Karnataka High Court
Mahesh Kumar K.S. vs State Of Karnataka And Anr. on 20 February, 2002
Equivalent citations: 2003CRILJ528, ILR2002KAR3931, 2002(4)KARLJ103, 2003 CRI. L. J. 528, 2003 AIR - KANT. H. C. R. 71 (2002) 4 KANT LJ 103, (2002) 4 KANT LJ 103
Author: M.P. Chinnappa
Bench: M.P. Chinnappa
ORDER M.P. Chinnappa, J.
1. Heard Sri KM. Nataraj, the learned Counsel for the petitioner and Sri B.C. Muddappa, the learned Additional State Public Prosecutor. Though notice was served on the 2nd respondent/complainant, he remained absent.
2. The brief facts leading to this petition are that the 2nd respondent filed a complaint against the petitioner alleging that the petitioner after availing loan for purchase of vehicle under hire-purchase agreement defaulted in payment of monthly instalments. It is further alleged that the petitioner had an intention to cheat by handing over the vehicle to a third party. It also sought for search warrant to direct the Inspector of Police to produce the said vehicle before Court. After receipt of this complaint, the learned Judicial Magistrate First Class (II Court), Man-galore, registered a case in C.C. No. 18585 of 1997 and took cognizance of the offence and recorded the sworn statement of the complainant on 18-8-1997. On 20-8-1997 on the application filed by the complainant/respondent 2 under Section 93, issued search warrant to produce the vehicle, etc. Subsequently, on 26-8-1997 yet another application under Sections 451 and 457 of the Criminal Procedure Code was filed for release of the vehicle. In the meantime, the other side also filed a similar application. On 28-8-1997 the Court directed to refer the case for investigation under Section 156(3) of the Cr. P.C. to the Kadri Police Station, Mangalore. for investigation and report and the police investigated the case and filed a charge-sheet against the petitioner in Cr. No. 301 of 1997 for the offence punishable under Sections 420 and 421 of the IPC. Thereafter, the Court issued summons to the petitioner and he appeared and requested the Court to close the proceedings on the ground that the dispute is of civil nature. However, the Court rejected the request by order dated 28-9-2001. Therefore, he filed this petition.
3. From the very narration of the facts, it is abundantly clear that the learned Counsel below has, after taking cognizance of the case, issued search warrant and that cognizance was taken before recording his sworn statement. That being the case the Court should have proceeded with the case in accordance with Section 202(1) of the Cr. P.C. Further, even the Court has directed the police to investigate the case under Section 156(3) of the Cr. P.C. It is settled law that when once the Court has taken cognizance of the offence, it is not open to the Court to refer the case to the police for investigation under Section 156(3) of the Cr P.C. Therefore, the very procedure adopted by the Court below is contrary to the provisions of law. On that ground itself, the complaint is liable to be quashed. Their Lordships of the Supreme Court in Devara palli Lakshminarayana Reddy and Others v. V. Narayana Reddy and Ors., held that under Section 156(3) the Magistrate refers the case which is in the nature of peremptory reminder to the police to exercise their plenary powers of investigation under Section 156(1), but under Section 202 the Magistrate is empowered to direct, within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding". Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.
In this case, the Court after taking cognizance has referred the matter under Section 156(3) of the Cr. P.C and not under Section 202 of the Cr. P.C. Therefore, the procedure adopted by the Court also is illegal and invalid.
4. The learned State Public Prosecutor submitted that the matter may be remanded to the Court to proceed with the case at the stage at which the complaint was lodged. To consider this request it is necessary to find out as to whether on the allegation made in the complaint any offence was constituted for the Court to proceed against the petitioner.
5. The learned Counsel for the petitioner submitted that no offence is made out in view of the fact that the vehicle was taken on hire purchase and if he had failed to pay the instalments, it is open to the respondent/complainant to proceed against him before the Civil Court as there was no dishonest intention on the part of the petitioner to cheat the complainant at the inception of the contract. To substantiate his argument, he placed reliance on the judgment of the Supreme Court in State of Kerala v. A. Pareed Pillai and Anr., wherein it is held:
"To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfil the promise".
6. Recently their Lordships of the Supreme Court in S.W. Palanitkar and Others v. State of Bihar and Anr., it is held that under Sections 420 and 415 cheating the stage at which fraudulent or dishonest intention should exist in order to make out the offence of cheating, such intention must be shown to exist at the time of making of the inducement. Otherwise, mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.
7. In the case on hand, the complainant himself has stated that the petitioner who had taken the vehicle on hire-purchase had failed and neglected to pay certain instalments. In other words, he had paid certain instalments to the complainant after taking the vehicle on hire-purchase agreement. Therefore, the petitioner had no dishonest intention as on the date of entering into hire-purchase agreement to cheat or induce the complainant/respondent 2. Thus the dishonest intention is absent in this case.
8. The Madras High Court in Abdul Rahim v. Inspector of Police, 1992 Cri.L.J. 370 (Mad.) held that breach of conditions of hire-purchase agreement do not amount to offence of cheating. Therefore, viewed from any angle, it is clear that there is no dishonest intention on the part of the petitioner to cheat the respondent-complainant, on the other hand, he could not pay the instalments regularly. Hence, it is always open to the complainant to proceed against him before the Civil Court for appropriate relief. Under the extraordinary circumstances, this Court will have to exercise its inherent power to give effect to the order to prevent the abuse of process of Court or otherwise to secure the ends of justice. Accordingly, this petition deserves to be allowed.
9. For the foregoing reasons this petition is allowed. The entire proceedings pending before the Court in C.C. No. 18585 of 1997 on the file of the learned Judicial Magistrate First Class , (II Court), Mangalore, Dak-shina Kannada is quashed in the interest of justice.