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Madhya Pradesh High Court · body

2006 DIGILAW 1342 (MP)

Nasroola Khan v. State of M. P.

2006-11-28

S.C.VYAS

body2006
ORDER 1. This is a petition under section 482 of the Code of Criminal Procedure preferred by petitioner accused for quashment of the impugned order dated 24.10.2005 passed in Criminal Case No.49 of 2002 whereby the learned trial Magistrate took cognizance against the petitioner for commission of offences under sections 420, 422, 406 and 406/109, 422/ 109 and 411 of the Penal Code, which was confirmed in Criminal Revision No.183 of 2005 vide order dated 17.2.2006, preferred by petitioner accused. 2. One private complaint has been filed by respondent No.2 for taking cognizance of the offence punishable under section 120B, 403, 406 and 420 of the Penal Code on the ground that a bus bearing registration No. MBG-8282 was purchased by the petitioner accused No.1 on the basis of hire purchase agreement entered into between petitioner No.1 and respondent No.2 after obtaining Rs.1,60,000/- which was to be paid in 36 equal instalments. Thereafter, an additional amount of Rs.2.00 Lacs has also been obtained by petitioner on 13th August, 1992 for which another agreement was executed. It has been averred in the complaint that 13 instalments were paid by the petitioner and thereafter stopped the payment of instalments. Thus, the agreed amount has become overdue with interest etc. It has also been averred that petitioner had sold the financed bus alongwith the permit to someone else and thus deceived the complainant respondent and committed an offence of cheating. It has also been averred that from the very beginning the intention of the petitioner at the time of entering into an agreement was to cause wrongful loss to the complainant and wrongful gain to themselves and thus they committed the alleged offence as aforesaid. 3. After making inquiry under sections 200 and 202 of CrPC, learned trial Magistrate took cognizance of the offence punishable under section 420, 422, 406, 406/109, 422/109 and 411 of the Penal Code. 4. After making appearance, petitioners have filed an application under sections 245 and 246 of the Code for discharging them on the ground that the alleged transaction of hire purchase entered into between the party was purely of civil nature and no offence have been committed by them. The said application was dismissed by the trial Magistrate vide order dated 24.8.2005. This order was challenged by filing revision before the ASJ Mandleshwar, which has also been dismissed vide order dated 17.2.2006. 5. The said application was dismissed by the trial Magistrate vide order dated 24.8.2005. This order was challenged by filing revision before the ASJ Mandleshwar, which has also been dismissed vide order dated 17.2.2006. 5. In the present petition it has been averred that the vehicle was purchased by the petitioner on the basis of hire purchase agreement and as per allegation of complainant himself the agreement was executed more than three years before from the date of filing of private complaint. It has also been averred that nothing has been stated in the complaint regarding dishonest intention committed by petitioner. The instalments were paid by him and bus is still stand in petitioner's name according to the documents filed by petition in the criminal complaint. Therefore, the dispute between the parties was purely of civil nature. The necessary ingredients of dishonest intention was totally missing in the facts of present case, even then, learned trial Magistrate took cognizance of the alleged offence and proceeded for trial of the case, which is illegal and contrary to law. 6. Learned counsel Mr. Saraf appearing for petitioners has drawn attention on the judgment of apex Court reported in the matter of Alpic Finance Ltd. v. P.Sadasivan and another [2001 CrLR 217], wherein it has been held that when there is no allegation that respondent made any wilful misrepresentation and even according to the appellant parties entered into a valid lease agreement and the grievance of the appellant that respondent failed to discharge his contractual obligations and in the complaint there was no allegation of fraud and inducement on the part of respondent and thereafter respondents parted with the property, then, in such circumstances, even if the accused failed to pay his debt, he does not necessarily evade the debt by deception. It is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception and therefore the quashment of criminal proceedings was found justified. 7. 7. Learned counsel appearing for petitioner has strongly relied on the judgments reported in the matter of Ahmed Moosa and others v. Inspector of Police [ 2000 CrLJ 660 ], Komalchand v. State of M.P. [2001 (II) MPWN 29=2001(3) MPLJ SN17], Arudchand v. Chandmal [1986(II) MPWN 194], Bhagatram v. Mis. A.P. Foam Pvt. Ltd. [1990(II) MPWN 74], Ghanshyam Baheti v. Ramesh Goyal [1990(II) MPWN 193] and contended that the disputes between the parties was purely of civil nature and the private criminal complaint has been filed after 3 years from the date of transaction just to harass the petitioners in such type of dispute. 8. Per contra, learned counsel appearing for respondent No.2, has argued that petitioners were having intention of deception right from the beginning when they entered into an agreement of hire purchase with respondent No.2 that is why the alleged vehicle purchased on hire purchase agreement, has been transferred to Hemraj petitioner No.2 without making full payment to the complainant. He also drew attention to the letters written by the petitioners to the complainant wherein it has been stated that amount would be paid within a short time, otherwise vehicle would be handed over to the complainant respondent. 9. I have given serious consideration to the arguments advanced by counsel for parties and to the documents which have been filed alongwith the complaint. 10. Bare perusal of complaint shows that the grievance of the complainant that despite of obtaining huge amount as finance, petitioners had paid only 13 instalments and then stopped the payment and thus failed in repaying the outstanding amount. The instalments which have been paid were also in irregular manner. It has been alleged that the vehicle has been transferred to Hemraj petitioner No.2. Despite service of notice served on the petitioner No.1 in writing, neither the vehicle was surrendered nor outstanding amount was paid. Thus, these averments show that petitioner No.1 had paid only 13 instalments in irregular manner and thereafter stopped the payment. It has further been averted in the complaint that false assurance were given by both the petitioners to the complainant respondent that outstanding amount would be paid very shortly, therefore, vehicle be not seized. On the basis of these false assurances, the vehicle was kept out of reach of the complainant respondent and thereafter it was sold to Hemraj without repaying outstanding amount. On the basis of these false assurances, the vehicle was kept out of reach of the complainant respondent and thereafter it was sold to Hemraj without repaying outstanding amount. It has also been averred that the vehicle stood in the name of petitioner, and entry of hire purchase agreement has also been made in the registration book, even then the alleged vehicle has been sold. This act of the petitioner shows his dishonest intention. The letters written by petitioner to respondent complainant has also been brought on record in which false assurance were given for making outstanding amount within a short period. But such assurance was never fulfilled. 11. In the matter of State of Haryana v. Bhajanlal [ 1992 CrLJ 527 ], certain guidelines have been laid down by the apex Court for ascertaining whether the grounds exist for exercising powers under section 482 CrPC, one of the guidelines is to the effect that where the allegations made in the FIR or the complaint, even, if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused, then powers under section 482 of the CrPC can be exercised for quashing the complaint. Apart from this many other guidelines have also been laid down. 12. Learned counsel appearing for petitioners submitted that the facts mentioned in the complaint do not constitute the offence. But I am afraid to accept the aforesaid line of arguments. Because there is special allegations made in the complaint to the effect that right from beginning, petitioner No.1 had the dishonest intention to obtain the finance amount from the complainant by deception and thereby causing wrongful loss to him and wrongful gain to himself. This averment has been reiterated by the complainant in his statement which corroborates from the fact that the vehicle was sold and transferred to someone else, that is petitioner No.2 without making payment of outstanding amount, inspite of the fact that entry with regard to hire purchase agreement was already there in the registration book. The vehicle, infact, transferred or not, is a question of fact and whether, in the facts and circumstances of the case, it can be held that complainant was deceived or cheated by petitioners is also a question of fact, which requires adjudication after trial. The vehicle, infact, transferred or not, is a question of fact and whether, in the facts and circumstances of the case, it can be held that complainant was deceived or cheated by petitioners is also a question of fact, which requires adjudication after trial. But for the present as per allegation made in the complaint and on the basis of the statement of complainant, prima facie offence punishable under Ss.420, 422 and 406 of the Code are made out. Therefore, there is no necessity for exercising powers conferred under section 482 of the CrPC. It is a settled law that such powers should be exercised sparingly and in rarest of rare cases to procure the ends of justice only. 13. The apex Court in the matter of Alpic Finance Ltd. v. P.Sadasivan and another (supra), has held that where the element of deception is missing in the whole transaction and there was no fraud or dishonest inducement on the part of the accused person in the complaint itself, then, offence of sections 420, 423 and 424 read with section 120B are not made out in the case of hire purchase agreement. 14. In the above referred matter, a non-banking financial institution advanced certain amount for purchase of Dental Chairs to a Dental College run by Visveshwaraya Education Trust. The payment of instalments was not made regularly by the Trust and some cheques were dishonoured by the bank. On physical verification, certain chairs were found missing. Therefore, a private complaint was filed. The proceedings were challenged by the respondent under the provisions of section 482 of CrPC before the learned Single Judge of Karnataka High Court and learned Single Judge was pleased to quash the entire proceedings and directed the appellant company to return all the properties seized by the police which were seized in pursuance of warrant issued by trial Magistrate. In this factual backdrop, it was held that the order passed by Karnataka High Court was justified. 15. It is clear that facts of aforesaid case were quite different from the facts of case in hand. In the case in hand, there is specific allegation that element of deception was present right from beginning when hire purchase agreement was entered into between the parties. To substantiate it, the letters written by petitioners have also been brought on record. It is clear that facts of aforesaid case were quite different from the facts of case in hand. In the case in hand, there is specific allegation that element of deception was present right from beginning when hire purchase agreement was entered into between the parties. To substantiate it, the letters written by petitioners have also been brought on record. Therefore, looking to the facts of present case, the principle laid down by apex Court in the matter of Alpic Finance (supra), are not applicable to the case in hand as there is nothing on record to infer that element of deception is missing in the whole transaction. 16. All other judgments relied on by learned counsel for petitioner also based on different facts to the facts of case in hand. Some judgments are only short notes and detailed facts of those cases are not available. 17. After giving full consideration to the facts of the present case and the averments made in the complaint, in my view there is no justification for quashing the criminal proceedings pending in the trial Court. 18. For the reasons aforesaid, the petition has no substance. The same stands dismissed.