Major K. Mathiews vs State and Another

Pratap Singh, J.—Accused No. 3 in X-Crime No. 1483/89 on the file of Central Branch, Egmore, Madras, has filed this petition u/s 482 Criminal Procedure Code, to call for the records in the aforesaid case and quash the same.

The second respondent has filed private complaint against three accused, out of whom the petitioner is the third accused before the Second Metropolitan Magistrate, Egmore, Madras, for offences under Sections 406, 420 read with 109 I.P.C. The learned Magistrate had forwarded the complaint u/s 156 (3) Criminal Procedure Code to the Assistant Commissioner of Police (Crimes), Central Crime Branch, Madras-8. He in turn directed the first respondent to register case and investigate the same and accordingly the case was registered in X-Crime No.1483/89 under Sections 406 and 420 I.P.C. The allegations in the aforesaid complaint are briefly as follows:

On 5.9.88 accused 1 and 2 represented to the complainant that they were in need of finance help through hire purchase agreement in respect of the Ambassador car bearing Registration No.TSB 2851 which stood in the name of the first accused. The second accused stood as a guarantor and assured that first accused would pay the monthly instalments properly within stipulated time and he will comply all other conditions of hire purchase agreement. Accordingly hire purchase agreement was executed on the same day. As per the terms of the hire purchase agreement, from the date of hire purchase agreement, the complainant is the owner of the vehicle and the first accused is only a hirer. Inter-alia, the agreement also provides that the accused have no right to transfer or change any part or parts of the vehicle till expiry of the hire purchase agreement and that the complainant has got every right to seize the vehicle for default of any monthly instalment towards the hire purchase agreement. The hire purchase amount was Rs.74,750/-. After taking delivery of the vehicle, the accused had paid instalment for few months. Thereafter, despite demands, the instalments were not paid. 1 he complainant tried to seize the vehicle as per the terms and conditions of the hire purchase agreement for the default committed by the accused in payment of the hire purchase amount. But they could not trace the vehicle. The complainant came to knew that accused 1 and 2 in order to commit wrongful loss to the complainant dismantled the vehicle and disposed it off to the third accused. The third accused knowing fully well that hire purchase agreement is existing on the vehicle, abetted the first and second accused for disposal of the vehicle dismantling the same to him. Accused 1 and 2 had fraudulently and dishonestly represented to the complainant by pleading for finance help through hire purchase agreement on condition to repay the same but has not only failed to pay the amount but also disposed off the vehicles dismantling the vehicles, as per the abatement of the third accused. Thus accused 1 and 2 had committed offences punishable under Sections 420 and 406 I.P.C. and third accused is liable for abatement thereof. Hence the complaint.

The petitioner would contend that accused 1 and 2 are fictitious persons that the complainant has got no locus standi to file the complaint that the hire purchase agreement was not filed to substantiate the allegations made with regard to the terms contained therein that the vehicles was not dismantled and disposed off to him, but it was in excellent running condition and he was using it openly that though the complaint was registered in 1989, there was no progress in the investigation and in view of the above grounds, the complaint is liable to be quashed. For contra, Mr. T. Sudanthiram, the learned Counsel appearing for the second respondent and Mrs. D. Kalaiselvi, the learned Government Advocate appearing on behalf of the first respondent would submit that the allegations in the complaint do make out offence alleged against the petitioner herein and that other matters pertain to the region of investigation and hence the complaint cannot be quashed at the threshold as against the petitioner/third accused.

The first contention of the petitioner is that the complainant has no locus standi to file the complaint before the learned Metropolitan Magistrate. The complainant is G.M. Buvaneswaran, Manager, M/s. B.C. Bohra, Financiers, Mahavir Colony, Madras-7. The petitioner would contend that the complainant is not the financier and he is neither the owner of the car TSB 2851 nor the person who entered into the alleged hire purchase agreement and he was only a Manager and as such he cannot file the private complain. In the first Information Report in this case, the said G.M. Bhuvaneswaran is shown as the person who gave the First Information Report. He is the Manager of the Financier which had entered into a hire purchase agreement with accused 1 and 2. The vehicle bearing Registration No.TSB 2851 is subject mailer of hire purchase agreement and only in respect of that vehicle, the offence is said to have been committed. While so, the Manager of the Financier is a competent person to prefer the complaint. Further more, both the offences which are under Sections 420 and 406 I.P.C. are cognizable offence regarding which when information was given, the concerned police officer is duty bound to investigate. In this case, the complaint has been forwarded by Metropolitan Magistrate u/s 156(3) Criminal Procedure Code, directing the police officer to investigate the cognizable offences. In the above circumstances, it cannot be stated that the complainant has got no locus standi to prefer the private complaint. I am unable to accept the contention of the petitioner in this regard.

The petitioners further submission was that accused 1 and 2 are fictitious persons. Whether they are real or fictitious persons is a fact which can be found out only during the course of investigation. The case is now in the investigation stage. At this stage, I cannot straightaway accept the petitioner''s contention that accused 1 and 2 are fictitious persons, when positive allegations are made in the complaint that accused 1 and 2 entered into an agreement of hire purchase with the financier. It is for the investigating officer to find out whether these allegations are true or not. At this stage, I cannot presume that they are fictitious and non-existent persons and quash the F.I.R. at the threshold.

The next contention of the petitioner was that the allegations made in the complaint that the vehicle was dismantled and disposed off is not true and to substantiate his contention, he has filed xerox copies of various bills for purchase of petrol for the car bearing Registration No.TSB 2851. Here again, as to the region of investigation, to find out whether the cap was dismantled and disposed off as has been alleged in the complaint or whether it was in excellent running condition and handed over to the petitioner in the circumstances stated by him in this petition. That is a matter to be found out during the course of investigation. The petitioner is within his right to produce the originals of these documents before the investigating officer and substantiate his claim that the car was given to him in an excellent condition. Now at this stage, when positive allegations are made that the car was dismantled and disposed off, pending investigation, I cannot strait away accept these bills, the genuineness or otherwise can be considered only on proper investigation and not on the F.I.R. itself.

In State of Uttar Pradesh Vs. Pussu alias Ram Kishore, the scope of proceedings under S.432, Crl.P.C. to quash the proceedings initiated under the provisions of Criminal Procedure Code was considered and the Apex Court was laid as follows:

It is therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers u/s 482 of the present Code.

So unless the allegations in the complaint do not make out the offences, the complaint or proceedings thereon cannot be quashed.

In the instant case, the allegations against the third accused, the petitioner herein are as follows:

Finally the complainant has no other go, except to make enquiry to financial brokers and nearby persons of the accused and came to know that the above named accused 1 and 2, in order to commit wrongful loss to the complainant dismantled the vehicles and disposed it off to the third accused the third accused knowing fully well that hire purchase agreement is existing on the vehicle abetted the first and second accused disposed the vehicle by dismantling the same to him. Thereby the first and second accused above named fraudulently and dishonestly represented before the complainant for financial help through hire purchase agreement to the tune of Rs.74.750/- in respect of the vehicles bearing Regn. No.TSB 2851 on a condition to repay the same in 36 monthly (sic) not only failed to pay the amount fully but also disposed of the vehicle by dismantling the vehicle as per the abatement of the third accused and thereby disposed the vehicle by dismantling the vehicle to the thud accused by 1 and 2 accused.

In the earlier part of the complaint, the material terms of the hire purchase agreement entered into by accused 1 and 2 with the financier are set out. As per the said terms, the accused have no right to transfer or change any part or parts of the vehicle and the complainant has got the right to seize the vehicle for default of any single instalment. The portions which I have extracted above, together with the terms of hire purchase agreement which has been set out in the complaint would make out an offence against the petitioner for abatement of the aforesaid offences. So the complaint cannot be quashed at the threshold.

In Sardar Trilok Singh and Others Vs. Satya Deo Tripathi, the facts were that the complainant had entered into a hire purchase agreement with the accused in respect of a truck. As per the terms of the hire purchase agreement, the accused/financier is cm H ltd to seize the vehicle in case of default of payment of any instalment due under the hire purchase agreement. The complainant had committed default in payment of the instalment. By exercising his right under the hire purchase agreement, the financier had forcibly seized and removed the truck. The complainant preferred the complaint regarding the above forcible seizure and removal of the truck. It was held that the proceedings initiated were clearly abuse of the process of the court and the criminal proceedings were quashed holding that the dispute is purely of civil nature even assuming the facts stated by the complainant were substantially correct. This ruling is not applicable to the facts of the instant case, in view of the above allegations made in the complaint and portions of the complaint which I have extracted above. In S.D. Ashok Kumar v. State by the Sub-Inspector of Police 1990 L.W. (Crl.) 10 Justice T.S. Arunachalam has held that where the allegations in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged, in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the F.I.R. to decide whether the offence alleged is disclosed or not and that the broad proposition that the court can in no case interfere with the investigation of the case, does not appear to be justified. If allegations in the complaint do make out the offences alleged, the complaint cannot be quashed pending investigation.

Regarding the submission made by the petitioner that though the case was registered in 1989, no progress was made, on that count the complaint cannot be quashed at this stage. The period of limitation prescribed u/s 468 of the Code is not applicable to offence u/s 420 I.P.C. Further more, only at the time of filing of the final report, if the offence alleged is barred by the provisions of Section 468 of the Code, the court is barred from taking cognizance of the offence. So principles laid down in Jagannathan v. State 1983 L.W. Crl. 250 are not applicable to the facts of this case. None of the grounds taken by the petitioner finds acceptance with me.

In view of the above, the petition shall stand dismissed.