IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 Crl.MC.No. 1417 of 2011(D) ------------------------- CC.168/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... PETITIONER(S): ACCUSED ---------------------- JAYAN, AGED 40 YEARS, S/O.CHELLAYYA NADAR, GRACE VILLA, NEYYATTINKKARA, THIRUVANANTHAPURAM. BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): STATE AND DEFACTO COMPLAINANT -------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EBY GEORGE, AGED 41 YEARS, S/O.LEELAMMA GEORGE, 2/526, AMBALA CHALAYIL HOUSE, KANNADY P.O., PALAKKAD. R1 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN R2 BY ADV. SRI.T.K.SANDEEP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08/12/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1417 of 2011(D) APPENDIX PETITIONERS ANNEXURES: ANNEXURE 1: COPY OF COMPLAINT DATED 13.12.2007 BEFORE JUDICIAL FIRST CLASS MAGISTRATE-I, PALAKKAD. ANNEXURE II: COPY OF FIR DATED 8.12.2009 IN CRIME NO:381/2009 OF KIZHUMANDAM POLICE STATION ANNEXURE III: COPY OF FINAL REPORT DATED 31.03.2010 IN C.C.NO:168/2010 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE-I, PALAKKAD RESPONDENTS ANNEXURES: NIL //TRUE COPY// P.A.TO JUDGE JJJ N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. No: 1417 OF 2011 (D) ------------------------------------------ Dated this the 8th day of December, 2011 O R D E R The accused in C.C. No:168/2010 of JFCM-I, Palakkad, against whom cognizance was taken by the Court below on the basis of a final report filed by the police for offences under sections 406, 420 and 468, has come to this Court for invoking the jurisdiction of this Court under section 482 Cr.P.C. to quash the proceedings before the Court below in the aforesaid case. 2. The learned counsel for the petitioner submits that on a reading of the final report itself it can be found that no ingredients of any of the offences mentioned earlier have been made out and that if at all any action was to be taken that was to be had before the Civil Court only. According to the petitioner simply by using words 'dishonestly', 'breach of trust', 'forgery', 'cheating' etc, the Court should not be persuaded to hold that there are sufficient materials to take cognizance of such offences against the accused. Crl. M.C. No: 1417 OF 2011 (D) -2- 3. The lorry in question, belonging to the 2nd respondent, was subject to a hire purchase agreement. R2 sold the said lorry to the petitioner. `.1,35.000/- was paid by the petitioner to R2. An agreement was entered into with respect to that transaction. It was stated that as per the agreement the petitioner was to pay/remit the entire installment due to the financier. There was also a term in the agreement which authorized or empowered the vendor to take possession of the vehicle, in case of failure to remit the installments. The petitioner failed to remit the installments properly. The financier was stated to have initiated action against the 2nd respondent. 4. It was contended by the 2nd respondent that as per the terms of the contract, before discharge of the entire amount due to the financier, the vehicle was not to be sold. But despite such terms prohibiting transfer, the petitioner sold the vehicle to another person and he also failed to Crl. M.C. No: 1417 OF 2011 (D) -3- remit the installments. According to the 2nd respondent the petitioner dishonestly induced the complainant to believe that he would remit the entire installments and that he will not transfer the vehicle and thus obtained the vehicle (lorry) from the 2nd respondent. But contrary to the terms of the agreement, with a view to cause wrongful loss to the vendor and to have wrongful gain to himself, the petitioner transferred possession of the vehicle. 5. The learned counsel for the petitioner would submit that the fact that the vehicle was subject to hire purchase agreement was endorsed in R.C. Books and as such the vehicle, at any time can be seized or taken possession by the financier as per the terms of the hire purchase agreement. The contention that there was criminal breach of trust or that the petitioner has committed forgery, cannot on the face of the complaint lie, the learned counsel for the petitioner submits. The 2nd respondent could Crl. M.C. No: 1417 OF 2011 (D) -4- not show how the offence under section 468 is attracted. 6. The learned counsel for the complainant would submit that where the transfer of the property in the goods is to take place only on fulfillment of the conditions stipulated, it cannot be said that there was an absolute sale but only a conditional sale. Since, in this case the purchaser has not fulfilled the condition regarding remittance of the entire installments due to the financier, the sale does not become absolute and as such the transfer of possession of the vehicle to the accused can only be an act of entrustment and if the trust so created is committed breach of, then certainly the accused can be held liable for offence under section 406 of IPC. 7. The agreement has not been produced here. There is no specific averment to the effect that the vehicle was given custody to the accused only in trust. As such the contention that the offence under section 406 also would lie, Crl. M.C. No: 1417 OF 2011 (D) -5- cannot be sustained. Hence the offences under section 406 and 468 of IPC are not attracted in this case. 8. The only other offence which is worth to be considered is whether offence under section 420 is attracted. According to the complainant, had there been no promise or inducement that the entire installments would be paid by the petitioner/vendee, the vehicle would not have been sold to the petitioner. 9. The learned counsel for the petitioner would submit that there is nothing to show that there was any such inducement or forgery or misrepresentation. There was an out and out sale. The balance consideration was to be paid by way of installments. A few installments were remitted by the petitioner. The fact that because of some financial difficulty the balance installments could not be remitted is no reason to say that there was an element of cheating. Crl. M.C. No: 1417 OF 2011 (D) -6- 10. The learned counsel of the complainant would rely upon the decision in MEDCHL CHEMICALS & PHARMA (P) LTD. V. BIOLOGICAL E.LTD. AND OTHERS reported in (2000) 3 Supreme Court Cases 269, in support of his submission that, exercise of jurisdiction under section 482 Cr.P.C., to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. If on a perusal of the complaint, the Court comes to a conclusion that the allegations levelled in the complaint or charge sheet on the face of it do not constitute or disclose any offence as alleged, then section 482 can be invoked, but the complaint in its entirety will have to be examined on the basis of the allegation made in the complaint. For the purpose of invoking section 482, the Court cannot go into the matter or examine its correctness. Crl. M.C. No: 1417 OF 2011 (D) -7- 11. The learned counsel for the accused would submit that on a reading of the complaint, it can only be found that if at all there was only a mere failure to remit the installments and there is no element of cheating, but that contention cannot be sustained in view of the fact that he did not remit the installment but on the other hand he transferred possession of the vehicle. The contention that there is no material to show that the financier has taken action against the complainant and there is nothing on record to show that the complainant had paid any amount to the financier and as such the offence under section 420 is not attracted is seen to be bereft of any merit. 12. The question is not whether the complainant did pay the amount which, as per the agreement was to be paid by the accused nor is it required to show that the financier had actually initiated action against the complainant. If the amount due to the financier is not paid or realized, the Crl. M.C. No: 1417 OF 2011 (D) -8- complainant can, at any time, expect action against him taken by the financier. It is also submitted by the learned counsel that on going through the complaint, it can only be found that the offence under section 420 has been sought to be added only on the ground that the accused transferred possession of the vehicle but it is only a subsequent conduct from which it cannot be found that there was dishonest inducement or any dishonest intention on the part of the accused at the very inception of the transaction. It is not necessary to probe into those aspects since those are aspects to be decided based on the evidence that may have to be adduced in the case. 13. I find that the petitioner is not entitled to get the charge under section 420 quashed by invoking section 482 of Cr.P.C. In the result this petition is allowed in part. The cognizance taken by the Court below in C.C. No:168/2010 of Judicial First Class Magistrate – I, Palakkad, so far as it Crl. M.C. No: 1417 OF 2011 (D) -9- relates to Sections 406 and 468 of IPC will stand quashed. The request to quash the charge under section 420 is rejected. N.K. BALAKRISHNAN, JUDGE jjj