondent is that when there was a second agreement on 25.03.2014 and the agreement dated 28.02.2014 is got cancelled, the petitioners with a criminal intention presented one of the post dated cheque handed over to the petitioners at the time of the earlier loan agreement dated 28.02.2014. 8. According to the 2[nd] respondent, this is without the Crl.MC.No.1059 OF 2015 8 knowledge of the 2[nd] respondent. It is also an admitted case that the cheque was honoured. It is further admitted by the 2[nd] respondent that the amount covered by the cheque was subsequently transferred to the 2[nd] respondent. According to the 2[nd] respondent, this was done when a notice was issued by the 2[nd] respondent to the petitioners. But a perusal of Annexure C will show that it was on 11.04.2014 whereas the notice was issued on 12.04.2014. The other case put forwarded by the 2[nd] respondent is that the remaining cheques were not returned to the 2[nd] respondent immediately after canceling the earlier loan agreement dated 28.02.2014. According to the 2[nd] respondent, those cheques were returned only on 16.08.2014. Even if these admitted case of the 2[nd] respondent are accepted, the ingredients of Section 406 and 420 IPC is not made out. There may be some violations of the agreements executed between the parties. Violation of a clause in a loan agreement will not amount to a criminal offence. Moreover, it is an admitted fact that there is no loss sustained to the 2[nd] respondent because the amount covered by the cheque which was presented by the petitioners before the Bank and subsequently Crl.MC.No.1059 OF 2015 9 honoured was already returned to the 2[nd] respondent. 9. This is a case charge sheeted in 2014. This criminal miscellaneous case was filed in 2015 and the matter was stayed by this Court at the time of admission itself. This criminal miscellaneous case is pending for the last 5 years before this Court and the lower court proceedings were also stayed. It will be an abuse of process of court to continue the criminal prosecution against the petitioners in the facts and circumstances of this case. Therefore this criminal miscellaneous case is allowed and all further proceedings against the petitioners in C.C. No.841/014 on the file of the Chief Judicial Magistrate Court, Thrissur, are quashed. **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** Skk//16012021 Crl.MC.No.1059 OF 2015 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A** **TRUE COPY OF THE PRIVATE COMPLAINT PREFERRED BY THE 2ND RESPONDENT HEREIN BEFORE THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, THRISSUR AGAINST THE PETITONERS/ACCUSED** ## **ANNEXURE B** **TRUE COPY OF THE FINAL REPORT IN CRIME NO.2107/2014 OF THRISSUR EAST POLICE STATION, THRISSUR DISTRICT** **ANNEXURE C TRUE COPY OF THE RELEVANT PAGE OF THE BANK STATEMENT PERTAINING TO DAIMLER FINANCIAL SERVICES PRIVATE LIMITED** **RESPONDENTS' EXHIBITS: NIL**