Nithin Thomas vs State Of Kerala
2021 Latest Caselaw 306 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

            THE HONOURABLE MR.JUSTICE V.G.ARUN

WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942

                Crl.Rev.Pet.No.562 OF 2020

    CC 1668/2017 DATED 08-07-2020 OF JMFC, KALAMASSERY
                       (TEMPORARY)

CRIME NO.597/2017 OF Kalamassery Police Station , Ernakulam


REVISION PETITIONER/S:

     1     NITHIN THOMAS
           AGED 29 YEARS
           S/O. P.P THOMAS, PUTHENPURAKKAL HOUSE,
           NEDUGADAPPALLY P.O, KOTTAYAM 686 545
           FORMERLY SALES EXECUTIVE, PINNACLE MOTORS
           PRIVATE LIMITED

     2     SEBI YACOB,
           AGED 36 YEARS
           S/O. P.K CHACKO, PARAMBATHIL HOUSE,
           ALLAPRADESAM, VENGOLA P.O, PERUMBAVOOR,
           ERNAKULAM 683556

     3     TITH JO
           AGED 37 YEARS
           S/O. JOSEPH, VETTIYAT HOUSE, ANGAMALY,
           ERNAKULAM 683572
           FORMERLY ASSISTANT GENERAL MANAGER, PINNACLE
           MOTORS PRIVATE LIMITED

           BY ADVS.
           SRI.C.HARIKUMAR
           SRI.RENJITH RAJAPPAN

RESPONDENT/S:

     1     STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
           KERALA, ERNAKULAM 682 031

     2     REMADEVI,
 Crl.R.P.No.562/2020
                             2



            AGED 55 YEARS
            W/O. ASHOKAN, AISWARYA, DIG LANE, ELAMAKKARA,
            ERNAKULAM 682 026

      3     ASHOK P,
            AGED 57 YEARS
            S//O. PONNUSWAMY, AISWARYA , DIG LANE,
            ELAMAKKARA, ERNAKULAM 682 026


OTHER PRESENT:

            PP AMJAD ALI

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 18-09-2020, THE COURT ON 06-01-2021 PASSED THE
FOLLOWING:
 Crl.R.P.No.562/2020
                               3



                           ORDER

Dated this the 06th day of January, 2021

The revision petitioners are accused 1 to 3 in

C.C.No.1668 of 2017 pending on the files of the

Judicial First Class Magistrate, Kalamassery. The

case originated from a complaint filed by

respondents 2 and 3/complainants and forwarded to

the Police under Section 156 (3) Cr.P.C. The

allegations in the complaint are to the following

effect:

The complainants had approached M/s.Pinnacle

Motors Pvt. Ltd, the authorised dealers of Fiat

Cars, with the intention of purchasing a Fiat

Punto Diesel Car and to ply it as a taxi. The

complainants wanted a brand new car, since they

would not otherwise be eligible for Government's

subsidy for taxi cars. The revision petitioners, Crl.R.P.No.562/2020

who were working at the dealership, as Sales

Executive, Sales Manager and Assistant Manager

respectively, promised to deliver a brand new

Punto Car, by bringing down the vehicle from the

latest stock available at the Pune Plant of Fiat

Company, if the vehicle is booked by remitting

Rs.25,000/- towards advance. Accordingly,

complainants booked the vehicle on 31.12.2016.

After a few days, the revision petitioners

informed the complainants that the vehicle is on

its way from Pune and asked them to pay

Rs.1,75,000/- more. The complainants were made to

believe that the vehicle will be ready for

delivery within three or four days of payment of

the amount. Believing the assurance given by the

revision petitioners, the complainants made the

additional payment. By 07.01.2017, a total amount

of Rs.7,40,000/- was paid by the complainants

towards the price of the car. Out of this amount, Crl.R.P.No.562/2020

Rs.4,50,000/- was generated through a loan availed

from the Punjab National Bank. But, contrary to

the assurance given, the vehicle was not delivered

even after remittance of the full price. Physical

delivery was effected only on 30.01.2017.

Thereafter, while the vehicle was being driven

with its first customer inside, it stopped on the

middle of the road abruptly and the entire diesel

leaked on the road. Thereupon, the bonnet of the

vehicle was opened, and to their dismay, the

complainants found certain engine parts to be

rusty and worn out. Having become suspicious

about the date of manufacture of the vehicle, the

particulars in the RC book was verified and it was

found that the vehicle was manufactured in May,

2016. Further, the tax invoice-cum-bill issued to

the complainants showed another person's name as

the original purchaser and the warranty of the

vehicle was shown to have been in operation from Crl.R.P.No.562/2020

30.09.2016. It therefore became evident that the

accused had sold an old vehicle to the

complainants, contrary to their promise to

deliver a December, 2016 or newer model vehicle.

2. Based on the complaint, Crime No.597 of

2017 was registered at the Kalamassery Police

Station and final report was filed arraying the

revision petitioners and two others as accused.

The jurisdictional court took cognisance for the

offences punishable under Sections 420, 468 and

471 r/w 34 of IPC. Later, the revision petitioners

along with the 5th accused moved application for

discharge under Section 239 Cr.P.C, which the

trial court dismissed vide Annexure A2 order.

Aggrieved, the criminal revision petition is

filed.

3. Sri.C.Harikumar, learned Counsel for the

revision petitioners assailed the findings in the

impugned order and contended that even if the Crl.R.P.No.562/2020

allegations are accepted in their entirety, no

offence is made out against the revision

petitioners. It is submitted that, other than

doing their duties as sales personnel of the

employer Company, the revision petitioners had

nothing to do with sale of the car to respondents

2 and 3. It is submitted that no assurance

regarding the make, model or date of manufacture

of the vehicle was given by the revision

petitioners. That, the respondents had taken

delivery of the vehicle after thorough inspection

and the revision petitioners cannot be attributed

with the intention to cheat, merely because the

vehicle had a mechanical snag on the second day of

its delivery. It is submitted that the

complainants had booked the vehicle in December,

2016 after availing discounts, including the year

end discount. A brand new vehicle was delivered

to the complainants, after sourcing the vehicle Crl.R.P.No.562/2020

from another dealer. It is submitted that the

revision petitioners have nothing to do with the

alleged forgery of the insurance cover note and

the ingredients of Section 415 being completely

absent, the prayer for discharge ought to have

been allowed. Reliance is placed on the decisions

of the Delhi High Court in Ashok Sachdev and

another v. G.S.Chowhan (Judgment dated 16.04.2012

in Crl.M.C.No.927 of 2011) and Ford India Ltd and

another v. Sunbeam Ancillary Pvt. Ltd (Judgment

dated 04.07.2008 in Crl.M.C.No.2804 of 2004),

which according to the learned Counsel, was

rendered under identical circumstances.

      4.     According         to        the       learned        Public

Prosecutor,      the very       fact that          the accused         had

sourced a vehicle from another dealer, even after

the employer Company having wound up the

dealership, is indicative of the intention to

cheat respondents 2 and 3. Sale of the 2016 May Crl.R.P.No.562/2020

model vehicle on 30.01.2017, knowing fully well

that the vehicle is purchased for the purpose of

plying it as a taxi, is further proof of the

dubious intention. It is contended that, the

question whether the revision petitioners had the

intention to deceive from the inception and

whether they are parties to the forgery of the

insurance cover note are all matters to be

considered during trial and that, at the stage of

framing charge, the court need only consider

whether a prima facie case is made out from the

materials produced by the prosecution.

5. On consideration of the pleadings and the

contentions it emerges that the vehicle sold to

respondents 2 and 3 on 30.01.2017 was manufactured

in May 2016. Further, in the bill generated after

repair, another person's name was shown as the

owner and the warranty of the vehicle was shown to

have commenced from 30.09.2016. That the vehicle Crl.R.P.No.562/2020

suffered a break down on the next day of its

delivery is not disputed. It is the admitted by

the revision petitioners that, for reasons beyond

their control, delivery of the vehicle did not

take place as expected. That, prior to delivery,

the Company; Pinnacle Motors Pvt.Ltd, had wound up

the dealership of Fiat Cars and the vehicle had to

be sourced from another dealer.

6. As per the prosecution allegation, even

though the insurance cover note for the vehicle

should have been taken with effect from

27.01.2017, the cover note was taken six days

thereafter, with validity from 03.02.2017 to

02.02.2018. It is alleged that the entries in the

cover note were subsequently corrected to make it

appear that the vehicle's insurance was valid from

27.01.2017 onwards. Even though the forgery is

alleged to have been committed by the fourth

respondent, the question as to whether the Crl.R.P.No.562/2020

forgery was committed in pursuance of the common

intention to cheat, can be decided only after

adducing evidence.

7. Yet another contention is regarding the

omission to include the employer Company or its

management as accused, without which the revision

petitioners, who are only employees of the Company

cannot be proceeded against. The specific case of

respondents 2 and 3 is that the revision

petitioners had induced them into paying the

advance amount and price of the vehicle by

promising to deliver the latest model car.

Moreover, if, at a later stage, it appears that

the company or its management ought to be roped in

as accused, the trial court can do so under

Section 319 Cr.P.C.

8. As regards the contention that the order

was not passed by the Magistrate who heard the

discharge petition, a perusal of the impugned Crl.R.P.No.562/2020

order shows that the learned Magistrate has

considered and dealt with all the contentions.

9. The decisions cited by the learned Counsel

for the revision petitioners were rendered under

entirely different set of facts and circumstances

and cannot hence be made applicable to the facts

of the instant case. In Ashok Sachdev, the

allegation of the complainant was that he had

visited the showroom and had purchased the car

relying on the credibility of Toyota. Further, in

the judgment, it is specifically noted that even

going by the complainant's version, the accused

had not represented the car to be a brand new one.

In Ford India Ltd, allegation was that the

vehicle had manufacturing defects and it was in

that context, the court held the remedy of the

complainant to be under the Consumer Protection

Act.

For the aforementioned reasons, I find no Crl.R.P.No.562/2020

merit in the revision petition. Accordingly, the

Criminal Revision Petition is dismissed.

Sd/-

V.G.ARUN JUDGE Scl/06.01.2021