RAVI SRINIVASA Vs. TVS FINANCE AND SERVICES LTD

JUDGEMENT

(1.) THIS petition is filed, seeking for a direction to call for the records relating to C.C.No.3055 of 2006 on the file of the learned III Metropolitan Magistrate, George Town, Chennai and quash the same.

(2.) THE petitioner is the sole accused in a private complaint which was taken as C.C.No.3055 of 2006 on the file of the learned III Metropolitan Magistrate, George Town, Chennai for the offences punishable under Secs.420, 406 and 408 r/w 120(b) IPC. THE learned Magistrate, after taking cognizance of the offence, issued process to the petitioner/accused to take up the proceedings. Aggrieved against that, the present petition to quash the proceedings has been filed before this Court.

(3.) PER contra, learned Senior Counsel appearing on behalf of the respondent/complainant, submits that the fact remains that the petitioner/accused borrowed a huge sum of Rs.12 lakhs from the complainant as a second loan only for the purpose of clearing the loan already borrowed in the HP loan agreement; that no doubt, the loan borrowed has been adjusted towards arrears of the HP agreement loan and that not only the principal but also along with interest as on 27.8.2002 to the tune of Rs.18,22,572.93 has not been paid and still it is outstanding. In such circumstances, the present loan must be treated as an independent transaction and it should not be clubbed together with the HP loan transaction. According to him, the entire amount of Rs.12 lakhs towards new loan along with interest has not been paid and therefore, offence under Sec.420 IPC is made out; similarly since the present loan has been availed only for the purpose of clearing the loan under the HP agreement, it must be presumed that the petitioner obtained the same with dishonest intention. He further submits that inasmuch as the learned Magistrate has taken cognizance of the case and process has been issued, it is for the accused/petitioner to approach the learned Magistrate with all available materials in his favour by way of discharge petition and without adopting such a recourse, he straight away approached this Court. The learned senior counsel relied on a decision reported in (2002)9SCC 709 (Ajay Mehra and Another Vs Durgesh Babu and Others), wherein it has been held as follows: