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2002 DIGILAW 146 (KAR)

MAHESH KUMAR K. S v. STATE OF KARNATAKA

2002-02-20

M.P.CHINNAPPA

body2002
M. P. CHINNAPPA, J. ( 1 ) HEARD Sri K. M. Nataraj the learned counsel for the petitioner and Sri. B. C. Muddappa the learned Addl. S. P. P. Though notice was served on the 2nd respondent/complainant, he remained absent. ( 2 ) THE brief facts leading to this petition are that the 2nd respondent filed a complaint against the petitioner alleging that the petitioner after availing loan for purchase of vehicle under hire purchase agreement defaulted in payment of monthly instalments. It is further alleged that the petitioner had an intention to cheat by handing over the vehicle to a third party. It also sought for search warrant to direct the Inspector of Police to produce the said vehicle before Court. After receipt of this complaint, the learned JMPC. (II Court), Mangalore, registered a case in C. C. No. 18585/97 and took cognizance of the offence and recorded the sworn statement of the complainant on 18-8-97. On 20-8-97 on the application filed by the complainant/r-2 under S. 93, issued search warrant to produce the vehicle, etc. Subsequently, on 26-8-97 yet another application under Ss. 451 and 457, Cr. P. C. was filed for release of the vehicle. In the meantime, the other side also filed a similar application. On 28-8-97 the Court directed to refer the case for investigation under S. 156 (3) Cr. P. C. to the Kadri P. S. Mangalore, for investigation and report, and, the police investigated the case and filed a charge-sheet against the petitioner in Cr. No. 301/97 for the offence punishable under Ss. 420 and 421, IPC. Therefore, the Court issued summons to the petitioner and he appeared and requested the Court to close the proceedings on the ground that the dispute is of civil nature. However, the Court has rejected the request by order dt. 20-9-01. Therefore, he filed this petition. ( 3 ) FROM the very narration of the facts, it is abundantly clear that the learned Court below has after taking cognizance of the case issued search warrant and that cognizance was taken before recording his sworn statement. That being the case the Court should have proceeded with the case in accordance with S. 202 (1) Cr. P. C. Further, even the Court has directed the police to investigate the case under S. 156 (3) Cr. That being the case the Court should have proceeded with the case in accordance with S. 202 (1) Cr. P. C. Further, even the Court has directed the police to investigate the case under S. 156 (3) Cr. P. C. It is settled law that when once the Court has taken cognizance of the offence, it is not open to the Court to refer the case to the police for investigation under S. 156 (3) Cr. P. C. Therefore, the very procedure adopted by the Court below is contrary to the provisions of law. On that ground itself, the complaint is liable to be quashed. Their Lordships of the Supreme Court in Devarapalli Lakshmi-narayana Reddy v. Narayana Reddy, AIR 1976 SC 1672 : 1976 Cri LJ 1361) held that under S. 156 (3) the Magistrate refers the case which is in the nature of peremptory reminder to the police to exercise their plenary powers of investigation under Section 156 (1), but under S. 202 the Magistrate is empowered to direct, within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding. " Thus the object of an investigation under S. 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. In this case, the Court after taking cognizance has referred the matter under S. 156 (3) Cr. P. C. and not under S. 202, Cr. P. C. Therefore, the procedure adopted by the Court also is illegal and invalid. ( 4 ) THE learned S. P. P. submitted that the matter may be remanded to the Court to proceed with the case at the stage at which the complaint was lodged. To consider this request it is necessary to find out as to whether on the allegation made in the complaint any offence was constituted for the Court to proceed against the petitioner. To consider this request it is necessary to find out as to whether on the allegation made in the complaint any offence was constituted for the Court to proceed against the petitioner. ( 5 ) THE learned counsel for the petitioner submitted that no offence is made out in view of the fact that the vehicle was taken on hire purchase and if he had failed to pay the instalments, it is open to the respondent/complainant to proceed against him before the Civil Court as there was no dishonest intention on the part of the petitioner to cheat the complainant at the inception of the contract. To substantiate his argument, he placed reliance on the judgment of the Supreme Court reported in State of Kerala v. A. Pareed Pillai AIR 1973 SC 326 : (1972 Cri LJ 1243) wherein it is held :"to hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise. " ( 6 ) RECENTLY their Lordships of the Supreme Court in S. W. Palanitkar v. State of Bihar, (2001) 1 SCC 241 : ( AIR 2001 SC 2960 : 2001 Cri LJ 4765) it is held that under Ss. 420 and 415 cheating the stage at which fraudulent or dishonest intention should exist in order to make out the offence of cheating, such intention must be shown to exist at the time of making of the inducement. Otherwise, mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. ( 7 ) IN the case on hand, the complainant himself has stated that the petitioner who had taken the vehicle on hire purchase had failed and neglected to pay certain instalments. In other words, he had paid certain instalments to the complainant after taking the vehicle on hire purchase agreement. Therefore, the petitioner had no dishonest intention on part of petitioner as on the date of entering into hire purchase agreement to cheat or induce the complainant/respondent No. 2. Thus the dishonest intention is absent in this case. In other words, he had paid certain instalments to the complainant after taking the vehicle on hire purchase agreement. Therefore, the petitioner had no dishonest intention on part of petitioner as on the date of entering into hire purchase agreement to cheat or induce the complainant/respondent No. 2. Thus the dishonest intention is absent in this case. ( 8 ) THE Madras High Court in Abdul Rahim v. Inspector of Police 1992 0 Crlj 370 held that breach of conditions of hire purchase agreement do not amount to offence of cheating. Therefore, viewed from any angle, it is clear that there is no dishonest intention on the part of the petitioner to cheat the respondent complainant, on the other hand, he could not pay the instalments regularly. Hence, it is always open to the complainant to proceed against him before the Civil Court for appropriate relief. Under the extraordinary circumstances, this Court will have to exercise its inherent power to give effect to the order to prevent the abuse of process of Court or otherwise to secure the ends of justice. Accordingly, this petition deserves to be allowed. For the foregoing reasons this petition is allowed. The entire proceedings pending before the Court in C. C. No. 18585/97 on the file of the learned JMFC, (II Court) Mangalore, D. K. is quashed in the interest of justice. Petition allowed. --- *** --- .