IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 WP(C).No. 21031 of 2004(D) -------------------------- CC.154/2001 of J.M.F.C.-I,KANJIRAPPALLY .................... PETITIONER(S): --------------- 1. ANANDA RAJ S., MANAGER, HEERA FINANCE SERVICES LIMITED, NO.1, `A' WING, 7TH FLOOR, 602, ANNA SALAI, CHENNAI. 2. K.A.JOSEPH @ KAYOOR APPACHAN, KANDATHIL VEEDU, PALLIKKATHODU, KOTTAYAM DISTRICT. BY ADV. SRI.JOY GEORGE RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JOSE ANTONY, S/O. ANTONY, PUTHENPURACKAL, CHENAPPADY P.O., ERUMELI SOUTH VILLAGE, KOTTAYAM. ADV. SRI.M.J.THOMAS FOR R2 PUBLIC PROSECUTOR SRI.SHYSON P.MANGUZHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1: True copy of the complaint filed by the 2nd respondent. Ext.p2: True copy of the hire purchase agreement dated 30.5.1997. Ext.P3: true copy of the final report dated 8.2.2001 of the Sub Inspector of Police, Kanjirappally. Ext.P4: True copy of the protest complaint dated 14.3.2001 filed by the 2nd respondeont before the Judicial First Class Magistrate Court-I, Kanjirappally. Ext.P5: True copy of the order of the Crl.M.C. 3184/01 dated 6.2.2004. Ext.P6: True copy of the discharge petition dated 1.3.2004 Ext.P7: A true copy of the order in C.C. 154/01 dated 9.6.2004 of the Judicial First Class Magistrate Court-I, Kanjirappally. //True copy// HARUN-UL-RASHID, J. ---------------------------------------- W.P.(C). No.21031 of 2004 ---------------------------------------- Dated this the 27th day of January , 2009 JUDGMENT The accused Nos. 1 and 2 in Crime . No. 300/2000 on the file of the Kanjirapally Police Station and C.C. No.154/2001 on the files of the Judicial First Class Magistrate Court-I , Kanjirappaly are the petitioners herein. The writ petition is filed by the petitioners for quashing Ext.P4 private complaint filed by the 2nd respondent herein. The 2nd respondent lodged a private complaint against the petitioners herein alleging that the vehicle which is purchased under hire purchase agreement with the accused, was taken away by the henchmen of the accused by force. The private complaint was filed under Section 190 of the Code of Criminal Procedure alleging offence punishable under Section 420 and 120 B of the Indian penal Code before the J.F.C.M.-I, Kanjirappally. Ext.P1 is the Original complaint filed by the 2nd respondent herein. The same was forwarded to the police under Section 156 (3) of the Code of Criminal Procedure for investigation and report. The Police after detailed investigation filed a final report stating that the accused in the case have not committed any criminal offence at all and the case is a false one and may be withdrawn from the court file. Ext.P3 is the refer report W.P.(C) No.21031 of 2004 -2- When getting knowledge about the filing of the refer report by the police before the J.F.C.M.-I, Kanjirappally, the 2nd respondent filed a protest complaint. Ext.P4 is the copy of the said protest complaint. The petitioners filed a petition under Section 482 of the I.P.C seeking to quash the protest complaint . They submitted that there is no wrongful gain had been made by them nor any wrongful loss had been occurred to the 2nd respondent that the 2nd respondent cannot be said to be legally entitled for the vehicle unless and until he pays the last dues to the finance company. It is also submitted that the 2nd respondent had no case that he had fully paid the amount and that there is no wrongful loss as per the terms of the agreement of hire purchase of the vehicle, the finance company unless there is full payment under the hire purchase agreement and thereafter to get the vehicle registered in the name of the 2nd respondent deleting the endorsement of hire purchase. The petitioners herein filed Crl.M.C. No. 3184/2001 before this Court for quashing the complaints filed by the 2nd respondent before the court below. This court by judgment dated 6.2.2004 issued certain directions to the learned Magistrate. In the said judgment it was stated that this Court permitted the petitioners to produce whatever documents and materials which they intend to rely and plead for a discharge. This court also directed that in case such a plea is raised, that plea shall be W.P.(C) No.21031 of 2004 -3- considered and disposed of in accordance with law by the learned Magistrate before the starting of the trial of the main case. On the basis of the directions issued by this Court, the petitioners filed a discharge petition along with a copy of the hire purchase agreement. Ext.P6 is the copy of the said discharge petition. The learned Magistrate vide Ext.P7 order dismissed the discharge petition. The case of the accused is that the vehicle was repossessed by the finance company as per the hire purchase agreement and the same will not constitute any offence. The court below found that in the party array of the complaint the 1st petitioner has styled himself as the Manager of Heera Finance Services Limited, Chennai. But the 1st petitioner has been shown in his residential address. A perusal of the complaint reveals that the 2nd respondent has not described the 1st accused as the Manager of the firm and on the other hand, he has been described only as an agent of the finance company. The Learned Magistrate also observed that the accused do not figure as parties in the hire purchase agreement which was entered into between the 2nd respondent and the finance company and the finance company is actually not a party in the original case. So the learned Magistrate concluded that the accused are not liable to be discharged under the shelter of the agreement alone because the accused are not parties in the agreement while the finance company is not a party in the original case. W.P.(C) No.21031 of 2004 -4- It is worthwhile to note that in Ext.P1 complaint the 1st petitioner is arrayed as a representative of the finance company . In clear terms it is pleaded that the 1st petitioner is the agent of the finance company and that the hire purchase agreement entered into at the office of the 2nd petitioner . In Ext.P3 refer report which was submitted after the detailed investigation the police reported that the incident alleged in the complaint did not take place and therefore the accused are falsely implicated in the complaint. Taking into account the police refer report and the further fact that the hire purchase agreement permit the finance company to repossess the vehicle when there is violation of the agreement conditions, the averments in the complaint that the petitioners committed offence under 420 and 120 B is not appealing. The reasons stated for not discharging the accused on the basis of facts in Ext.P6 representation filed under Section 245 of the Criminal Procedure Code, cannot stand . Therefore Ext.P7 order passed by the Judicial First Class Magistrate -I, Kanjirappaly is quashed. This writ petition is allowed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- W.P.(C) No. 21031 of 2004 ---------------------------- JUDGMENT 27th January , 2009