VINAY VENUGOPAL NAIR Vs. ALIMUDDIN ZAHIRUDDIN ANSARI

JUDGEMENT

(1.) PRESENT Special Criminal Application Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the petitioners herein ­ original accused to quash and set aside the impugned complaint being Inquiry Case No.81/2008 pending in the Court of learned Metropolitan Magistrate, Court No.13, Ahmedabad filed by respondent No.1 herein ­ original complainant for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC").

(2.) THAT respondent No.1 herein ­ original complainant has filed/instituted the impugned complaint being Criminal Inquiry Case No.81/2008 against the petitioners herein ­ original accused in the Court of learned Metropolitan Magistrate, Court No.13, Ahmedabad for the offences punishable under Sections 406, 420 and 114 of the IPC alleging interalia that he had taken finance from the G.E. Capital Finance on the truck in question in the year 2006 and he was required to pay monthly installment of Rs.28,270/. It is further alleged in the complaint that he paid the monthly installment regularly upto April 2008. However, he could not pay the last two installments and therefore, petitioner No.2 herein ­ original accused No.2 and his persons took the custody of the vehicle on 07.05.2008. It is further alleged in the said complaint that at that time the complainant was told to make the payment of two installments and penalty and the balance amount and then only the custody of the vehicle shall be returned and therefore, he made the payment of Rs.40,000/ towards two installments and additional amount of Rs.39,000/ and the vehicle in question was returned. It is alleged that at that time accused No.2 told that if there is any default in payment of installment, they will take back the vehicle and will not return. It is further alleged in the complaint that thereafter the vehicle was not running and therefore, it was kept in garage for the purpose of repairing and therefore, he could not run the said vehicle and therefore, he could not pay the two installments. Therefore, petitioner No.2 and his persons came and told the complainant that why the installments are not paid, to that the complainant informed that the vehicle has gone for repairing, to that accused No.2 told that he want to verify the same and therefore, the complainant became apprehensive and told accused No.2 whether they have come for repossessing the vehicle or not. To that accused No.2 assured that they have not come for repossession of the vehicle but they want to see the vehicle and the location of the vehicle and therefore, the complainant gave the chit on the responsible officer of the garage only with a view to permit petitioner No.2 ­ accused No.2 to see the vehicle. It is alleged that thereafter when his number came for repairing and he went to garage, he found that instead of seeing the vehicle, petitioners have illegally and by misusing the chit have taken back the possession of the truck. Therefore, it is alleged that the petitioners have committed offence punishable under Sections 406, 420 and 114 of the IPC. That in the said complaint, learned Magistrate has passed an order to send the said complaint for police investigation under Section 156(3) of the CrPC. Hence, the petitioners ­ original accused have preferred the present Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the CrPC.

(3.) PETITION is opposed by Shri L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the State and/or Investigating Officer. It is submitted that as such the averments and allegations in the impugned FIR discloses prima facie commission of cognizable offence which are further required to be investigated by the Investigating Officer. It is submitted that at this stage the learned Magistrate has only passed an order to send the complaint for police investigation under Section 156(3) of the CrPC and the IO is yet to investigate the case and submit the report before the concerned Magistrate which the learned Magistrate is yet to consider and therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Dharmatma Singh v. Harminder Singh & Ors. reported in (2011) 6 SCC 102 (Para 22), it is requested to dismiss the present petition and not to quash and set aside the impugned criminal proceedings at this stage.