The Petitioner, who has been arrayed as A1 in CC.No.255/2004, has filed this Criminal Original Petition to quash the complaint.
2. The Respondent/complainant has filed the private complaint for the offences under Section 7 of the Tamil Nadu Money Lenders Act and Section 4 of the Tamil Nadu Prohibition of Charging Exorbitant Interest Act, before the learned Judicial Magistrate, Panruti against one Meenakshisundaram in the capacity of Manager of M/s.Citycorp Finance (India) Limited and one K.Thanappan, Manager of M/s.Sriram Transport Finance.
3.The Respondent/complainant is said to have purchased a Swaraj Mazda Van bearing Registration No.TN-31-D-7787 and the Petitioner Company had financed to an extent of Rs.4,58,000/-. The 2nd accused is its Agent. According to the complainant, he had paid all the installments with the office of the 2nd accused and had obtained receipts. It is further stated that when he approached the petitioner Company, he had come to know that the interest was calculated at 10.5% p.a for 47 months at Rs.4,58,000/-, instead of 4.5% p.a. and on that basis, he had been directed to pay the remaining amount, in default to pay the penalty. The Respondent has received a letter from the office of the 2nd accused on 22.7.2004 that there is a balance of Rs.70,542/- and if he failed to pay, his vehicle would be seized. In such view of the matter, the Respondent had filed the complaint, stating that the petitioner company and the 2nd accused have been charging exorbitant interest and they are liable to be punished under the Money Lenders Act and the Tamil Nadu Prohibition of Charging Exorbitant Interest Act.
4. The learned Magistrate had taken cognizance of the said complaint and issued process to the accused made therein. The summons issued to the petitioner Company herein represented by its Manager Meenakshisundaram had been returned on the ground that there was no such person. In response to the last summons sent by the Court, the petitioner K.K.Saravanakumar appears to have responded, stating that there is no such person in the name of Meenakshisundaram nor there was any such designation. Immediately, the original complaint seems to have been altered and a fresh prayer had been included by implicating the Petitioner herein as an accused, representing the Petitioner Company. Aggrieved against the same, this Criminal Original Petition has been filed.
5. The learned counsel for the Petitioner strenuously contended that the complaint filed earlier did not contain the name of the petitioner herein and when the petitioner responded to the summons issued in the name of Meenakshisundaram, stating that there was no such person in the name of Meenakshisundranm, alterations had been made in the complaint implicating the petitioner herein as Accused, representing the Company, M/s.Citicorp Finance (India) Limited without any basis. He would further contend that the Magistrate has allowed the complainant to include the name of the petitioner as representing the M/s.Citicorp Finance (India) Limited, in spite of the fact that he has taken cognizance of the complaint in the name of the Meenakshisundaram, representing the said Company. He would contend that the Magistrate cannot exercise his inherent power by permitting the Respondent to rectify the defects in the complaint, once he had taken cognizance of the complaint and the same is illegal.
6. The learned counsel for the Petitioner has placed reliance on the decision of this court rendered in the case of A.L.Lakshmanan Vs. K.N.Palanisamy (2007-2-TNLR-167-Mad), wherein this court has set aside the orders passed by the Magistrate, allowing the complainant to rectify the defects in the complaint.
7. In the decision referred to above, the Magistrate passed the order, allowing the complainant to make correction in the date of the promissory note. This court relying on the decision rendered in the case of A.Vinayagam Vs. Dr.Subash Chandran (2000-1-LW-Cri-460), set aside the order passed by the Magistrate, emphasizing that the defects in the complaint cannot be allowed to be rectified, once the Magistrate has taken cognizance of the matter, as nothing should result in prejudice to the accused.
8. The provisions of
Section 464 of Code of Criminal Procedure can be applied only in case when there is an error or omission or irregularity in framing of the charge. But, in this case, the Petitioner, who has responded to the summons sent by the Court, stating that there is no such person in the name described as Managing Director, has been implicated and the Magistrate has allowed the complainant to make correction in the complaint regarding the name and designation of the Petitioner Company. Thus, clearly an illegality has been committed by the Magistrate.
9. It is well settled that the paramount consideration is the dispensation of justice and nothing should result in prejudice to the accused by condoning such mistakes made in the complaint. The Magistrate without any authority or power has allowed the complainant to make corrections in the complaint, after taking the complaint on cognizance. It is purely an illegality committed by the Magistrate.
10. The next ground urged by the learned counsel for the Petitioner is that the interest charged under the hire purchase agreement can in no way be termed to be "interest", which is defined in
Section 2 of the Tamil Nadu Prohibition of Charging Exorbitant Act and in support of his contention, he relied on the decision rendered by the Madurai Bench of this Court in the case of T.Senapathy Vs. State by Inspector of Police, District Crime Branch, Trichy and two others (2008-1-TLNJ-490-Cri), wherein it is held that the "loan" defined in the Tamil Nadu Prohibition of Charging Exorbitant Interest Act 2003 does not cover the hire purchase agreement and the definition "interest" defined in
Section 2 of the said Act cannot be applied to the interest levied under the hire purchase agreement.
11.
Section 2 of the said Act defines "daily vatti", "debtor", "exorbitant interest", "hourly vatti", "kandhu vatti", "loan", "meter vatti" and "thandal" as follows:-
"daily vatti", means interest on daily basis which will work out to an interest rate more than that fixed by the Government under Section 7 of the Money Lenders Act.
"debtor", means a person who receives loan for exorbitant interest.
"exorbitant interest", means and includes daily vatti, hourly vatti, kandhu vatti, meter vatti and thandal.
"hourly vatti", means interest on hourly basis which will work out to an interest rate more than that fixed by the Government under Section 7 of the Money Lenders Act.
"kandhu vatti", means an interest which will work out to an interest rate more than that fixed by the Government under Section 7 of the Money Lenders Act.
"loan", means an advance of money for daily vatti, hourly vatti, kandhu vatti, meter vatti or thandal.
"meter vatti" means an interest which will work out to an interest rate more than that fixed by the Government under Section 7 of the Money Lenders Act for every day on the loan amount not paid within the stipulated time.
"thandal" means interest which will work out to an interest rate more than that fixed by the Government under Section 7 of the Money Lenders Act which is to be collected daily along with the part of the loan amount.
12. The interest charged by the Financier in the hire purchase business cannot come under the definition of "exorbitant interest" defined under the said Act. In fact, in the hire purchase agreement, there is a clause that increase/decrease of one quarter per cent in the Bank interest rate over the rate prevailing on the date of the agreement would be binding on the hirer. Clause 3 of the hire purchase agreement cum guarantee agreement entered into between the Petitioner company and the Respondent reads as follows:-
"3. Increase in hire purchase installments: It is hereby agreed that for any increase/decrease of one quarter percent in the Bank Interest rate (Citibank Prime Rate) over the rate prevailing on the date of this agreement. There shall be a pro-tanto increase/decrease in the quantum of hire purchase installments stipulated under this Agreement to be paid by the Hirer(s) to the Owner and the Hirer(s)/owners agrees to pay such pro-tanto increase in the quantum of hire purchase installments on receipt of notice thereof.
13. The Respondent has agreed to the said terms and conditions and now he cannot contend that it is an exorbitant interest, to claim benefit under the Tamil Nadu Prohibition of Charging Exorbitant Interest Act. The dispute regarding the levy of interest under hire purchase agreement, if any, would be within the realm of the civil dispute and may not amount to a criminal offence. The Magistrate, without adverting to the allegations made in the complaint to see, whether a prima facie offence is made out, in a mechanical manner, issued process against the Petitioner, which warrants interference by this court.
14. In the decision rendered in the case of M/s.Pepsi Foods Limited and another Vs. Special Judicial Magistrate and others (AIR-1998-SCC-128), the Honourble Supreme Court has held that summoning of an accused in a criminal case is a serious matter and the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. When the complaint does not show the role of the accused and the preliminary evidence recorded makes out no case against the accused and there was no sufficient ground for proceeding against the accused, the said proceedings cannot be allowed to continue.
15. In this case, the learned Magistrate has failed to take into consideration of the relevant facts and circumstances. The judicial process should not be an instrument of oppression or needless harassment to the accused and therefore, there lies responsibility and duty on the Magistrate to find out as to whether the concerned accused should be legally responsible for the offence charged over. The Magistrate has not adverted to the averments made in the complaint and has failed to apply his mind before issuing process to the Petitioner. Viewed at any angle, the Respondent has abused the process of court and has made accusation against the petitioner, without any prima facie case only to harass him. Therefore, the complaint against the Petitioner is liable to be quashed and accordingly, it is quashed and this Criminal Original Petition is allowed.
Srcm To:
The Public Prosecutor, High Court, Madras