High Court rejected submission to quash private complaint involving hire purchase dispute alleging criminal conspiracy. Court directed discharge proceedings and stayed vehicle production pending decision.
Directed Magistrate to hear discharge petition expeditiously; production of vehicle stayed pending disposal of discharge claim.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931
Crl.MC.No. 1802 of 2006()
------------------------CMP.3555/2005 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA ....................
PETITIONER(S):
--------------------------
K.VINEESH, S/O.GOVINDAN NAIR, NADUKANDY HOUSE, KARIYAD P.O., MEPAYOOR VIA, KOZHIKODE DISTRICT, WHO IS THE POWER OF ATTORNEY HOLDER OF S.PRABHADEVI.
BY ADV. MR.C.R.SIVAKUMAR
RESPONDENT(S): ----------------------------
1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PERAMBRA POLICE STATION, PERAMBRA, KOZHIKODE DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
2. K.SHIBU, S/O.BALAN, KOMMINIYOTTU HOUSE, PERAMBRA P.O., KOZHIKODE DISTRICT.
R1 BY PUBLIC PROSECUTOR MR. B.VINOD R2 BY ADV.SMT.NIDHI BALACHANDRAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/08/2009 ALONG WITH CRMC NO. 1180 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Kss
M.Sasidharan Nambiar, J.
-------------------------Crl.M.C.No.1802 of 2006 & Crl.M.C.No.1180 of 2009
COMMON ORDER
Fourth accused in C.M.P.No.3140/2005 on the
file of Judicial First Class Magistrate's Court-II, Perambra filed Crl.M.C.No.1180/2009 under Section 482 of Code of Criminal Procedure to quash Annexure-6 petition filed by the second respondent alleging that fourth accused committed offences under Sections 120B and 379 of Indian Penal Code. Case of the second respondent is that he is the registered owner of Mahindra Jeep KL-11/D 106 and he had availed a loan of Rupees One lakh from the petitioner/fourth accused as per a hire purchase agreement and as per the agreement, he has to pay monthly instalments and he could not pay some of the instalments and while so, on 3.8.2005, when he had gone to Panthirikkara Branch of Perambra Regional Co-operative Bank, after parking the jeep
CRMC 1802/06&1180/09 2
near the Bank, accused 1 and 2, who are police constables in mufti dress, came there and obtained the key of the jeep forcibly from the driver Ramachandran and without the consent or permission of the second respondent or his driver, took away the jeep and later, it was found kept at the Perambara Police Station premises. When second respondent contracted the police station, he was advised to contact the Circle Inspector and Circle Inspector was also not prepared to disclose the true facts and second respondent could gather information that the vehicle was taken at the
instance of the petitioner/financier as well as the
third accused, the agent of the financier and
according to the second respondent, neither the financier nor the agent had furnished any complaint to the police. Second respondent filed C.M.P.No. 2971/2005 before Judicial First Class Magistrate's
Court-II, Perambra to appoint an Advocate Commissioner to inspect the police station premises and to give a report. Advocate Sri.M.K.Manoj
CRMC 1802/06&1180/09
3
Kumar, who was appointed as the Advocate Commissioner, inspected the police station premises and found the vehicle kept there and reported it to the court. It is contended that vehicle was stolen pursuant to the conspiracy between the four accused and thereby they committed offences under Sections 120B and 379 of Indian Penal Code.
CRMC 1802/06&1180/09
4
enforcement of the clause in the hire purchase agreement, seizes the vehicle, an offence under Section 120B or 379 of Indian Penal Code is not attracted. When a complaint under Section 482 of Code of Criminal Procedure is to be quashed, the question to be considered is whether the allegations in the complaint make out the alleged offence or not. Correctness or otherwise of the allegations in the complaint, with reference to the documents produced by the petitioner, is not possible, as a factual finding, which could be arrived at after appreciation of evidence, is not
to be contemplated in a petition filed under Section 482 of Code of Criminal Procedure.
agree with the submission that powers under Section 482 are to be invoked to quash the complaint. As it is a private complaint, being tried as a warrant trial otherwise than on a police report, petitioner is entitled to seek an order of discharge as provided under Section 245 of Code of Criminal
5
CRMC 1802/06&1180/09
Procedure before the Magistrate. Petitioner is entitled to raise all the contentions raised herein before the Magistrate. Magistrate is directed to dispose the case expeditiously.
C.M.P.No.3555/2005, learned Magistrate directed to
produce the vehicle before the court. Annexure-4
order was stayed by this Court. In such circumstances, I do not find it necessary to interfere with Annexure-4 order. Learned Magistrate
not to insist for the production of the vehicle, till the claim for discharge by the petitioner is decided.
Petitions are disposed accordingly.
6th August, 2009
tkv
3 issues framed by the court
Whether powers under Section 482 CrPC are maintainable for quashing a private complaint in a warrant trial.
Whether the petitioner is entitled to seek an order of discharge under Section 245 CrPC in a private complaint.
Whether the production of vehicle seized in a hire purchase dispute should be insisted upon pending discharge decision.
3 provisions across 2 enactments
K.Vineesh
State of Kerala
K.Shibu
M.Sasidharan Nambiar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
