The revision petitioner herein is the second accused in C.C.No.8600 of 2002 on the file of the XIV Metropolitan Magistrate, Egmore, Chennai. The petitioner herein had filed a petition to drop the proceedings against the respondent and it was dismissed by the learned Magistrate. Challenging the said order, the petitioner has preferred this Criminal Revision Case before this Court.
2. The learned counsel on record on behalf of the petitioner, who filed this revision, had filed a memo stating that the counsel are no longer appearing, since they have already given consent for change of vakalat.
3. Heard the learned counsel appearing for the respondent.
4. The respondent herein had filed a private complaint against this petitioner and another accused for the alleged offences under
Sections 406 and
420 I.P.C. It appears from the lower Court record that after the complaint being taken on file, one Chandiran was examined as P.W.1 on 02.12.2003 and the petition for discharge was filed by the petitioner on 10.12.2003.
5. The case of the complainant in brief is that the complainant was a dealer in consumer durable articles. The first accused, who was employed at Alpha Matriculation Higher Secondary School and the second accused, who was the Principal of the said school, have approached the complainant on 24.10.1996 and the first accused had purchased a Videocon Colour T.V. and Allwyn Refrigerator under hire purchase agreement and it was agreed to pay a monthly hire charge of Rs.1,150/- and it should be paid in 24 instalments. The second accused/petitioner herein stood as a guarantor in the said agreement. There was a default in paying the monthly hire charges. Subsequently, the complainant came to know that the articles, which were purchased under hire purchase agreement, have been sold and in spite of repeated request and demand, the accused have failed to pay the amount. P.W.1-Sales Representative of the company was examined and nine exhibits were marked.
6. The revision petition is filed on the ground that even as per the case of the complainant, the ingredients of the offence under
Sections 406 and
420 I.P.C. are not attracted and this case is purely civil nature and as far as the petitioner is concerned, he stood only as a guarantor.
7. The learned counsel for the respondent submitted that as per the hire purchase agreement-Ex.P.5, the accused is liable to pay monthly amount and till the dues are cleared, the accused should retain the purchased articles and the complainant has got lien over the property. Violating the conditions in the hire purchase agreement, the articles have been sold and as such, the petitioner, who is signatory in the agreement-Ex.P.5 is liable under
Sections 406 and
420 I.P.C. and a prima facie case has been made out against the petitioner.
8. This Court has considered the submissions made by the learned counsel for the respondent and perused the records.
9. After examination of P.W.1, the petitioner has chosen to file an application to drop the proceedings against the respondent. In a case of warrant procedure instituted otherwise than on a police report under
Section 245 of Cr.P.C., the accused may be discharged after recording all the evidence on the side of the complainant as referred to under
Section 244 of Cr.P.C. or even at the previous stage.
10. As per the case of the complainant and as per the documents filed through P.W.1, it was only the first accused, who had purchased the property and the second accused stood only as a guarantor. The first accused is the hirer and the second accused stood as a guarantor. Of course, as per the agreement, the guarantor agrees and guarantees for the due performance by the hirer as per the terms and conditions of the agreement. The second accused also has given a letter to the complainant under Ex.P.7 admitting the liability. In such a case, mere violation of the conditions of the hire purchase agreement may not attract the ingredients of the offence of cheating. As per the case of the complainant, there is a civil liability on the part of the petitioner, but there is no material to show that there was a dishonest breach of agreement by the petitioner who was only a guarantor. There is no prima facie material to frame charges against the petitioner for the offences under
Sections 406 and
420 I.P.C.
11. In the result, the proceedings against the petitioner in C.C.No.8600 of 2002 on the file of the learned XIV Metropolitan Magistrate, Egmore, Chennai, is quashed and the Criminal Revision Case is allowed.
17.09.2010 Index : Yes Internet : Yes jrl To XIV Metropolitan Magistrate, Egmore, Chennai.
T.SUDANTHIRAM,J.
jrl CRL.R.C.No.1288 of 2004 17.09.2010