S.Sivakumar v. Chandra Kala Mehta

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.12.2009C O R A MTHE HONOURABLE MR.JUSTICE K.MOHAN RAMCriminal Original Petition No.25166 of 2002and Crl.M.P.No.10554 of 20021. S.Sivakumar2. S.Subburaj.. Petitioners/ Accused Nos. 1 and 2-Vs.-Chandra Kala MehtaProprietor, Besant Raj Mehta403 Rajendra ApartmentsSecretariat ColonyKilpauk, Chennai 600 010.. Respondent/ ComplainantCriminal Original Petition filed under Section 482 of the CriminalProcedure Code to call for the records relating to C.C.No.7878 of2002 on the file of the II Metropolitan Magistrate, Egmore, Chennaiand quash the same.For Petitioners :No AppearanceFor Respondent:Mr. T.S.Kanmani, (Amicus Curiae)O R D E RThe petitioners who are accused 1 and 2 in C.C.No.7878 of2002 on the file of the learned II Metropolitan Magistrate, Egmore,Chennai, wherein they are facing trial for the alleged offenceunder Section 420 read with 34 IPC have filed the above quashpetition seeking to quash all further proceedings therein.2. The brief facts which are necessary for the disposal ofthe above Criminal Original Petition and as culled out from thecomplaint filed by the respondent against the petitioners hereinare set out below:-It is alleged that the accused approached the complainant togrant hire purchase facility in respect of a vehicle bearingRegistration No.TN-60-1047, make M & M Cab, Model 1993 and therebypromising to repay the amount under the hire purchase agreement.Believing the representation of the accused to be true and genuine,the complainant on good faith and belief, sanctioned the hire https://hcservices.ecourts.gov.in/hcservices/ purchase loan amount of Rs.1,71,000/- payable in thirty monthlyinstalments. The second accused stood as a guarantor. Afterpaying some instalments, the hirer committed default on the paymentof the monthly instalments and a sum of Rs.98,200/- was due underthe hire purchase agreement. It is alleged that the accused havesold the vehicle by fabricating the false document to a third partywhile the hire purchase agreement is in force. Thus, according tothe complainant, the accused have committed an offence underSection 420 read with 34 IPC. 3. When the above Criminal Original Petition was taken upfor final disposal, the learned counsel for the petitioners wasabsent and the learned Amicus Curiae for the respondent waspresent.4. Learned Amicus Curiae for the respondent submitted thathaving committed default in paying the monthly instalments, theaccused have fabricated the documents and sold the vehicle, whichis a subject matter of the hire purchase agreement to a third partyand thereby have cheated the complainant. She further submittedthat in paragraph 6 of the complaint it is stated that the accusedwith dishonest intention to cheat the complainant induced him tosanction the hire purchase facility in respect of the vehicle toaccused 1 and 2 and executed the hire purchase agreement andsubsequently failed to repay the amount to the tune of Rs.98,200/-due under the hire purchase payment, but contrary to that, thefirst and second accused sold the vehicle by fabricating thedocuments to the third party and cheated the complainant;according to the learned counsel, the said averments do constitutethe ingredients of the offence of cheating. She further submittedthat simply because a civil remedy is available to the complainant,it does not mean that he should pursue only the civil remedy, butif a criminal offence is committed, it is always open to thecomplainant to file a criminal action as well as a civil case. Insupport of the said contention, the learned counsel based relianceon a decision of the Apex Court reported in 2000 CRI. L.J. 1487 (1)(M/s. Medchl Chemicals and Pharma Pvt. Ltd., v. M/s. Biological E.Ltd. and others). In the said decision, in paragraph 17, it islaid down as under:-"17. ... The ingredients of the offences under Sections415, 418 and 420 cannot be said to be totally absent onthe basis of the allegations in the complaint. Wehowever, hasten to add that whether or not theallegations in the complaint are otherwise correct has tobe decided on the basis of the evident to be led at thetrial in the complaint case but simply because the factthat there is a remedy provided for breach of contract,that does not by itself clothe the Court to come to aconclusion that civil remedy is the only remedy availableto the appellant herein. Both criminal law and civil lawremedy can be pursued in diverse situations. As a matterof fact "they are not mutually exclusive but clearly co-extensive and essentially differ in their content andconsequence. The object of criminal law is to punish an https://hcservices.ecourts.gov.in/hcservices/ offender who commits an offence against a person,property or the State for which the accused, on proof ofthe offence, is deprived of his liberty and in some caseseven his life. This does not, however, affect civilremedies at all for suing the wrongdoer in cases likearson, accidents etc. It is anathema to suppose thatwhen a civil remedy is available, a criminal prosecutionis completely barred. The two types of actions are quitedifferent in content, scope and impart".5. I have considered the said submissions made by thelearned Amicus Curiae and perused the materials available onrecord.6. In the quash petition it is contended that the amountsdue under the hire purchase agreement have been paid to a broker atKovilpatti for which bills have been issued by them and the vehiclein question has not been sold to the third party but it is in thecustody of the petitioners; it is always open to the complainantto file a civil suit and seize the vehicle; but instead of doingso, he has converted a pure civil dispute into a criminal action.It is also contended that the ingredients of the offence underSection 420 IPC is not made out.7. Before considering the averments contained in thecomplaint it will be useful to refer to a decision of the ApexCourt reported in 2001 Supreme Court Cases (Cri) 565 (ALPIC FINANCELTD. v. P.SADASIVAN). In the said decision, in paragraphs 10, 11and 12, the Apex Court has laid down as under:-"10. The facts in the present case have to be appreciatedin the light of the various decisions of this Court.When somebody suffers injury to his person, property orreputation, he may have remedies both under civil andcriminal law. The injury alleged may form the basis ofcivil claim and may also constitute the ingredients ofsome crime punishable under criminal law. When there isdispute between the parties arising out of a transactioninvolving passing of valuable properties between them,the aggrieved person may have a right to sue for damagesor compensation and at the same time, law permits thevictim to proceed against the wrongdoer for havingcommitted an offence of criminal breach of trust andcheating. Here the main offence alleged by the appellantis that the respondents committed the offence undersection 420 IPC and the case of the appellant is that therespondents have cheated him and thereby dishonestlyinduced him to deliver property. To deceive is to inducea man to believe that a thing is true which is false andwhich the person practising the deceit knows or believesto be false. It must also be shown that there existed afraudulent and dishonest intention at the time ofcommission of the offence. There is no allegation thatthe respondents made any wilful misrepresentation. Even https://hcservices.ecourts.gov.in/hcservices/ according to the appellant, the parties entered into avalid lease agreement and the grievance of the appellantis that the respondents failed to discharge theircontractual obligations. In the complaint, there is noallegation that there was fraud or dishonest inducementon the part of the respondents and thereby therespondents parted with the property. It is trite lawand common sense that an honest man entering into acontract is deemed to represent that he has the presentintention of carrying it out but if, having accepted thepecuniary advantage involved in the transaction, he failsto pay his debt, he does not necessarily evade the debtby deception.11. Moreover, the appellant has no case that therespondents obtained the article by any fraudulentinducement or by wilful misrepresentation. We are toldthat the respondents, though committed default in payingsome instalments, have paid substantial amount towardsthe consideration.12. Having regard to the facts and circumstances, it isdifficult to discern an element of deception in the wholetransaction, whereas it is palpably evident that theappellant had an oblique motive of causing harassment tothe respondents by seizing the entire articles throughmagisterial proceedings."8. If in the light of the aforesaid legal principles laiddown by the Apex Court, the averments contained in the complaintare considered, this Court is of the considered view that theingredients of the offence of cheating are not made out. In thecomplaint there is no allegation that the petitioners made anywilful misrepresentation. Even according to the complainant, theparties entered into a valid hire purchase agreement and thegrievance of the complainant is that the petitioners failed todischarge the contractual obligations. In the complaint, there isno allegation that there was fraud or dishonest inducement on thepart of the petitioners and thereby the petitioners parted with theproperty. It is trite law and common sense that an honest manentering into a contract is deemed to represent that he has thepresent intention of carrying it out but if, having accepted thepecuniary advantage involved in the transaction, he fails to payhis debt, he does not necessarily evade the debt by deception. Itis also seen from the averments contained in the complaint that outof the total loan amount of Rs.1,71,000/- certain instalments havebeen paid by the accused and only a sum of Rs.98,200/- was due.The averments contained in paragraph 6 does not state that at theinception the accused had dishonest intention to cheat thecomplainant. A mere default to pay the monthly instalments payableunder the hire purchase agreement will not lead to the inferencethat the accused had dishonest intention to cheat the complainantat the inception itself. The allegations contained in paragraph 6of the complaint is only an inference drawn by the complainant onthe basis of the default committed by the accused in the payment ofthe monthly instalments due under the hire purchase agreement. https://hcservices.ecourts.gov.in/hcservices/ Therefore, this Court is unable to countenance the contentions putforth by the learned Amicus Curiae for the respondent.9. In the considered view of this Court, the legalprinciples laid down in 2001 Supreme Court Cases (Cri) 565(referred to supra) squarely applies to the facts of this case.Therefore, all further proceedings in C.C.No.7878 of 2002 on thefile of the II Metropolitan Magistrate, Egmore, Chennai are herebyquashed and the above Criminal Original Petition is allowed.Consequently, the connected Crl.M.P is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.srkTo1. The II Metropolitan Magistrate, Egmore, Chennai2. Do thro the Chief Metropolitan MagistrateEgmore, Chennai1 cc to Mr.T. Muruganatham, Advocate, SR. 67290Crl.O.P.No.25166 of 2002& Crl.M.P.No.10554 of 2002GR (CO)kk 29/12