Kerala High Court
Nithin Thomas vs State Of Kerala on 6 January, 2021
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942
Crl.Rev.Pet.No.562 OF 2020
CC 1668/2017 DATED 08-07-2020 OF JMFC, KALAMASSERY
(TEMPORARY)
CRIME NO.597/2017 OF Kalamassery Police Station , Ernakulam
REVISION PETITIONER/S:
1 NITHIN THOMAS
AGED 29 YEARS
S/O. P.P THOMAS, PUTHENPURAKKAL HOUSE,
NEDUGADAPPALLY P.O, KOTTAYAM 686 545
FORMERLY SALES EXECUTIVE, PINNACLE MOTORS
PRIVATE LIMITED
2 SEBI YACOB,
AGED 36 YEARS
S/O. P.K CHACKO, PARAMBATHIL HOUSE,
ALLAPRADESAM, VENGOLA P.O, PERUMBAVOOR,
ERNAKULAM 683556
3 TITH JO
AGED 37 YEARS
S/O. JOSEPH, VETTIYAT HOUSE, ANGAMALY,
ERNAKULAM 683572
FORMERLY ASSISTANT GENERAL MANAGER, PINNACLE
MOTORS PRIVATE LIMITED
BY ADVS.
SRI.C.HARIKUMAR
SRI.RENJITH RAJAPPAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM 682 031
2 REMADEVI,
Crl.R.P.No.562/2020
2
AGED 55 YEARS
W/O. ASHOKAN, AISWARYA, DIG LANE, ELAMAKKARA,
ERNAKULAM 682 026
3 ASHOK P,
AGED 57 YEARS
S//O. PONNUSWAMY, AISWARYA , DIG LANE,
ELAMAKKARA, ERNAKULAM 682 026
OTHER PRESENT:
PP AMJAD ALI
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 18-09-2020, THE COURT ON 06-01-2021 PASSED THE
FOLLOWING:
Crl.R.P.No.562/2020
3
ORDER
Dated this the 06th day of January, 2021 The revision petitioners are accused 1 to 3 in C.C.No.1668 of 2017 pending on the files of the Judicial First Class Magistrate, Kalamassery. The case originated from a complaint filed by respondents 2 and 3/complainants and forwarded to the Police under Section 156 (3) Cr.P.C. The allegations in the complaint are to the following effect:
The complainants had approached M/s.Pinnacle Motors Pvt. Ltd, the authorised dealers of Fiat Cars, with the intention of purchasing a Fiat Punto Diesel Car and to ply it as a taxi. The complainants wanted a brand new car, since they would not otherwise be eligible for Government's subsidy for taxi cars. The revision petitioners, Crl.R.P.No.562/2020 4 who were working at the dealership, as Sales Executive, Sales Manager and Assistant Manager respectively, promised to deliver a brand new Punto Car, by bringing down the vehicle from the latest stock available at the Pune Plant of Fiat Company, if the vehicle is booked by remitting Rs.25,000/- towards advance. Accordingly, complainants booked the vehicle on 31.12.2016. After a few days, the revision petitioners informed the complainants that the vehicle is on its way from Pune and asked them to pay Rs.1,75,000/- more. The complainants were made to believe that the vehicle will be ready for delivery within three or four days of payment of the amount. Believing the assurance given by the revision petitioners, the complainants made the additional payment. By 07.01.2017, a total amount of Rs.7,40,000/- was paid by the complainants towards the price of the car. Out of this amount, Crl.R.P.No.562/2020 5 Rs.4,50,000/- was generated through a loan availed from the Punjab National Bank. But, contrary to the assurance given, the vehicle was not delivered even after remittance of the full price. Physical delivery was effected only on 30.01.2017. Thereafter, while the vehicle was being driven with its first customer inside, it stopped on the middle of the road abruptly and the entire diesel leaked on the road. Thereupon, the bonnet of the vehicle was opened, and to their dismay, the complainants found certain engine parts to be rusty and worn out. Having become suspicious about the date of manufacture of the vehicle, the particulars in the RC book was verified and it was found that the vehicle was manufactured in May, 2016. Further, the tax invoice-cum-bill issued to the complainants showed another person's name as the original purchaser and the warranty of the vehicle was shown to have been in operation from Crl.R.P.No.562/2020 6 30.09.2016. It therefore became evident that the accused had sold an old vehicle to the complainants, contrary to their promise to deliver a December, 2016 or newer model vehicle.
2. Based on the complaint, Crime No.597 of 2017 was registered at the Kalamassery Police Station and final report was filed arraying the revision petitioners and two others as accused. The jurisdictional court took cognisance for the offences punishable under Sections 420, 468 and 471 r/w 34 of IPC. Later, the revision petitioners along with the 5th accused moved application for discharge under Section 239 Cr.P.C, which the trial court dismissed vide Annexure A2 order. Aggrieved, the criminal revision petition is filed.
3. Sri.C.Harikumar, learned Counsel for the revision petitioners assailed the findings in the impugned order and contended that even if the Crl.R.P.No.562/2020 7 allegations are accepted in their entirety, no offence is made out against the revision petitioners. It is submitted that, other than doing their duties as sales personnel of the employer Company, the revision petitioners had nothing to do with sale of the car to respondents 2 and 3. It is submitted that no assurance regarding the make, model or date of manufacture of the vehicle was given by the revision petitioners. That, the respondents had taken delivery of the vehicle after thorough inspection and the revision petitioners cannot be attributed with the intention to cheat, merely because the vehicle had a mechanical snag on the second day of its delivery. It is submitted that the complainants had booked the vehicle in December, 2016 after availing discounts, including the year end discount. A brand new vehicle was delivered to the complainants, after sourcing the vehicle Crl.R.P.No.562/2020 8 from another dealer. It is submitted that the revision petitioners have nothing to do with the alleged forgery of the insurance cover note and the ingredients of Section 415 being completely absent, the prayer for discharge ought to have been allowed. Reliance is placed on the decisions of the Delhi High Court in Ashok Sachdev and another v. G.S.Chowhan (Judgment dated 16.04.2012 in Crl.M.C.No.927 of 2011) and Ford India Ltd and another v. Sunbeam Ancillary Pvt. Ltd (Judgment dated 04.07.2008 in Crl.M.C.No.2804 of 2004), which according to the learned Counsel, was rendered under identical circumstances.
4. According to the learned Public Prosecutor, the very fact that the accused had sourced a vehicle from another dealer, even after the employer Company having wound up the dealership, is indicative of the intention to cheat respondents 2 and 3. Sale of the 2016 May Crl.R.P.No.562/2020 9 model vehicle on 30.01.2017, knowing fully well that the vehicle is purchased for the purpose of plying it as a taxi, is further proof of the dubious intention. It is contended that, the question whether the revision petitioners had the intention to deceive from the inception and whether they are parties to the forgery of the insurance cover note are all matters to be considered during trial and that, at the stage of framing charge, the court need only consider whether a prima facie case is made out from the materials produced by the prosecution.
5. On consideration of the pleadings and the contentions it emerges that the vehicle sold to respondents 2 and 3 on 30.01.2017 was manufactured in May 2016. Further, in the bill generated after repair, another person's name was shown as the owner and the warranty of the vehicle was shown to have commenced from 30.09.2016. That the vehicle Crl.R.P.No.562/2020 10 suffered a break down on the next day of its delivery is not disputed. It is the admitted by the revision petitioners that, for reasons beyond their control, delivery of the vehicle did not take place as expected. That, prior to delivery, the Company; Pinnacle Motors Pvt.Ltd, had wound up the dealership of Fiat Cars and the vehicle had to be sourced from another dealer.
6. As per the prosecution allegation, even though the insurance cover note for the vehicle should have been taken with effect from 27.01.2017, the cover note was taken six days thereafter, with validity from 03.02.2017 to 02.02.2018. It is alleged that the entries in the cover note were subsequently corrected to make it appear that the vehicle's insurance was valid from 27.01.2017 onwards. Even though the forgery is alleged to have been committed by the fourth respondent, the question as to whether the Crl.R.P.No.562/2020 11 forgery was committed in pursuance of the common intention to cheat, can be decided only after adducing evidence.
7. Yet another contention is regarding the omission to include the employer Company or its management as accused, without which the revision petitioners, who are only employees of the Company cannot be proceeded against. The specific case of respondents 2 and 3 is that the revision petitioners had induced them into paying the advance amount and price of the vehicle by promising to deliver the latest model car. Moreover, if, at a later stage, it appears that the company or its management ought to be roped in as accused, the trial court can do so under Section 319 Cr.P.C.
8. As regards the contention that the order was not passed by the Magistrate who heard the discharge petition, a perusal of the impugned Crl.R.P.No.562/2020 12 order shows that the learned Magistrate has considered and dealt with all the contentions.
9. The decisions cited by the learned Counsel for the revision petitioners were rendered under entirely different set of facts and circumstances and cannot hence be made applicable to the facts of the instant case. In Ashok Sachdev, the allegation of the complainant was that he had visited the showroom and had purchased the car relying on the credibility of Toyota. Further, in the judgment, it is specifically noted that even going by the complainant's version, the accused had not represented the car to be a brand new one. In Ford India Ltd, allegation was that the vehicle had manufacturing defects and it was in that context, the court held the remedy of the complainant to be under the Consumer Protection Act.
For the aforementioned reasons, I find no Crl.R.P.No.562/2020 13 merit in the revision petition. Accordingly, the Criminal Revision Petition is dismissed.
Sd/-
V.G.ARUN JUDGE Scl/06.01.2021