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2009 DIGILAW 3688 (MAD)

M. Ramaiya & Others v. J. Saravanan

2009-09-11

P.R.SHIVAKUMAR

body2009
Judgment :- The petitioners herein are the accused 1 to 3 in C.C.No.9/2006, which is now pending on the file of the learned Judicial Magistrate No.1, Namakkal. The above said case was instituted on a private complaint preferred by the respondent herein under Section 200 Cr.P.C alleging commission of offences punishable under Sections 380, 383, 420 and 506(ii) IPC. The present petition has been filed under Section 482 Cr.P.C to quash the criminal proceedings instituted against them in the above said CC on the file of the learned Judicial Magistrate, Namakkal. 2. According to the petitioners, they run a partnership firm in the name and style of Jai Sriram Finance, of which the first petitioner is the managing partner and the other two petitioners are partners. The respondent herein had entered into a financial arrangement with the said firm in the form of a hire purchase agreement on 211. 2001 for a loan of Rs.3,60,000/- in respect of a lorry bearing Regn.No.KA-01 A-3641 agreeing to repay the said loan amount with interest in equal monthly instalments. As the respondent, after paying the first six instalments, was not in a position to make payment of further instalments, he requested the petitioners to give him time so that he would find out a right person to purchase the lorry. Consequently, the respondent introduced one Arularasan son of Duraisamy to pay a substantial amount on 012. 2005 and agreed to pay the remaining instalments and the respondent also issued a No Objection Certificate for cancelling the hire purchase agreement. The said Arularasan paid the entire balance due to the above said Jai Sriram Finance and got the endorsement of hire purchase agreement cancelled. The said Arularasan, after getting the endorsement of the hire purchase agreement cancelled, got the RC changed in his name and he is now in possession of the vehicle. As such with a malafide intention to harass the petitioners and to get wrongful gain, the respondent has preferred the above said criminal complaint and the learned Judicial Magistrate No.1, Namakkal also took cognizance of the offences and registered the complaint as a calendar case without appreciating the fact that the contents of the complaint did not make out a prima-facie case against the petitioners. 3. 3. Based on the above said contentions, the petitioners have prayed for an order quashing the criminal proceedings registered against them in C.C.No.9 of 2006 on the file of the learned Judicial Magistrate No.1, Namakkal. The said petition is opposed by the respondent contending that there was no error in the procedure adopted by the learned Judicial Magistrate No.1, Namakkal in taking cognizance of the offences based on the private complaint of the petitioner and that the present petition by the petitioners alone shall be an example of abuse of process of court. 4. It is the contention of the learned counsel for the petitioner that though the respondent had committed default in making payment of certain instalments and the vehicle had been seized by the financiers subsequently he paid the accumulated dues with penal interest and got the vehicle released; that there after when there was a little delay in the payment of the next instalment, the petitioners had taken the vehicle from the place wherein it had been parked by the respondent even without informing the respondent; that when the respondent met the petitioners to request them to hand over the vehicle to him accepting his promise to pay the future instalments regularly, he was intimidated by the petitioners with a threat to kill him; that at that point of time, the petitioners holding a diesel can in their hands proclaimed they would set the respondent ablaze after dousing him with diesel if he ventured to seek the release of the vehicle and that thereafter, the respondent had to set the criminal law in motion against the petitioners for prosecuting them for the offences committed by them. 5. It is also the contention of the respondent that the petitioners having obtained signatures in blank forms and blank bond papers, were trying to cause mutation in the registration certificate; that after the lodging of the complaint, they had entrusted the custody of the vehicle to a third person; that under the said circumstances, according to the respondent, the case was rightly taken on file by the learned Judicial Magistrate No.1, Namakkal, as the complaint disclosed the commission of congnizable offences punishable under Sections 380, 383, 415, 520 and 506(ii) and that therefore, the present petition filed by the petitioners under Section 482 Cr.P.C. deserves to be dismissed as there is no merit in it. 6. 6. Admittedly there was a hire purchase agreement between the respondent and Jai Sriram Finance and the same was dated 21.07.2004. It is also not in dispute that the respondent, after making payment of a few instalments, committed default and there was huge arrears pursuant to which the vehicle was seized by the financier in exercise of the right conferred under the hire purchase agreement. 7. Apart from that it is the case of the respondent that the vehicle had been seized, at the first instance, on 111. 2005 and that possession of the same was restored to him after he made payment of a sum of Rs.1,32,400/-towards the principal and interest for the past instalments and a sum of Rs.16,710/-as penal interest. It is the further contention of the learned counsel for the respondent that in the month of January 2006, after effecting necessary repairs for getting fitness certificate, he had parked the vehicle on the Salem Road near Murugan temple and that later on he was shocked to find the said vehicle missing from the said place. His further contention is that believing that the vehicle could have been taken by M/s. Jai Sriram Finance, he met the first petitioner and questioned the propriety of their act in taking the lorry even though he had paid the past instalments in full with penal interest whereupon the second and third petitioners holding a diesel can in their hands threatened the respondent to kill him by setting him ablaze and that the first petitioner caused a threat to kill the respondent by making the lorry run over him. 8. Of course, it is true that there are allegations to the effect that the petitioners had taken the lorry without even informing the respondent from the place wherein he had parked the vehicle. But there is no averment in the complaint that the theft was committed in a building, house, tent or vessel where such building, tent or vessel was used as a human dwelling or used for the custody of the property. Committing theft in a vehicle shall be distinct from committing theft of the vehicle itself. In this case, what is alleged is theft of the vehicle and not theft of anything from the vehicle. The respondent has simply expressed apprehension that the parts of the vehicle could be changed. Committing theft in a vehicle shall be distinct from committing theft of the vehicle itself. In this case, what is alleged is theft of the vehicle and not theft of anything from the vehicle. The respondent has simply expressed apprehension that the parts of the vehicle could be changed. Therefore, this court is of the view that no case for an offence punishable under Section 380 has been made out. 9. The complaint contains allegations to the effect that the petitioners stealthily removed the vehicle from the place wherein it had been parked by the respondent. There is no allegation that by threat he was made to deliver the vehicle. Therefore, this court has to accept the contention of the learned counsel for the petitioners that Section 383 IPC is also not attracted by the averments found in the complaint. 10. So far as the other offences are concerned, namely Sections 415, 420 and 506(ii) IPC are concerned, the allegations found in the complaint are lacking in one way or the other. Of course there are allegations in detail to the effect that when the respondent met the first petitioner and questioned him regarding the whereabouts of his lorry, he admitted that they had taken the lorry as the respondent committed default in payment of instalment and that all the three petitioners caused threat to kill him, if he ventured to plead for the return of the vehicle. But whether such a vague allegation without giving the date and time or at least the probable time at which such incident took place, shall be enough to take cognizance of the offences, is to be considered. When the allegations regarding the commission of the offences are vague, the same shall be a ground for quashing the criminal proceedings holding that the Judicial Magistrate, who has taken cognizance of the offence had not applied his mind before taking cognizance of the offence. In this case, the relevant averments in the complaint are extracted hereunder for better appreciation: VERNACULAR (TAMIL) PORTION DELETED 11. Though a clear account of the alleged occurrence has been made in the complaint, it does not contain the date and time of the occurrence. In the sworn statement of the respondent recorded by the learned Judicial Magistrate also such particulars are missing. Though a clear account of the alleged occurrence has been made in the complaint, it does not contain the date and time of the occurrence. In the sworn statement of the respondent recorded by the learned Judicial Magistrate also such particulars are missing. Therefore, this court has to come to a conclusion that the particulars necessary for taking cognizance of the offence have not been furnished in the complaint. The complaint itself is inherently defective in so far as it does not state the date and time at which the occurrence took place. Therefore, this court has to accept the contention of the learned counsel for the petitioner that there was no application of mind by the learned Judicial Magistrate in taking cognizance of the offences based on the private complaint of the respondent. The very fact that the respondent has made such vague allegations without furnishing the date and time at which the occurrence took place, will show that the exercise of the right of taking possession of the vehicle regarding which the financier/owner has been sought to be given a criminal colour by lodging a complaint containing vague and incorrect allegations. If at all it is true that the petitioner had paid the past instalments up to the end of November 2005 including interest and penal interest and the financier had released the vehicle accepting such payments, it would be highly improbable that the financier would have again seized the vehicle within the month of January 2006. 12. On the other hand, there are materials produced by the petitioners to the effect that the respondent who was not in a position to pay the instalments, in order to avoid further loss, had agreed for transferring the vehicle to one Arularasan after receiving a substantial amount, out of which alone the dues of the defaulted instalments with interest were paid and that the said Arularasan after making the payment of the entire amount due to the financier got the vehicle transferred in his name and got the endorsement of hire purchase agreement cancelled. As against the same, the petitioner has come forward with vague allegations of theft, extortion, cheating and intimidation without furnishing the necessary particulars of date and time of commission of such offences. As against the same, the petitioner has come forward with vague allegations of theft, extortion, cheating and intimidation without furnishing the necessary particulars of date and time of commission of such offences. The complaint, as rightly submitted by the learned counsel for the petitioners, is an attempt to convert a civil dispute into a criminal case and hence an abuse of process of court. Besides the same, as pointed out supra, there is non-application of mind by the learned Judicial Magistrate in taking cognizance of the offences and issuing process to the petitioners. 13. For all the reasons stated above, this court comes to the conclusion that the petitioners have made out a clear case for quashing the criminal proceedings instituted against them on private complaint in C.C.No.9/2006 on the file of the learned Judicial Magistrate No.1, Namakkal. 14. In the result, this petition is allowed and the criminal proceedings initiated against the petitioners in C.C.No.9/2006 on the file of the learned Judicial Magistrate No.1, Namakkal is quashed. Consequently, all the connected miscellaneous petitions are closed.