Santhilal Chorida v. Chinnasamy

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.07.2009CORAM:THE HONOURABLE MR.JUSTICE ARUNA JAGADEESANCrl.OP.No.23698/2006Santhilal ChoridaPetitioner/Accused Vs1.State by Inspector of Police, UlunderpetPolice Station, Villupuram District 2.ChinnasamyRespondents/CamplainantPrayer:- This Criminal Original Petition is filed to call for therecords in CC.No.119/2006 on the file of the Judicial Magistrate,Ulundurpet, Villupuram District and quash the same.For Petitioner:Mr.S.SaravanakumarFor Respondents:Mr.S.Senthil Murugan-R1Mr.P.Sampath Kumar-R2ORDER The Petitioner, against whom the complaint has been filedby the 2nd Respondent under Sections 409, 403, 405, 415, 418 and109 IPC, has filed this Criminal Original Petition, seeking toquash the FIR as well as the charge sheet in CC.No.119/2006 on thefile of the Judicial Magistrate, Ulundurpet, Villupuram District.2. The brief facts, which are necessary for disposal ofthis Criminal Original Petition, are as follows:-The Petitioner is carrying on finance business inUlundurpet, Villupuram District. The 2nd Respondent has availed aloan of Rs.2,30,000/- for purchase of lorry, bearing RegistrationNo.TCM-2714 under hire purchase agreement, as per which, the 2ndRespondent has to pay the installments and in lieu of it, he hashanded over the documents relating the vehicle, such as permit,RC Book and the insurance policy to the Petitioner. According tothe Petitioner, the 2nd Respondent did not pay the loan amountregularly and there is a balance of Rs.60,700/- due from the 2ndRespondent. While so, the 2nd Respondent has given a complaintbefore the District Collector, Villupuram District on 9.8.2004 and https://hcservices.ecourts.gov.in/hcservices/ another complaint before the Superintendent of Police, Villupuramagainst the Petitioner, alleging that though the entire loan amounthas been paid, the Petitioner failed to return the documentsrelating to the vehicle, thus preventing the 2nd Respondent fromplying the vehicle, causing loss and damage to the 2nd Respondent.3. According to the Petitioner, both the authorities closedthe complaint on the ground that it is of civil nature and nocriminal offence was made out. In spite of it, the 2nd Respondenthas filed the private complaint against the Petitioner with anulterior motive in order to wreck vengeance against him.4. The learned counsel for the Petitioner would submitthat the above said transaction is purely of civil nature and thecriminal proceedings initiated against the Petitioner is an abuseof process of law. He would further submit that the 2nd Respondenthas not come to the court with clean hands, as he has suppressedthe previous complaint given by him to the District Collector,Villupuram District and the Superintendent of Police, who in turnforwarded the same to Inspector of Police, Economic Wing 2 andthose complaints were closed on the ground that no prima facie caseis made out. It is contended by the learned counsel for thePetitioner that the Petitioner has got right to resume possessionof the vehicle and have retention of the documents relating to thevehicle, as the purchaser/2nd Respondent defaulted in makingpayments. In such view of the matter, he would argue that theallegations made against the Petitioner do not attract any of thoseoffences as alleged in the complaint.5. In support of his contentions, the learned counsel drewthe attention of this court to the judgement rendered in the caseof Trilok Singh and others Vs. Satya Deo Tripathi (AIR-1979-SC-850)that in case, default is committed by the hirer in paying theinstallments, the Financier under the hire purchase agreement hasgot all right to seize the vehicle and the dispute will be only ofcivil nature and launching criminal Prosecution is abuse of processof law. Similar view was expressed by the Honourable Supreme Courtin the cases of Charanjit Singh Chadha and others Vs. Sudhir Mehra(JT-2001-7-SC-226) and K.A.Mathai Alias Babu and another Vs. KoraBibbikutty and another (1996-7-SCC-212).6. On a perusal of the decision of the Honourable SupremeCourt referred to above, it is clear that on facts those decisionsare distinguishable. In those cases referred to by the learnedcounsel for the Petitioner, the hirer had committed default by nonpaying the installments and under agreement, the Financier had aright to take repossession of the vehicle and when the criminalproceedings were initiated against the Financier, the HonourableSupreme Court had observed that it cannot be said that theFinancier had committed theft of the vehicle or criminal breach oftrust or cheating as alleged in the complaint. https://hcservices.ecourts.gov.in/hcservices/

7. In the present case, the allegation in the complaintshows that the 2nd Respondent has paid the entire installments anddischarged the loan of Rs.4,20,000/- to the Petitioner, but thePetitioner refused to hand over the documents relating to thevehicle, thus preventing the 2nd Respondent from paying theinsurance and tax to the authorities and the vehicle could not beplied without the documents, thus he had been put to heavy loss anddamages.8. The above said allegations contained in the complaintand the statements of witnesses recorded thereafter during theinvestigation prima facie show that the Petitioner, even afterreceiving the entire amount, has failed to return the documents onthe ground that there is a balance amount to be paid and the saidallegation prima facie attract the offence of cheating, criminalbreach of trust and fraud. It is pertinent to note that in thiscase, after investigation, charge sheet has been laid and it cannotbe said that the case is false and no criminal offence has beenmade out at this stage. The complaint and the consequentialproceedings cannot be quashed on mere ground that the 2ndRespondent has got civil remedy. Besides that, the truthfulness orotherwise of the allegation made in the complaint cannot be goneinto at this stage.9. It is settled law that the charge sheet constitutes aprima facie evidence, constituting the offence for proceedingfurther in the matter. Necessarily therefore, the court has to lookinto relevant law and the allegations made in the charge sheet andthen consider as to whether any offence has been committed to framecharges for trial before discharging the accused. It is repeatedlyheld by the Honourable Supreme Court that the statutory power underSection 482 of Code of Criminal Procedure has to be exercisedsparingly with circumspection in the rarest of rare cases to doreal substantial justice for the administration of which alone orto prevent abuse of process of law. 10. In the case on hand, on consideration of theallegations and in the light of the statements recorded, thiscourt is of the considered view that the ingredients of theoffences are disclosed and there is no material to show that thecomplaint is mala fide or vexatious and in that event, there wouldbe no justification for interference by this court. Hence, thisCriminal Original Petition is liable to dismissed and accordingly,it is dismissed.Srcm Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To:1. The Judicial Magistrate Ulunderpet, Villuparam.2.-Do- Through The Chief Judicial Magistrate Villuparam.3.The Inspector of Police, Ulunderpet Police Station Villuparam.4. The Public Prosecutor, High Court, Madras+ 1 cc to Mr. Dr.R. Sampathkumar Advocate SR.29220.+ 1 cc to M/s. S. SaravanaKumar, Advocate SR.28856.Pre Delivery Order inCrl.OP.No.23698/2006SR (CO)EU 20.7.2009.