IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 Crl.MC.No. 1802 of 2006() ------------------------- CMP.3555/2005 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... PETITIONER(S): -------------------------- K.VINEESH, S/O.GOVINDAN NAIR, NADUKANDY HOUSE, KARIYAD P.O., MEPAYOOR VIA, KOZHIKODE DISTRICT, WHO IS THE POWER OF ATTORNEY HOLDER OF S.PRABHADEVI. BY ADV. MR.C.R.SIVAKUMAR RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PERAMBRA POLICE STATION, PERAMBRA, KOZHIKODE DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. K.SHIBU, S/O.BALAN, KOMMINIYOTTU HOUSE, PERAMBRA P.O., KOZHIKODE DISTRICT. R1 BY PUBLIC PROSECUTOR MR. B.VINOD R2 BY ADV.SMT.NIDHI BALACHANDRAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/08/2009 ALONG WITH CRMC NO. 1180 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1802 of 2006 & Crl.M.C.No.1180 of 2009 -------------------------- COMMON ORDER Fourth accused in C.M.P.No.3140/2005 on the file of Judicial First Class Magistrate's Court-II, Perambra filed Crl.M.C.No.1180/2009 under Section 482 of Code of Criminal Procedure to quash Annexure-6 petition filed by the second respondent alleging that fourth accused committed offences under Sections 120B and 379 of Indian Penal Code. Case of the second respondent is that he is the registered owner of Mahindra Jeep KL-11/D 106 and he had availed a loan of Rupees One lakh from the petitioner/fourth accused as per a hire purchase agreement and as per the agreement, he has to pay monthly instalments and he could not pay some of the instalments and while so, on 3.8.2005, when he had gone to Panthirikkara Branch of Perambra Regional Co-operative Bank, after parking the jeep CRMC 1802/06&1180/09 2 near the Bank, accused 1 and 2, who are police constables in mufti dress, came there and obtained the key of the jeep forcibly from the driver Ramachandran and without the consent or permission of the second respondent or his driver, took away the jeep and later, it was found kept at the Perambara Police Station premises. When second respondent contracted the police station, he was advised to contact the Circle Inspector and Circle Inspector was also not prepared to disclose the true facts and second respondent could gather information that the vehicle was taken at the instance of the petitioner/financier as well as the third accused, the agent of the financier and according to the second respondent, neither the financier nor the agent had furnished any complaint to the police. Second respondent filed C.M.P.No. 2971/2005 before Judicial First Class Magistrate's Court-II, Perambra to appoint an Advocate Commissioner to inspect the police station premises and to give a report. Advocate Sri.M.K.Manoj CRMC 1802/06&1180/09 3 Kumar, who was appointed as the Advocate Commissioner, inspected the police station premises and found the vehicle kept there and reported it to the court. It is contended that vehicle was stolen pursuant to the conspiracy between the four accused and thereby they committed offences under Sections 120B and 379 of Indian Penal Code. 2. Second respondent filed C.M.P.No.3555/2005 under Section 91 of Code of Criminal Procedure for directing production of the jeep before the court. An order was passed on 4.2.2006 directing production of the jeep before the court. Crl.M.C. No.1802/2006 was filed to quash the said order. Crl.M.C.No.1180/2009 is filed to quash Annexure-6 complaint and Annexure-7, the CMP in which the order challenged in Crl.M.C.No.1802/2006 was passed. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Learned counsel appearing for the petitioner argued that when the owner of the vehicle, in CRMC 1802/06&1180/09 4 enforcement of the clause in the hire purchase agreement, seizes the vehicle, an offence under Section 120B or 379 of Indian Penal Code is not attracted. When a complaint under Section 482 of Code of Criminal Procedure is to be quashed, the question to be considered is whether the allegations in the complaint make out the alleged offence or not. Correctness or otherwise of the allegations in the complaint, with reference to the documents produced by the petitioner, is not possible, as a factual finding, which could be arrived at after appreciation of evidence, is not to be contemplated in a petition filed under Section 482 of Code of Criminal Procedure. 5. On hearing the learned counsel, I cannot agree with the submission that powers under Section 482 are to be invoked to quash the complaint. As it is a private complaint, being tried as a warrant trial otherwise than on a police report, petitioner is entitled to seek an order of discharge as provided under Section 245 of Code of Criminal CRMC 1802/06&1180/09 5 Procedure before the Magistrate. Petitioner is entitled to raise all the contentions raised herein before the Magistrate. Magistrate is directed to dispose the case expeditiously. 6. Under Annexure-4 order dated 4.2.2006 in C.M.P.No.3555/2005, learned Magistrate directed to produce the vehicle before the court. Annexure-4 order was stayed by this Court. In such circumstances, I do not find it necessary to interfere with Annexure-4 order. Learned Magistrate not to insist for the production of the vehicle, till the claim for discharge by the petitioner is decided. Petitions are disposed accordingly. 6th August, 2009 (M.Sasidharan Nambiar, Judge) tkv