IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 Crl.L.P..No. 544 of 2011() -------------------------- CC.108/2008 of J.M.F.C.-II, SULTHANBATHERY .................... (S): PETITIONER/COMPLAIANANT ------------------------------------------- AUGUSTINE, AGED 49 YEARS, S/O. ULAHANNAN, PARAKKAL HOUSE, MANGALAM KUNNU, KARYAMBADI, MUTTIL NORTH VILLAGE, VYTHIRI TALUK. BY ADV. SRI.GEORGE SEBASTIAN RESPONDENT(S): ACCUSED 1 TO 3 AND STATE --------------------------------------- 1. VISHALAKSHY, W/O. VASU, MALLIKKARA HOUSE MANGALAM KUNNU, KARYAMBADI, MUTTIL NORTH VILLAGE, VYTHIRI TALUK. 2. SANTHOSH, S/O. VASU, POLICE DRIVER, VENGARAMOODU POLICE STATION, THIRUVANANTHAPURAM. 3. ANEESH, S/O. VASU, MALLIAKKARA HOUSE, MANGALAM KUNNU, KARYAMBADI,MUTTIL NORTH VILLAGE, VYTHIRI TALUK. 4. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 25/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. L.P. No.544 of 2011 -------------------------------------------- Dated this the 25th day of July, 2011 ORDER The petitioner herein is the complainant in C.C.No.108/2008, which is a case instituted alleging offence u/ss. 406 and 420 of IPC, but by judgment dated 15.11.2010 in the above case, the court of Judicial Magistrate of First Class-II, Sulthan Bathery acquitted the accused u/s.248(1) of Cr.P.C. Therefore, the petitioner seeks special leave of this court u/s.378 (4) of Cr.P.C to file an appeal against the above order of acquittal. 2. The case of the petitioner/complainant is that accused 2 and 3 approached the complainant for the sale of vehicle bearing Reg. No. KL.12B/4096 mini bus is owned by them and told him that the vehicle is not in a running condition and also there are some liabilities connected with the above vehicle and on the basis of the representation of the accused, the complainant had purchased the said vehicle and carried out the entire repairing work to make the bus in a running condition and he had also cleared all liabilities. According to the complainant, the accused had also promised him that they would Crl. L.P. No.544 of 2011 2 meet any additional expenses which the complainant would incurred to clear the liability and towards repairing charges and the value of the vehicle was fixed as Rs.4,00,000/- including the arrears due with respect to the vehicle and it was agreed that the original document pertaining to the vehicle would be handed over the complainant on making the vehicle in a running condition. It is the further case of the complainant that he had spent a total sum of Rs.5,20,450/- to make the vehicle in a running condition in terms of the agreement. It is also the case of the complainant that on completing the repairing work the complainant, demanded a sum of Rs.96,450/- additional expenses incurred by him and also for the original documents but the accused did not pay the amount and hand over the documents. The allegation continues to the effect that in the meanwhile A3 and A4 approached the complainant and made him to believe that he had to face if the vehicle operating in the same route allotted to the vehicle and further the accused induced A5 to the complainant for the sale of the vehicle for a total consideration of Rs.3,05,000/-. According to the complainant, he had received a sum of Rs.1,85,000/- towards the part of sale consideration and the balance amount was agreed to pay on or before 30.1.2007. Thus, according to the complainant though he had approached Crl. L.P. No.544 of 2011 3 A1 to A4 for the original document for giving the same to the 5th accused so as to get balance sale consideration, A1 to A4 refused to hand over the original documents. Thus, according to the complainant, on his enquiry it is revealed that A5 is the brother of the 1st accused and maternal uncle of a1 to A4. It is also the version of the complainant that he learned that the 1st accused borrowed amount by keeping documents of the vehicle as security and vehicle is now being operated in the same route allotted to the vehicle. Thus, according to the complainant, A1 to A5 with common intention conspired and induced the complainant to enter into a sale agreement and they have cheated the complainant by retaining the original documents of the vehicle and not making the payment to the complainant as agreed. Therefore, according to the complainant, the accused has committed the offences punishable u/s.406 and 420 of IPC. 3. On appearance of the accused charge was framed against them for the offence u/ss. 406 and 420 of IPC, but they denied the same. Further, during the trial of PWs.1 to 6 were examined and Exts.P1 to P11 were marked from the side of the prosecution. From the side of defence Ext.D1 to D9 were marked. Considering the evidence and materials and on the basis of the rival pleadings, the learned Magistrate framed 3 Crl. L.P. No.544 of 2011 4 points for its consideration. After consideration of the entire evidence and materials, the trial court has found that the complainant has failed to establish the ingredients of Section 420 and Section 406 of IPC. It is specifically found that if there is any violation of their agreement that is a subject matter of civil dispute and no criminal liability can be fastened against the accused u/s.420 of IPC. The trial court has also found that there is no evidence or materials to show that the person with whom entrusted the property, dishonestly misappropriate or convert the same dishonestly. It is also found that as per Ext.P1 document the vehicle in question was sold to the complainant for a consideration and the same was complete in all respect. It is also found that thereafter the vehicle was sold to A5 by the complainant and as such there is no entrustment of property by the complainant to the accused and therefore, Section 406 of IPC is not attracted. It is on the basis of the above findings, the learned Magistrate acquitted the accused u/s.248(1) of Cr.P.C. 4. Sri. George Sebastian, learned counsel for the petitioner vehemently submitted that the vehicle was subsequently sold to A5 on the basis of the inducement of the accused and on their representation that if the vehicle is operated in the allotted route the complainant has to face heavy loss. It is also the submission Crl. L.P. No.544 of 2011 5 of the learned counsel that the intention of the accused is clear from the fact that the accused has not disclosed the relationship of A5 and A1 and other accused. According to the learned counsel it is proved during the trial that the vehicle being operated profitably in the same route and the said fact is against the representation made by the accused and hence, the intention of the accused are clear and therefore, the ingredients of Section 420 and 406 are established, but the learned Magistrate on a wrong notion acquitted the accused. 5. In the light of the facts and circumstances and evidence referred to above, and the contention raised by the counsel for the petitioner the question to be considered is whether the petitioner has succeeded in making out a case so as to grant special leave u/s. 378(4) of Cr.P.C to file an appeal against the judgment dated 15.11.2010 in CC No.108/2008 of the court of Judicial Magistrate of First Class-II, Sulthan Bathery. Though the learned counsel for the petitioner advanced several contentions which I indicated earlier, I am not inclined to sustain those contentions. From the evidence available on record and from the averments of the complainant and in the light of the argument advanced by the learned counsel it is crystal clear that the vehicle in question was sold to the complainant by A1 the Crl. L.P. No.544 of 2011 6 registered owner of the vehicle as per Ext.P1 agreement dated 21.6.2006. The right and liabilities connected with the said vehicle are governed by the terms and conditions that contained in Ext.P1. It is also the admitted case of the complainant that as per the terms of the agreement the complainant is bound to clear all the dues connected with the vehicle and to make all the repair work so as to bring the vehicle in a roadable condition. It is also the admitted case that the accused has already offered to meet the additional expenses, if any. According to the complainant the accused has paid certain amount towards the additional expense. Therefore, if the complainant has got any grievance regarding the non-compliance of terms and conditions that contained in Ext.P1, the only remedy available to him is to sue the accused for the same. As the dealings are governed by Ext.P1 agreement, on the basis of the sale is completed, it cannot be said that the accused had maintained any dishonest intention at the time of Ext.P1 agreement. Hence Sn.420 is not attracted. 6. It is also beyond dispute that subsequently the complainant has sold the vehicle to A5 as per Ext.P8 agreement dated 25.10.2006 that too for a total consideration of Rs.3,05,000/- out of which the complainant has received Rs.1,85,000/-. In this case also the complainant has no case that Crl. L.P. No.544 of 2011 7 the accused had suppressed any fact with respect to the vehicle in question. Going by the evidence and averments of the complainant it can be seen that though the complainant has spend a total sum of Rs.5,20,450/- towards the maintenance and clearance of the liability of the vehicle, he had entered into the agreement with A5 only for a sum of Rs.3,05,000/-. As long as there is no contention or challenge against Ext.P1 and P8, as rightly held by the learned Magistrate it cannot be said that vehicle entrusted with the accused and they have misused or converted the same for their own purpose. So going by the judgment of the trial court and evidence and materials on record, I am of the view that the petitioner/appellant has miserably failed to establish that the accused has maintained intention and dishonestly induced the complainant and thereby to cheat the complainant. The evidence on record further shows that after the sale of the vehicle in favour of the complainant as per Ext.P1 agreement, and the vehicle was in the possession of the complainant and virtually he was the owner of the vehicle from 21.6.2006 onwards. The further evidence and materials shows that the vehicle was subsequently sold by the complainant to A5 as per Ext.P8 agreement and the vehicle was in the absolute possession and ownership of A5 right from 25.10.2006. If that Crl. L.P. No.544 of 2011 8 be so, it cannot be said that the accused has committed the offence u/s.406 of IPC. Therefore, I am of the view that the learned Magistrate is perfectly justified in his findings and acquitting the accused for the charges leveled against them u/s.406, 420 of IPC and as such no legal or factual question are yet to be settled in appeal and therefore, there is no scope for interfering in the order of acquittal even in case an appeal is entertained. Therefore, according to me, the petitioner is miserably failed to make out a case for the grant of special leave u/s. 378(4) of Cr.P.C. In the result, there is no merit in the leave petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE. pm/