Petitioners are accused 1 and 2 in C.C.No.62 of 2012 on the file of the Judicial First Class Magistrate Court-II, Cherthala. The case arose out of a private complaint filed by the 1st respondent against the petitioners and other accused persons.
2. Allegations in the complaint, in short, are as follows:The 1st respondent/complainant advanced an amount of `7,14,800/- to the 1st petitioner/1st accused on the guarantee of accused 2 and 3 for purchasing a chassis of a lorry. Annexure-I is the agreement executed between the complainant and the accused 1 to 3 in connection with the transaction. As per the terms of the agreement, 1st accused received a chassis fitted with an engine. The amount was to be paid in 48 instalments starting from 20.10.2008. The complainant averred that not even a single instalment was paid by accused 1 to 3. They intended to cheat the complainant and removed the chassis to the place of the 4th accused. Thereby, the accused persons have committed offences punishable under Sections 406, 418, 420, 424, and 120B read with Sec.34 of the Indian Penal Code.
3. Heard the learned counsel for the petitioners/accused 1 and 2 and the learned counsel for the 1st respondent/complainant. Learned Public Prosecutor is also heard.
4. Learned counsel for the petitioners submitted that the allegations in the complaint will not satisfy the legal requirements for attracting the aforementioned offences. According to him, the transaction was a loan transaction and the chassis of the lorry remained in the ownership of the 1st respondent. Apart from that, as per order passed by the learned Magistrate, which is produced as Annexure-III, the vehicle had been seized by issuing a search warrant under Sec.93 of the Code of Criminal Procedure (in short, “Cr.P.C.”). Learned counsel for the petitioners submitted that as per Annexure-I agreement, the petitioners were entitled to possess the vehicle and they were entitled to construct body on the chassis so as to make it plyable on the road. The entire allegations in the complaint, if taken together, will not make out any offence, contended the learned counsel for the petitioners.
5. Per contra, learned counsel for the 1st respondent/complainant contended that the 1st petitioner is the owner of the vehicle as per the terms and conditions of Annexure-I, agreement. My attention is drawn to clause 3.6 in Annexure-I, which will indicate that the borrower is the owner of the vehicle and it was only hypothecated to the finance company as security for securing a loan. According to the learned counsel for the 1st respondent, the accused persons have acted in violation of the terms of Annexure-I, agreement and tried to remove the security given for the money received by way loan violating the terms and conditions in Annexure-I. That apart, it is the definite case of the complainant that the chassis has been entrusted to the 4th accused for dismantling so as to unlawfully appropriate the security of the loan. It is further submitted that all these matters are to be proved at the time of trial and it cannot be decided in a proceedings under Sec.482 Cr.P.C.
6. Considering the entire facts and circumstances of the case, I find that the petitioners are not entitled to get any relief at this stage in a petition under Sec.482 Cr.P.C. All questions can be taken up by the petitioners at the time of framing charge in the matter. Therefore, I do not find that this is a fit case to invoke jurisdiction of this Court under Sec.482 Cr.P.C. to quash the complaint.
7. It is submitted that the petitioners have not appeared before the court below so far. Learned counsel for the petitioners submitted that the petitioners are hailing from Kasaragod. The matter is pending before a court at Cherthala and the petitioners are appearing through a counsel. 1st petitioner/1st accused is a lady, who is a permanent resident of Kasaragod.
2nd petitioner/2nd accused is not available in the station at present. Considering the fact that the 1st petitioner is a lady, the trial court may permit her to claim discharge in absentia. In the case of 2nd petitioner, the court below shall consider whether he should be allowed to be heard on the question of discharge without appearance. I do not wish to express any opinion on that aspect. Court below shall consider the plea of discharge untrammelled by any of the observations contained in this order.
With the above observations, the petition is disposed of. All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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