Sree Krishna Sharma v. State of Kerala & Yahiya Thangal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HON'BLE MR. JUSTICE K.RAMAKRISHNAN** ## **FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934** ## **Crl.MC.No. 967 of 2007 ( )** **-------------------------CC.NO.1197/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT.,KASARGODE -------------------------------------------** **PETITIONER(S)/ACCUSED: ------------------------------------------** **SREE KRISHNA SHARMA, AGED 30 YEARS, S/O. SUBRAMONIA IYER, MANAGER TATA MOTOR FINANCE, KANNUR.** **BY ADVS.SRI.K.SHAJ SRI.B.BALRAJ SRI.SAJJU.S** ## **RESPONDENT(S)/COMPLAINANT/STATE:** **------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. YAHIYA THANGAL, AGED 32 YEARS, S/O. POOKOYA THANGAL, MADHUR SHRIBAGILU VILLAGE & POST, KASARGODE DISTRICT.** **R1 BY DIRECTOR GENERAL OF PROSECUTION SRI.T.ASAF ALI R2 BY ADV. SRI.BECHU KURIAN THOMAS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **CRMC.NO.967/2007** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX A1 COPY OF THE COMPLAINT IN C.C.NO.1197/2006 BEFORE THE JFCM,KASARGODE ANNEX A2 COPY OF THE CC.NO.18/2006 PENDING BEFORE THE CDRF, KASARAGOD ANNEX A3 COPY OF THE INTERIM ORDER DATED 08/03/2006 IN WP(C)NO.6883/2006 AGAINST THE CC.NO.18/2006 PENDING BEFORE THE CDRF, KASARAGOD ANNEX A4 COPY OF THE OFFICE ORDER DATED 09/02/2006 ANNEX A5 COPY OF THE AUTHORIZATION LETTER DATED 04/02/2006 ISSUED BY TATA MOTORS FINANCE LTD ANNEX A6 COPY OF THE RE-POSSESSION INVENTORY LIST DATED 08/02/2006 ANNEX A7 COPY OF THE TELEGRAM DATED 08/02/2006 TO SHO,KASARGODE ANNEX A8 COPY FO THE TELEGRAM DATED 08/02/2006 TO THE 2ND RESPONDENT.** ## **RESPONDENT'S ANNEXURES: NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** **“C.R.”** ## **K.RAMAKRISHNAN, J.** ---------------------------------------------------- Criminal MC No.967 of 2007 ---------------------------------------------------Dated this the 8[th] day of February 2013 ## Order This is an application filed by the first accused in CC No.1197/06 on the file of the Judicial First Class Magistrate's Court, Kasaragod, to quash the case against him, under Section 482 of the Code of Criminal Procedure. It is alleged in the petition that the second respondent has filed a private complaint before the Judicial First Class Magistrate's Court, Kasaragod and after taking the sworn statement, the case was taken on file against the present petitioner and other seven identifiable accused persons. It is alleged in the complaint that the complainant is the registered owner of the vehicle bearing Registration No.KL-14/E-3032 and as per the loan agreement entered into between the complainant and the first accused, the complainant had availed of a loan of Rs.3,50,000/- from the first accused, after making a down payment of Rs.55,000/-. The complainant purchased the above said vehicle in his name, using the loan provided by the first 2 Crl.MC 967/07 accused. The Registration Certificate and the Insurance Certificate stand in the name of the complainant. There was some default committed in payment of the amount. On 7.2.2006, while he was driving the vehicle at about 6 pm, when the complainant reached the place called Dliyathadka, the first accused, along with seven other accused persons, stopped the vehicle and took the vehicle forcibly from him and they have no right to take forcible possession of the vehicle from the complainant. He had filed a complaint before the District Consumer Disputes Redressal Forum, Kasaragod as CC No.18/2006 and the first accused was directed to produce the vehicle before the Forum as per order in IA No.18/2006. But, they did not produce the vehicle and the accused had committed the offence punishable under Section 424 r/w Section 34 of the Indian Penal Code. Earlier, he had filed a private complaint before the same court and the same was forwarded to the police under Section 156(3) of the Code of Criminal Procedure, for investigation by the learned Magistrate and the Station House Officer, Kasaragod, had registered Crime No.252/2006 and after investigation, the Investigating Crl.MC 967/07 3 Officer filed a refer report, stating that it is a mistake of fact and law. Against that, the present protest complaint has been filed by the complainant, who is the second respondent herein and after conducting enquiry under Section 202 of the Code of Criminal Procedure, the case was taken on file and process was issued. Against that, the present petition has been filed. 2. The learned counsel for the petitioner submitted that even going by the allegations in the complaint, it can be seen that there is a hire purchase agreement and the vehicle was re-possessed on the basis of the terms and conditions of the agreement and as such, there is no dishonest intention on the part of the petitioner, in re-possessing the vehicle and no offence under Section 424 of the Indian Penal Code is attracted. 3. On the other hand, the learned counsel for the second respondent argued that there is no document to show that he is an authorised agent of the financier and as such, he cannot claim protection under law. 5. On going through the allegations, it is seen that the complainant himself had stated that loan was taken from Crl.MC 967/07 4 the first accused, after executing necessary agreement. It is also stated that the first accused had re-possessed the vehicle. The complainant had no case in the complaint that he is not the authorised person and he has no authority to re-possess the vehicle as per the hire purchase agreement. Further, the documents produced by the petitioner before this court as Annexures A6, A7 and A8 show that re-possession inventory list was prepared and the matter was informed to the Station House Officer, Kasaragod and also to the complainant, who is the second respondent herein. Further, for the purpose of considering the genuineness of the allegations in the complaint, it is settled law that courts can also consider the refer report filed by the Investigating Officer, which, according to the petitioner as well as the second respondent, was referred as mistake of fact and law. In order to attract Section 424 of the Indian Penal Code, it must be proved that there must be dishonest or fraudulent concealment before removing the property and there must be assistance for removal of such property with that intention. But, in this case, admittedly, the vehicle was re-possessed on the basis of the terms and Crl.MC 967/07 5 conditions in the agreement. 6. Further, in the decision reported in **Anup Sarmah v. Bhola Nath Sharma** (2012 KHC 2956) (Vol.4 SN 34)(SC), it was held that when a vehicle is seized by a financier, no criminal action can be taken against him as he is re-possessing the goods owned by him and the hire purchaser merely remains a trustee/bailee. In such circumstances, no criminal offence has been committed and the complaint can be quashed under Section 482 of the Code of Criminal Procedure. The same principle will apply to the present case as well. So, in view of the discussions made above, it is clear that even assuming that the entire allegations made in the complaint are admitted to be true, no offence alleged has been made out and as such, there is no necessity to allow the proceedings to continue against the first accused, who alone has approached this court to quash the proceedings. 7. It is also well settled that if the court is satisfied that no purpose will be served by allowing the proceedings to continue as against the other unidentifiable accused persons as mentioned in the complaint, this court can invoke the power Crl.MC 967/07 6 under Section 482 of the Code of Criminal Procedure and quash the entire proceedings even though they have not come before this court for that purpose. This was so held in the decisions reported in **Subhash v. State of Kerala** (2011(2) KLD 152) and **Ajith v. State of Kerala** (2012(4) KLT 73). If the main allegation against the accused person does not amount to an offence, it will not be an offence against the other accused persons as well and there is no meaning in keeping the case against the other accused persons also on file. Further, there will be no purpose in keeping the case against unidentifiable persons, as it will be difficult for the complainant to give evidence regarding the identity of the persons, in an enquiry into the private complaint, especially when he has no personal acquaintance with them or regarding their identity or whereabouts. So, it can be safely concluded that no criminal offence has been made out and as such, the entire complaint can be quashed, invoking the power under Section 482 of the Code of Criminal Procedure. Accordingly, the entire proceedings on the basis of the complaint in CC No.1197/06 before the Judicial First Class Magistrate's Court, Kasaragod, is Crl.MC 967/07 7 hereby quashed and the application is allowed. Communicate this order to the lower court, at the earliest. **K.Ramakrishnan, Judge** sta Crl.MC 967/07 8