KRISHNA SHARMA Vs. STATE OF KERALA

JUDGEMENT

(1.) This is an application filed by the first accused in C.C. No. 1197/06 on the file of the Judicial First Class Magistrate's Court, Kasaragod, to quash the case against him, under S. 482 of the Code of Criminal Procedure. It is alleged in the petition that the second respondent has filed a private complaint before the Judicial First Class Magistrate's Court, Kasaragod and after taking the sworn statement, the case was taken on file against the present petitioner and other seven identifiable accused persons. It is alleged in the complaint that the complainant is the registered owner of the vehicle bearing Registration No. KL-14/E-3032 and as per the loan agreement entered into between the complainant and the first accused, the complainant had availed of a loan of Rs. 3,50,000/- from the first accused, after making a down payment of Rs. 55,000/-. The complainant purchased the above said vehicle in his name, using the loan provided by the first accused. The Registration Certificate and the Insurance Certificate stand in the name of the-complainant. There was some default committed in payment of the amount On 7.2.2006, while he was driving the vehicle at about 6 p.m., when the complainant reached the place called Dliyathadka, the first accused, along with seven other accused persons, stopped the vehicle and took the vehicle forcibly from him and they have no right to take forcible possession of the vehicle from the complainant. He had filed a complaint before the District Consumer Disputes Redressal Forum, Kasaragod as C.C. No. 18/2006 and the first accused was directed to produce the vehicle before the Forum as per order in I.A. No. 18/2006. But, they did not produce the vehicle and the accused had committed the offence punishable under S. 424 r/w S. 34 of the Indian Penal Code. Earlier, he had filed a private complaint before the same court and the same was forwarded to the police under S. 156(3) of the Code of Criminal Procedure, for investigation by the learned Magistrate and the Station House Officer, Kasaragod, had registered Crime No. 252/2006 and after investigation, the Investigating Officer filed a refer report, stating that it is a mistake of fact and law. Against that, the present protest complaint has been filed by the complainant, who is the second respondent herein and after conducting enquiry under S. 202 of the Code of Criminal Procedure, the case was taken on file and process was issued. Against that, the present petition has been filed. The learned counsel for the petitioner submitted that even going by the allegations in the complaint, it can be seen that there is a hire purchase agreement and the vehicle was re-possessed on the basis of the terms and conditions of the agreement and as such, there is no dishonest intention on the part of the petitioner, in re-possessing the vehicle and no offence under S. 424 of the Indian Penal Code is attracted.

(2.) On the other hand, the learned counsel for the second respondent argued that there is no document to show that he is an authorised agent of the financier and as such, he cannot claim protection under law.

(3.) On going through the allegations, it is seen that the complainant himself had stated that loan was taken from the first accused, after executing necessary agreement. It is also stated that the first accused had re-possessed the vehicle. The complainant had no case in the complaint that he is not the authorised person and he has no authority to re-possess the vehicle as per the hire purchase agreement. Further, the documents produced by the petitioner before this court as Annexures A6, A7 and A8 show that re-possession inventory list was prepared and the matter was informed to the Station House Officer, Kasaragod and also to the complainant, who is the second respondent herein. Further, for the purpose of considering the genuineness of the allegations in the complaint, it is settled law that courts can also consider the refer report filed by the Investigating Officer, which, according to the petitioner as well as the second respondent, was referred as mistake of fact and law. In order to attract S. 424 of the Indian Penal Code, it must be proved that there must be dishonest or fraudulent concealment before removing the property and there must be assistance for removal of such property with that intention. But, in this case, admittedly, the vehicle was re-possessed on the basis of the terms and conditions in the agreement.