Kerala High Court
V.V.Sahadevan vs Ajeesh C.T on 3 December, 2013
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 20TH DAY OF AUGUST 2014/29TH SRAVANA, 1936
Crl.MC.No. 4719 of 2014
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CRIME NO. 510/2014 OF KUMARAKOM POLICE STATION , KOTTAYAM
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PETITIONER:
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V.V.SAHADEVAN,
VANDOPPUMTHARA HOUSE, NEAR VETTIKKADU
JAMA MASJID,
THIRUVARPU, KOTTAYAM, PIN - 686 035.
BY ADVS.SRI.RAJESH NAIR
SRI.BIJOY CHANDRAN
RESPONDENTS:
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1. AJEESH C.T.,
S/O.THANKAPPAN, CHAMACKALAYIL, MANNAR KARA,
KADUTHURUTHY, KOTTAYAM DISTRICT-686 604.
2. THE DEPUTY SUPERINTENDENT OF POLICE,
KOTTAYAM-686 001.
3. THE SUB INSPECTOR OF POLICE,
KUMARAKOM POLICE STATION, KOTTAYAM DISTRICT-686 563.
4. MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD.,
2ND FLOOR, KYTHARAM COMPLEX, UNION CLUB JUNCTION,
KOTTAYAM - 686 001, REPRESENTED BY ITS MANAGER.
5. THE STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
R2,R3 & R5 BY PUBLIC PROSECUTOR SMT.SAREENA P.GEORGE
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 20-08-2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Kss
Crl.MC.No. 4719 of 2014
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APPENDIX
PETITIONER(S)' ANNEXURES:
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ANNEXURE-AI.TRUE COPY OF THE AGREEMENT DATED 3/12/2013.
ANNEXURE-A2.TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY
THE MOTOR VEHILE DEPARTMENT IN THE NAME OF PETITIONER.
ANNEXURE-A3.TRUE COPY OF THE LAWYER NOTICE DATED 10/5/2014 ISSUED
ON BEHALF OF THE 4TH RESPNDENT.
ANNEXURE-A4.TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 3RD
RESPONDENT ON 21/5/2014.
ANNEXURE-A5.TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 2ND
RESPONDENT ON 31/5/2014.
ANNEXURE-A6.TRUE COPY OF THE FIR DATED 12/6/2014.
ANNEXURE-A7.TRUE COPY OF THE INTIMATION BY RESPSONDENTS 2 AND 3
UNDER SECTION 157(2) OF THE CR.PC.
RESPONDENT(S)' ANNEXURES:
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/TRUE COPY/
P.A.TO JUDGE
Kss
K. RAMAKRISHNAN, J.
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Criminal M.C. No.4719 of 2014
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Dated this the 20th day of August, 2014
O R D E R
This criminal miscellaneous case was filed by the petitioner, seeking certain reliefs under Section 482 of the Code of Criminal Procedure (hereinafter called `the Code').
2. It is alleged in the petition that, the petitioner purchased a diesel tractor with Reg. No. KL-05-AF/4598 on 09.10.2012 for an amount of 6,64,000/- by availing a loan of 5,00,000/- from the 4th respondent. For the purpose of availing loan, he had given his property as security. While so, first respondent approached the petitioner and expressed his wiliness to purchase the same and accordingly as per Annexure-A1 agreement, dated 03.12.2003, the petitioner agreed to sell the tractor for an amount of 5,00,000/- and he had paid only 1,75,000/-, though it was mentioned in the agreement that, 2,00,000/- was paid on that date. The possession of the Crl.M.C. 4719/2014 2 tractor was also given. The balance amount has to be paid on fulfilling certain conditions of discharging the liability to the 4th respondent. First respondent had undertaken to repay the loan payable to the 4th respondent. But he had not fulfilled that promise and he had committed default. He had also not taken any steps to change the registration in his name. He has not paid the tax or insurance and failed to take insurance for the vehicle as well. Now notice has been issued by the 4th respondent for recovery of the amount. Though he filed a complaint before the 3rd respondent and they registered Annexure-A6 first information report as No.510/2014 of Kumarakom police station, against the first respondent, alleging offences under Section 405, 406 and 420 of the Indian Penal Code, after investigation, they have decided to file a refer report and issued Annexure-7 notice to the petitioner. The petitioner has no other remedy, except to approach this court, seeking the following reliefs:
i. Issue a direction or order directing the respondents 2 and 3 to conduct further investigation in Crl.M.C. 4719/2014 3 to Annexures A4 to A6 or to direct any of the higher police officials to investigate in to Annexures A4 to A6.
ii. Issue a direction or order directing the respondents 2 and 3 to see that the 4th respondent does not effect any recovery proceedings against the petitioner in pursuance to Annexure A3 till the disposal of the private complaint / petition to be filed by the petitioner before the Judicial Magistrate of Ist Class - III, Kottayam and to direct the respondents 2 and 3 to see that the 4th respondent proceeds against the 40 HP High Speed Diesel Tractor (Reg. No.KL-05-AF/4598) from the possession of the 1st respondent or do.
iii. Direct the second and third respondents to produce the 40 HP High Speed Diesel Tractor (Reg.No.KL-05-AF/4598) before the Judicial Magistrate of 1st Class-III, Kottayam.
iv. Direct the Judicial Magistrate of 1st Class-III, Kottayam to consider and pass orders on the private complaint and applications for search and seizure of the 40 HP High Speed Diesel Tractor (Reg.No.KL-05-
AF/4598) from the possession of the 1st respondent on the same day on the date of moving such application by the petitioner.
v. Consider and pass such other writs, orders or directions as deemed fit by this Hon'ble Court in the interest of equity, justice and fairness.
3. Considering the nature of relief claimed in the petition, this court felt that, the petition can be disposed of at the admission stage itself, after hearing the learned counsel for the petitioner and the learned Public Prosecutor, dispensing with notice to the 1st and 4th Crl.M.C. 4719/2014 4 respondents.
4. The learned counsel for the petitioner submitted that, there was an agreement of sale of the vehicle belonging to the petitioner, which he had purchased by availing a loan from the 4th respondent, with the first respondent and he had made only part payment and he had agreed to repay the loan amount, but he had committed default. He had not paid the tax due to the Government and also he had not taken the insurance policy and he is anticipating recovery proceedings from the Government as well. If the vehicle met with any accident, since he had not taken the insurance, he will also be made liable for the damages, if any payable to any of the injured person, on account of the user of the vehicle in the public place in the claims to be preferred by them. The 4th respondent is now trying to realise the amount, the recovery proceedings by the 4th respondent has to be stayed and the vehicle will have to be taken possession from the first respondent as well, to Crl.M.C. 4719/2014 5 avoid misuse of the vehicle by the first respondent.
5. The learned Public Prosecutor submitted that, they have already conducted investigation and filed a refer report and the remedy of the petitioner is to approach the concerned magistrate court by filing either objection to the refer report or file a protest complaint and not to approach this court for further investigation.
6. It is an admitted fact that, the petitioner is the registered owner of the vehicle No.KL-05-AF/4598, which he purchased by taking loan from the 4th respondent financier. It is also in away admitted that, the vehicle was hypothicated to them and apart from that, he had given property security as well. It is also in away admitted by the petitioner in the petition itself that, he had entered into Annexure-A1 sale agreement in respect of the vehicle with the first respondent and certain amount was received and as per the terms of the agreement, the first respondent has to pay the amount due to the 4th respondent and after the Crl.M.C. 4719/2014 6 financial transaction with the 4th respondent is over, he will be taking steps to transfer the registration of the vehicle in favour of the first respondent and the first respondent has committed default and now 4th respondent has issued notice. Under these circumstances, he filed complaint before the 3rd respondent and he filed Annexure-4 and 5 complaints before the higher authorities and other authority on the basis of Annexure-4, Annexure-6 first information report was registered, as Crime No.510/14 of Kumarakom police station, against the first respondent, alleging offences under Section 405, 406 and 420 of the Indian Penal Code. It is also in away admitted that, after investigation, the 3rd respondent has decided to refer the case as mistake of fact and filed a refer charge before the concerned magistrate court and issued Annexure-A7 notice as contemplated under Section 173(2) of the Code. The petitioner is having a statutory remedy of filing objection to the refer report before the magistrate court or file a protest Crl.M.C. 4719/2014 7 complaint before the same court and the magistrate can conduct enquiry either under Section 156(3) or under Section 200 and 201 of the 'Code' and pass appropriate orders in that complaint. When such a remedy is available, this court feels that, it is not proper to invoke the power under Section 482 of the Code, for ordering further investigation in a petition like this.
7. Further the prayer for staying the recovery proceedings from the 4th respondent is also not possible, because as per the contract, the petitioner is bound to pay the loan instalment to the 4th respondent. If he is not paying the same, they are at liberty to recover the same from the petitioner. The petitioner's remedy is to proceed against the first respondent for the loss if any sustained by him, on account of the breach, which was committed by him is not paying the amount due to the 4th respondent, by initiating appropriate proceedings. So the petition can be disposed of as follows:
Crl.M.C. 4719/2014 8
The remedy of the petitioner is to file either objection or file protest complaint before the Judicial First Class Magistrate Court-III, Kottayam, against the refer charge filed by the 3rd respondent before that court and if such an objection/ protest complaint is filed, the magistrate is directed to conduct enquiry and pass appropriate orders in that complaint, in accordance with law. Along with the complaint, if the petitioner files any application for seizure of the vehicle, then the magistrate is at liberty to consider and pass appropriate orders in that application.
With the above direction and observation, the criminal miscellaneous case is disposed of.
Sd/-
K. RAMAKRISHNAN, JUDGE // True Copy// P.A. to Judge ss