IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.02.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM CRL.O.P.No.3241 of 2007 and M.P.No.1 of 2007 J.Edith Mangayarkarasi ...Petitioner -Vs- Dinesh Kumar Chordia ...Respondent Criminal Original Petition filed under Section 482 of Criminal Procedure Code to call for the records in C.C.No.9931 of 2006 on the file of III Metropolitan Magistrate, George Town, Chennai-1 and quash the same in so far as the complaint against the petitioner/second accused is concerned. For Petitioner : Mr.C.K.M.Appaji For Respondent : Mr.K.Ramesh Amicus Curaie O R D E R The petitioner who is the 2nd accused in C.C.No.9931 of 2006 on the file of III Metropolitan Magistrate, George Town, Chennai has come forward with this petition to quash such proceedings against him. 2.The complaint has been filed by the respondent herein alleging that the complainant is a financier providing hire purchase finance facility and this petitioner is a guarantor to the vehicle loan availed of by the 1st accused. The hire purchase agreement was entered into for a sum of Rs.1,26,250/- and the 1st accused/borrower was required to pay the amounts due in 15 monthly installments. Failure to effect payment entailed certain consequences as mentioned in the hire purchase agreement. https://hcservices.ecourts.gov.in/hcservices/ 3.The complaint alleges that both accused have committed default in payment. The complainant demanded repayment or in the alternative surrender of the vehicle. Both accused had failed to meet the demand, were absconding and the vehicle was not traceable. The complaint further alleges that on enquiry, he came to know that the said vehicle had been sold to a third party and the same has been dismantled and sold as scrap. As the police had failed to register a case on his complaint, the present case has been filed alleging that both the accused sold the vehicle to a third party without the knowledge of the complainant by fabricating and creating false documents. There is a further allegation of threat held out by the accused when the complainant questioned them on their changing the original parts of the vehicle. 4.The learned counsel for the petitioner submitted that the petitioner herein was only a guarantor to the loan availed of by the 1st accused. In fact, the petitioner herein had availed of an independent loan from the complainant for purchase of vehicle and had effected repayment but the complainant making unjust demands had failed to transfer the ownership of the vehicle to the petitioner. Consequently, the petitioner had been driven to file a suit in O.S.No.5600 of 2006 on the file of I Assistant City Civil Court, Chennai seeking a mandatory injunction directing the defendant to hand over the R.C. book to the plaintiff relating to Maxi Cab Van bearing Registration No.TN-74-Y-2125 and other documents relating to the vehicle and a blank cheque and promisory note signed by the petitioner/accused. It is only after the filing of such suit that the respondent has preferred the complaint falsely arraying this petitioner as the 2nd accused. The learned counsel for the petitioner urges malafides of the respondent in preferring the complaint and that the proceedings in the case is liable to be quashed. 5.Since there was no representation on behalf of the respondent, this Court appointed Mr.K.Ramesh, Amicus Curaie as counsel for the respondent. 6.The learned Amicus Curaie in response to the submissions of the learned counsel for the petitioner submitted that this petitioner equally is liable along with the 1st accused for repayment of the loan and that when the complaint informs of the vehicle having been sold and the proceeds having been misappropriated, the truth or otherwise of the allegation would be a matter for trial and this Court would not interfere at this stage. 7.I have considered the rival submissions. https://hcservices.ecourts.gov.in/hcservices/ 8.Admittedly, the petitioner is only a guarantor to a hire purchase agreement. There is much force in the submission of the learned counsel for the petitioner that the respondent/complainant was acting with malice, particularly against him. It is seen that a suit has been filed by the petitioner against the respondent/complainant and it is only thereafter that the present complaint has been filed. Suit has been preferred in July 2006 and the complaint has been filed in September 2006. 9.The very complaint informs that on enquiry the complainant came to know that the said vehicle had been sold to the third party and the same has been dismantled and sold as scrap. Of course, this position is disputed by the learned counsel for the petitioner. 10.Be that as it may, the complaint is deliciously vague as regards the role played by this petitioner in the alleged sale of the vehicle. When the complaint itself informs that he came to know of sale of vehicle on enquiry, nothing is stated about what was the enquiry made and how and from whom such information was received by the complainant. In the circumstances of the case, this Court is of the firm view that the allegations are absolutely bald, would not make out any case against the petitioner herein and that the action in preferring the complaint against the petitioner is an action in malice which ought not to be permitted. 11.The Criminal Original Petition is allowed and the proceedings in C.C.No.9931 of 2006 on the file of III Metropolitan Magistrate, George Town, Chennai shall stand quashed. Consequently, the connected miscellaneous petition is closed. 12.This Court placed on record the service rendered by Mr.K.Ramesh, Amicus Curaie and directs the State Legal Services Authority to pay a sum of Rs.2,500/- to him towards his fee. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. gm To 1. The III Metropolitan Magistrate George Town, Chennai-1 https://hcservices.ecourts.gov.in/hcservices/ 2. The Member Secretary Tamilnadu State Legal Service Committee High Court, Madras 1 cc to M/s. C.K.M. Appaji, Advocate, SR.7251 1 cc to M/s. K. Ramesh, Advocate, SR. 7059 CRL.O.P.No.3241 of 2007 and M.P.No.1 of 2007 SSK (CO) kk 9/3 https://hcservices.ecourts.gov.in/hcservices/