Sominder Singh vs State Of Kerala
2021 Latest Caselaw 1617 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

     FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942

                          Crl.MC.No.1059 OF 2015

    AGAINST CC NO.841/2014 ON THE FILES OF THE CHIEF JUDICIAL
                  MAGISTRATE'S COURT, THRISSUR


PETITIONERS/ACCUSED NOS.1 & 2::

      1      SOMINDER SINGH
             AGED 44 YEARS, S/O REGHBIR SINGH, FLAT 401, TOWER 8,
             THE CLOSE NORTH, NERVANA COUNTRY, SECTOR 50, GURGOAN,
             GURGOAN SOUTH CITY, II GURGOAN, HARYANA -122018,
             PRESENT ADDRESS UNIT 202, IIND FLOOR, CAMPUS 3B, RMZ,
             MILENIA BUSINESS PART 143, DOCTOR M.G.R.ROAD,
             PERUNGADI, CHENNAI - 600096.

      2      PAUL AUGUSTINE, AGED 35 YEARS, S/O.AUGUSTINE
             POTHENITHODU HOUSE, KOTHAMANGALAM, RAMALLOOR DESOM.

             BY ADVS.
             SRI.P.VIJAYABHANU (SR.)
             SRI.M.S.UNNIKRISHNAN
             SRI.JITHIN PAUL VARGHESE

RESPONDENTS/STATE & DEFACTO COMPLAINANT:

      1      STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

      2      SHAJAN ANTONY, AGED 50 YEARS, S/O.ANTONY,
             BAVELI HOUSE, MANDAPATHIL LANE, MISSION QUARTERS,
             CHEMBOOKKAVU VILLAGE, THRISSUR.

             R1   BY   PUBLIC PROSECUTOR
             R2   BY   ADV. ENOCH DAVID SIMON JOEL
             R2   BY   ADV. SRI.S.SREEDEV
             R2   BY   ADV. SRI.RONY JOSE

OTHER PRESENT:

             SRI.K.B.UDAYAKUMAR, SR.PP

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD            ON
15.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.MC.No.1059 OF 2015                 2




                                   ORDER

Dated this the 15th day of January 2021

The petitioners are the 1st and 2nd accused in C.C. No.841/2014

on the file of the Chief Judicial Magistrate Court, Thrissur. The

above case was charge sheeted by the Thrissur East Police against

the petitioners and two others alleging offences punishable under

Sections 406 & 420 Indian Penal Code (IPC). The case was

originally registered based on a private complaint filed before the

jurisdictional Magistrate Court, which was forwarded under

Section 156 (3) Cr.P.C.

2. The prosecution case in brief is like this:- The de-facto

complainant/2nd respondent herein and his daughter had entered

into a loan agreement at 0% interest with the Daimler Financial

Services India Private Limited for the purchase of a Mercedez-

Benz- E 250 CDI car from Rajasree Motors Private Limited, which is

the authorised dealer of Mercedez-Benz car. The agreement was

executed on 28.02.2014. The 0% interest scheme was intended for

2013 model Mercedez-Benz- E 250 CDI car. The de-facto

complainant handed over 30 post dated cheques as security for

the repayment of the loan which was around Rs.31, 65,000/- After

the disbursal of the loan the de-facto complainant expressed his

desire to buy a 2014 model Mercedez-Benz- E 250 CDI car. After

negotiation, another loan agreement was entered for purchase of

2014 model Mercedez-Benz- E 250 CDI car, after canceling the

earlier loan agreement for the purchase of 2013 model car. The

second agreement was on 25.03.2014. At that time 48 post dated

cheques were handed over to the financiers. The 2 nd

respondent/de-facto complainant alleged that though the

agreement dated 28.02.2014 was canceled, the company had not

returned the 30 cheques and in the meanwhile the company had

encashed one of the above EMI cheque which was for an amount

of Rs.1,05,500/- The de-facto complainant would further allege that

the company and its officials, by encashing the cheques had

fraudulently obtained Rs.1,05,500/- and thereby committed the

abovesaid offences.

3. Heard learned counsel for the petitioners and the

counsel for the 2nd respondent. I also heard the learned Public

Prosecutor.

4. The learned senior counsel Sri.P. Vijayabhanu argued

the case on behalf of the petitioners/accused 1 & 2 as instructed.

The senior counsel submitted that even if the entire allegations in

Annexure B Final Report are accepted in toto, the offence under

Section 406 and 420 IPC is not made out. The senior counsel

submitted that the admitted case of the de-facto complainant is

that 30 cheques were handed over to the company as per an

agreement dated 28.02.2014. Thereafter one cheque was

presented before the Bank by the company and that cheque was

honoured. Subsequently, on 11.04.2014, the amount covered by

that cheque was returned to the 2 nd respondent through online

transaction. Annexure C is the document to show that the amount

is transferred to the 2nd respondent. The counsel submitted that

there is absolutely no criminal intention on the part of the

petitioners. According to the senior counsel the ingredients of

Section 406 and 420 IPC is not made out prima facie in this case.

There is no loss sustained to the de-facto complainant. The balance

cheques were returned to the de-facto complainant subsequently.

Out of the total 30 cheques, 28 cheques were returned to the

de-facto complainant. One cheque was presented before the Bank

and honoured and subsequently the amount covered by that

cheque was also transferred back to the 2 nd respondent. As far as

the balance one cheque is concerned, the senior counsel

submitted that the same is lost and the petitioners will not

proceed based on that cheque. The learned Senior counsel also

relied the judgment of the Apex Court in V.Y. Jose v. State of

Gujarat [2009 (3) SCC 78], R. Kalyani v. Janak C. Mehta [2009 (1)

SCC 516] and Sharon Michael v. State of Tamil Nadu [2009 (3) SCC

375], to substantiate his contention.

5. The counsel for the 2nd respondent submitted that this

is a clear case of cheating. According to the counsel, the dates of

these transactions are relevant and that itself would reveal the

criminal intention of the petitioners. According to the counsel, the

first agreement was on 28.02.2014. On that day 30 cheques were

handed over to the petitioners. The subsequent agreement was

on 25.03.2014 by which 48 cheques were handed over to the

petitioners. But on that day the 30 cheques were not returned.

Instead of that one of the cheque was presented before the Bank

by the petitioners. That itself shows the criminal intention of the

petitioners. The counsel submitted that there is evidence to show

that the cheques were entrusted to the petitioners and also to

show that the petitioners presented the cheque before the Bank.

There is evidence to show that the cheque which was presented

was honoured. Therefore, the counsel submitted that it is a clear

case in which the petitioners committed offence under Sections

406 and 420 IPC. The learned counsel for the 2 nd respondent relied

on several judgments of the Apex Court to substantiate his case.

He relied the Apex Court judgment in Ghanshyam v. State of

Rajasthan [2014(2) SCC 683], Suryalakshmi Cotton Mills Ltd. v.

Rajvir Industries Limited and Others [2008 (13) SCC 678],

Vijayasarathi R.K. (Prof.) and Another v. Sudha Seetharam and

Another [2019 (1) KLD 532 (SC)] and also the judgment of this Court

in Damodara Panicker v. State of Kerala [2019 (3) KLT 573], etc.

6. After hearing both sides, according to me, there is

some force in the argument of the learned Senior counsel. The

judgments relied by the learned counsel for the 2 nd respondent are

regarding the ingredients to attract the offence under Sections

406 and 420 IPC. The counsel also relied the judgment of the Apex

Court to substantiate that the jurisdiction of this Court to invoke

the powers under Section 482 Cr.P.C. is limited. There is no dispute

on these legal aspects.

7. But, the admitted prosecution case is that the de-facto

complainant approached the petitioners for availing a loan for

purchase of a Mercedez-Benz car. There was an agreement for the

same on 28.02.2014. 30 post dated cheques were issued by the 2 nd

respondent to the petitioners. Subsequently, the 2 nd respondent

decided to purchase a 2014 model car and he decided to cancel the

earlier agreement. Accordingly a fresh agreement was executed

on 25.03.2014 and another 48 post dated cheques were issued to

the petitioners. The case of the 2 nd respondent is that when there

was a second agreement on 25.03.2014 and the agreement dated

28.02.2014 is got cancelled, the petitioners with a criminal intention

presented one of the post dated cheque handed over to the

petitioners at the time of the earlier loan agreement dated

28.02.2014.

8. According to the 2nd respondent, this is without the

knowledge of the 2nd respondent. It is also an admitted case that

the cheque was honoured. It is further admitted by the 2 nd

respondent that the amount covered by the cheque was

subsequently transferred to the 2nd respondent. According to the

2nd respondent, this was done when a notice was issued by the 2 nd

respondent to the petitioners. But a perusal of Annexure C will

show that it was on 11.04.2014 whereas the notice was issued on

12.04.2014. The other case put forwarded by the 2 nd respondent is

that the remaining cheques were not returned to the 2 nd

respondent immediately after canceling the earlier loan agreement

dated 28.02.2014. According to the 2 nd respondent, those cheques

were returned only on 16.08.2014. Even if these admitted case of

the 2nd respondent are accepted, the ingredients of Section 406

and 420 IPC is not made out. There may be some violations of the

agreements executed between the parties. Violation of a clause in

a loan agreement will not amount to a criminal offence. Moreover,

it is an admitted fact that there is no loss sustained to the 2 nd

respondent because the amount covered by the cheque which was

presented by the petitioners before the Bank and subsequently

honoured was already returned to the 2nd respondent.

9. This is a case charge sheeted in 2014. This criminal

miscellaneous case was filed in 2015 and the matter was stayed by

this Court at the time of admission itself. This criminal

miscellaneous case is pending for the last 5 years before this Court

and the lower court proceedings were also stayed. It will be an

abuse of process of court to continue the criminal prosecution

against the petitioners in the facts and circumstances of this case.

Therefore this criminal miscellaneous case is allowed

and all further proceedings against the petitioners in C.C.

No.841/014 on the file of the Chief Judicial Magistrate Court,

Thrissur, are quashed.

Sd/-

P.V.KUNHIKRISHNAN

JUDGE Skk//16012021

APPENDIX PETITIONER'S EXHIBITS:

ANNEXURE A TRUE COPY OF THE PRIVATE COMPLAINT PREFERRED BY THE 2ND RESPONDENT HEREIN BEFORE THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, THRISSUR AGAINST THE PETITONERS/ACCUSED

ANNEXURE B TRUE COPY OF THE FINAL REPORT IN CRIME NO.2107/2014 OF THRISSUR EAST POLICE STATION, THRISSUR DISTRICT

ANNEXURE C TRUE COPY OF THE RELEVANT PAGE OF THE BANK STATEMENT PERTAINING TO DAIMLER FINANCIAL SERVICES PRIVATE LIMITED

RESPONDENTS' EXHIBITS: NIL