This Criminal Original Petition is filed to quash the proceedings in CC.No.6665/2005 on the file of the learned Judicial Magistrate III, George Town, Chennai.
2. The brief facts, which are necessary for the disposal of this Criminal Original Petition, are as follows:-
The Respondent/complainant has filed the private complaint against the Petitioners herein for the offences under
Section 406,418 420, 464 and
468 of IPC read with
Section 34 of IPC. The 1st petitioner entered into a hire purchase agreement dated 16.4.2003 with the Respondent for purchasing the For Car bearing Registration No.KL-2J-111 and the total hire purchase amount is Rs.1,64,400/-. Out of the said amount, the 1st Petitioner has paid a major portion of a sum of Rs.1,34,400/- with interest. The 1st Petitioner has committed default in payment of the remaining installments of Rs.30,000/-. Instead of invoking the arbitration clause to collect the balance amount due from the Petitioners, the Respondent has resorted to criminal proceedings by filing the above said complaint for the offences as stated above.
3. It is submitted by the learned counsel for the Petitioners that even if the Petitioners have become a defaulter in payment of any one of the installments, then as per the terms of the hire purchase agreement, the Financier/Respondent can invoke the arbitration clause to collect the balance amount due to him and the judicial process should not be used to oppress or to cause needless harassment to the Petitioners by resorting to criminal proceedings. He would further contend that except the allegation of default committed in payment of the last installment, no other material is available on record to support the criminal proceedings initiated by the Respondent. Incidentally, he would point out to the contradictory allegation made in the complaint that in paragraph 7, it is alleged by the complainant that the vehicle has been sold to a third party and the same has been dismantled and sold as scrap, whereas in paragraph 7 of the complaint, it is alleged that the accused is attempting to sell the vehicle without the knowledge of the complainant. Besides the fact that there is no other material on record to fasten the criminal liability on the Petitioners, the Respondent is not able to assertively say that the vehicle has been sold.
4. On a perusal of the complaint, it is seen that the averments made therein does not show any criminal intention on the part of the Petitioners to cheat the complainant in any manner. Admittedly, there is a clause in the hire purchase agreement to seize the vehicle by the complainant, in case if there is a need for such action. Except the hire purchase agreement, the R.C Copy with endorsement and due chart, no other document is filed by the complainant along with the complaint to substantiate the allegation that the vehicle is sold to a third party. Even assuming that the 1st Petitioner has committed default in payment of any one of the installments, even then as there is an arbitration clause to recover the amount and also a provision to seize the vehicle, it would only be a civil dispute and it cannot be said that they have committed an offence as alleged. Hence, the facts contained in the complaint constitute only a civil wrong and the ingredients of criminal offence are wanting.
5. To make out a case of criminal breach of trust, it is not only sufficient to show that the money has been retained, but it must also be shown that the accused had disposed of the vehicle dishonestly, so as to attract the above said offences. The main criteria to attract the above said offences are deception at the inception of the transaction and inducing such person to do or omit to do something, which he would not have done when he was not so deceived.
6. In this case, even according to the complainant, a major portion of the amount has been paid by the Petitioners and the amount due is only a small amount. That apart the Petitioners have been paying the installments regularly, except the last installment, which can be recovered by resorting to the remedy suggested in the hire purchase agreement and not by initiating criminal proceedings. If the criminal proceedings are allowed to continue, then it will be an abuse of process of court.
7. In view of the above said reasons, this court is of the considered view that the impugned complaint deserves to be quashed and accordingly, it is quashed and this Criminal Original Petition is allowed. Consequently, the connected MP is closed.
Srcm To:
The Public Prosecutor, High Court, Madras