IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 14TH AUGUST, 2008 / 23RD SRAVANA, 1930 Crl.MC.No. 4954 of 2002 - D (CC.1040/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUV) .................... PETITIONER: ---------------- V.A.MOHAMMED ALI, SON OF V.N.ABDUL RAHIMAN, VALAVAKUDY HOUSE, CHOWWARA, ALWAYE. BY ADV. SRI.V.G.ARUN RESPONDENT: ----------------- 1. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. ADDL.R 2. NATIONAL SMALL INDUSTRIES CORPORATION LTD., S.67, GCDA COMMERCIAL COMPLEX, MARINE DRIVE, SHANMUGHAM ROAD, COCHIN -31, REPRESENTED BY THE BRANCH MANAGER. Addl.second respondent is impleaded as per order on Crl.M.Appl.No.3815 of 2007 dated 14.8.2008. R1 BY PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI SRI.MILLU DANDAPANI FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.M.C.No. 4954 of 2002 D --------------------------------------------- Dated this the 14th day of August, 2008 O R D E R The sole accused in C.C.No.1040 of 2000 of the court of the Judicial First Class Magistrate-I, Aluva, is the petitioner in the above Crl.M.C., who approached this Court with a prayer to quash Annexure IV final report and all further proceedings in the above case. 2. The case of the petitioner can be summarised as follows:- The petitioner has started a small tyre retreading unit at Nedumpassery by name 'Orient Tyres' with the financial assistance from the National Small Industrial Corporation (in short 'NSIC') on the basis of a hire purchase agreement entered into between the petitioner and the said Corporation. Annexure-II is the hire purchase agreement dated 29.1.1983. According to the petitioner, he had paid one-third value of the machineries to the N.S.I.C. at the time of hire purchase agreement and thereafter, he had remitted two annual instalments as envisaged by the terms of Annexure-II agreement. It is the Crl.M.C. NO. 4954 of 2002 :-2-: case of the petitioner that due to some financial problem and since the petitioner had met with a serious road accident and as he was hospitalised, he was not able to run the industry properly, consequently, he had to close down the same. Thus, according to the petitioner, he could not effect the repayment of the loan amount as per the terms of the agreement. As there was no repayment of the instalment due to the Corporation, the Corporation preferred a complaint before the court below which was sent to the Chengamanadu Police Station under Section 156(3) of the Code of Criminal Procedure wherein crime No.339 of 1999 was registered and finally they have filed Annexure IV report against the petitioner for the offence under Section 406 I.P.C. whereupon the court took cognizance and instituted C.C.No.1040 of 2000 before the court below. It is the above case sought to be quashed in these proceedings. 3. I have heard the counsel for the petitioner as well as counsel for the second respondent and also the Crl.M.C. NO. 4954 of 2002 :-3-: Public Prosecutor for the first respondent. 4. Learned counsel for the petitioner, reiterating the averments contained in the Crl.M.C., submits that going by Annexure-II agreement, no criminal action would lie against the petitioner and the remedy of the second respondent lies elsewhere. Learned counsel for the petitioner argued that the criminal action is barred by limitation under the provisions of the Code of Criminal Procedure. Therefore, the court below has committed wrong in taking cognisance as there is no ground made out to attract any of the ingredients of Section 406 I.P.C. and also the action is barred by limitation. 5. Per contra, learned counsel for the additional second respondent submits that even going by the terms of Annexure II agreement, it can be seen that the petitioner/accused has no right to dispossess the machinery purchased by utilising the money advanced by the second respondent-Corporation and in violation of Crl.M.C. NO. 4954 of 2002 :-4-: the terms of the agreement. Therefore, Section 406 of I.P.C. is attracted and therefore, the court below is fully justified in taking cognisance against the petitioner under Section 406 of I.P.C. It is also submitted by counsel for the second respondent that even though the period of the hire purchase agreement is for 5½ years, for taking criminal action, the period fixed by the agreement is not at all relevant. 6. I have carefully considered the rival contentions advanced by both the counsel and also the Public Prosecutor. I have also perused the materials available on record. 7. As stated earlier, counsel for the petitioner submits that going by the Police report and especially in the light of Annexure II hire purchase agreement, it can be seen that the essential ingredients are not attracted even if the allegations are taken as true. Referring to sub-clause (ix) of clause (2) of Annexure II agreement, the counsel submits that no criminal action will lie Crl.M.C. NO. 4954 of 2002 :-5-: against the petitioner and if the second respondent has got any grievance with respect to the violation of any contractual obligation, his remedy lies elsewhere and not to initiate criminal proceedings against the petitioner. Learned counsel for the second respondent, also relying upon the very same clause, submits that criminal action would lie and the same is further substantiated by the investigation conducted by the Police. As I am not inclined to interfere and to come to a conclusion, based upon the above rival contention, it may not be proper on my part in making any observation or finding on merits regarding those aspects since such finding would adversely affect either the prosecution or the accused. 8. Regarding the limitation, the materials available on record are not sufficient to arrive into a conclusion whether the prosecution is barred by limitation or not. Admittedly, the agreement was dated 29.1.1983 and the period of such agreement was for 5½ Crl.M.C. NO. 4954 of 2002 :-6-: years. In view of Section 469(1) of the Code of Criminal Procedure, the period of limitation in relation to an offence shall commence from the date mentioned under the above section. As per sub-clause(a), the commencement of period of limitation will start from the date of the offence and as per sub-clause (b), where the commission of offence was not known to the person aggrieved by the offence or to any Police Officer, the limitation will commence from the first day on which the said offence comes to the knowledge of such person or to any Police Officer whichever is earlier. Sub-clause(c) of Section 469(1) is not attracted and applicable in the present case. 9. But, in the light of the facts and circumstances involved in the case, I am of the view that there is some substance in the submission of learned counsel for the petitioner regarding the limitation. The materials available on record before this Court are not sufficient to come to a definite finding regarding the limitation. As Crl.M.C. NO. 4954 of 2002 :-7-: rightly pointed out by learned counsel for the petitioner, if there is any delay, it is for the investigating agency to offer explanation and it is up to the court for taking cognisance after having satisfied with such explanation, if any or otherwise, after considering the facts and circumstances involved in each case, the court concerned can take cognisance by condoning the delay. But the materials available on record now before this Court are not sufficient to consider the above aspects. Therefore, the question of limitation can be raised by the petitioner before the court below at appropriate stage and if such a question is raised, the court shall take a decision on such preliminary issue. It is open to the court below to take a decision upon such preliminary question on the basis of materials and on hearing the parties concerned. 10. In the light of the above facts and circumstances and the discussion, this Crl.M.C. is disposed of with the observation that the petitioner is Crl.M.C. NO. 4954 of 2002 :-8-: free to take the preliminary question regarding the limitation and also the plea for discharge at appropriate stage of the proceedings of the court below. 11. The learned counsel for the petitioner submits that he moved this Court at a time when a non- bailable warrant was issued against the petitioner and this Court has stayed the execution of the warrant. Therefore, the counsel prayed that the warrant may be ordered to be recalled. 12. On the basis of the allegation contained in the Crl.M.C. and the submission made by learned counsel for the petitioner, it appears that the petitioner was out of station connected with his employment and he could not appear before the court below or before the Police during investigation. Therefore, the petitioner is directed to appear before the court below with a petition to recall the warrant and for bail. On such appearance and on moving petitions, the court below is directed that the same shall be considered on the same date. Since Crl.M.C. NO. 4954 of 2002 :-9-: the investigation is over and final charge has already been filed, the custodial interrogation of the petitioner is not necessary. Therefore, the petitioner is directed to appear before the court below within two weeks from the date of receipt of a copy of this order. The Crl.M.C. is disposed of accordingly. V.K.Mohanan, Judge MBS/ Crl.M.C. NO. 4954 of 2002 :-10-: V.K.MOHANAN, J. -------------------------------------------- Crl.M.C.NO. 4954 OF 2002 -------------------------------------------- O R D E R DATED: 14-8-2008 Crl.M.C. NO. 4954 of 2002 :-11-: