Raju Kurian vs State Of Kerala And Ors

This case has been filed under Sec.482 Cr.P.C. to quash the proceedings against the petitioner/3rd accused in C.C.601/2014 on the file of the

Judicial First Class Magistrate Court-III, Kottayam.

The case against the petitioner and two others were charge- sheeted by the Sub Inspector of police, Kottayam West police station under Secs 403,

406, 420, 468 and 120B r/w 34 IPC.

Prosecution case is that 1st accused availed a loan of Rs.12.5 Lakhs from the Indian Overseas Bank (IOB) Kottayam, T.B.Road branch for

purchasing an Innova car. The 3rd respondent/de facto complainant who is the Manager of the bank issued two demand drafts for Rs.9 Lakhs and 2.5

Lakhs each on 25.1.2013 and handed over a finance note and covering letter and a filled up Form-20, in order to hand over the same to the dealer of

the vehicle for endorsing the hypothecation details in the R.C. Book. But in pursuance of the conspiracy hatched among accused Nos. 1 to 3, the

Innova car purchased by the 1st accused was registered temporarily on 15.4.2013. Thereafter a permanent registration was obtained on 8.5.2013

without noting the hypothecation details in the R.C book. Thereafter accused No.1 fraudulently transferred the vehicle to CW11 and thereby obtained

unlawful enrichment and caused wrongful loss to the bank. It is further alleged that accused No.1 further failed to remit the installments. Then the de

facto complainant searched for the vehicle and found subsequently that the vehicle was clandestinely sold out to CW11. There upon a complaint was

filed by the 3rd respondent/de facto complainant before the Sub Inspector against accused No.1 and Manager of Nippon Toyota Corporation Ltd. A

crime was registered against accused No.1 and Manager of Nippon Motor Corporation Ltd. After investigation, petitioner herein had been arrayed as

3rd accused and final report was filed for the offence aforementioned.

According to the petitioner, 3rd respondent/de facto complainant is the real culprit in the transaction. In order to cover up his culpability, a false

complaint has been lodged. De facto complainant and 1st accused are the real conspirators behind all the transactions. Complaint was filed only to

escape from the departmental enquiry and other proceedings already initiated against him. It is also alleged that while advancing the loan the de facto

complainant totally violated the procedure adopted by the Banks. Normally the procedure for advancing the loan is to issue the demand draft directly

to the dealer from the bank with covering letter and a Form-20 noting the hypothecation details in the R.C book. That procedure was not complied.

The de facto complainant transferred the entire loan amount to the account of 1st accused and he produced the demand draft directly to the dealer

towards balance payment of the Innova car. The petitioner being the Manager of the dealer, had no option than to complete the sale procedure,

registration and delivery of the vehicle. There is no evidence to show that the 3rd respondent ever informed the petitioner regarding the advancing of

loan to the 1st accused for purchasing the vehicle. So the petitioner is not aware of the loan transaction between the bank and the 1st accused. The

petitioner has not committed any illegality or irregularity in the sale of Innova car purchased by the 1st accused and regarding the registration of the

vehicle in the RTO office. CW2, the Chief Manager of the IOB in his statement revealed lapses on the part of the de facto complainant. On an earlier

occasion also, de facto complainant made such a malpractice. The de facto complainant did not insist the 1st accused to produce the copy of the

registration certificate though it was registered on 15.4.2013. Apart from a bald vague allegation of conspiracy, there is no allegation against the

petitioner. Neither the de facto complainant nor witnesses stated anything against the petitioner to connect him with the offence. So the action of the

court below in taking cognizance against the petitioner is legally unsustainable and is an abuse of process of law. Hence this case has been filed to

quash the proceedings.

Notice was issued to the respondents. 1St & 2nd respondents appeared through the learned Public Prosecutor Smt. V.Sreeja and the 3rd

respondent appeared through Sri.K.N. Sivasankaran. Heard both sides.

According to the learned counsel for the petitioner, the entire dealings with respect to the vehicle pertaining to the 1st accused has been done by the

de facto complainant/3rd respondent bank. According to him, it is the de facto complainant who issued the two demand drafts for Rs.9 Lakhs and 2.5

Lakhs each on 25.1.2013. Normal procedure while advancing a vehicle loan is to issue the demand draft directly to the dealer from the bank along

with covering letter and Form-20 for noting the hypothecation details in the R.C book. But contrary to the normal procedure, the de facto complainant

transferred the entire loan amount to the account of the 1st accused and the 1st accused produced the demand draft directly to the dealer and

transferred the balance payment of the Innova car. The petitioner, being the Manager of the dealer of the vehicle, has no other option than to

complete the sale procedure, registration and delivery of the vehicle. He would also contend that either at the time of giving the complaint or while

giving 161 statement, the 3rd respondent/ de facto complainant did not state anything connecting the petitioner in the transaction. So without any

material he has been arraigned as 3rd accused and that would cause irreparable injury and loss to him.

The learned counsel produced a copy of the 161 statement of the de facto complainant additionally at the time of argument. Annexure A1(6) is the

copy of the complaint filed by the de facto complainant before the SHO Kottayam West police station. In that complaint he has stated that the first

accused and representative of second accused/manager of Nippon Corpn.Ltd has received the DDs and letter from the bank. At the time of giving

161 statement it has been stated by him that as informed from the Managers including Sales Manager of the Nippon Tayotta that the entire

responsibility is upon the Finance Manager, he contacted the Finance Manager, Regin Raj directly and over phone but he did not give any satisfactory

explanation and was trying to evade him. On going through the 161 statement of the de facto complainant also it is seen that there is no reference with

regard to the name of the petitioner/3rd accused. But on going through the copy of the final report, Annexure-A3, enclosed with the file, it is seen that

the Chief Manager of IOB has been questioned by the police and his statement have been enclosed with final report. He has given a detailed

statement regarding the procedure for advancing the vehicle loan. In page No.34 of the file, an additional statement of Govindan Potti has been

enclosed with. In that he has stated that the sales Officer, sales Manager and the 1st accused would be having knowledge regarding the bank loan and

transactions where proforma invoice have been given and it is also stated by him that the sales Officer and sales Manager and customer Punnuz, ie,

1st accused, together were cheating the bank. It is also stated by him that the covering letter and filled up Form-20 given by the bank Manager was

removed and a false Form-20 has been prepared and they cheated the bank.

Learned counsel for the 3rd respondent bank vehemently contended that the de facto complainant was having no bad records in his career and he

was actually been cheated by the accused persons. He would also contend contend that the de facto complainant filed complaint before the police as

per the information regarding the factors which is within his knowledge and only on conducting investigation by the police officer, the involvement of

the 3rd accused/petitioner has been revealed. Sri.Govindan Potti who was the Chief Manager of the bank has stated that till date there is no allegation

against third respondent of receiving any favours and any illegal gratification colluding with the customers. It is also stated by him that even for

unintentional laches departmental action would be taken and hence departmental enquiry was recommended against him. It is also stated by him that

the Managers have the authority to advance loan even to ten vehicles for self employment at a time. He also stated that the sales Officer, sales

Manager of the Dealer Company are well aware that there would be bank loan in transactions where proforma invoice was given. But they colluded

with first accused and cheated the Bank. Moreover Sec.120B IPC also has been incorporated in the final report filed by the investigating officer. So

the contention of the learned counsel for the petitioner that the petitioner is totally innocent and nobody has given any statement against him and the

real culprit is the de facto complainant etc., is not seems to be prima facie acceptable. So at this stage, it cannot be found that the continuation of the

proceedings against the petitioner as 3rd accused in C.C.601/2014 would be an abuse of process of law.

It is relevant in this context to quote R.P. Kapur v. State of Punjab [AIR 1960 SC 866] wherein while dealing with the inherent power of the High

Court it has been held that inherent power of High Court cannot be exercised in regard to matters specifically covered by the other provisions of the

Code. It is also held that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse

of the process of any court or otherwise to secure the ends of justice. It is also held that the ordinarily criminal proceedings instituted against an

accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an

interlocutory stage.

In CBI v. Ravi Shankar Srivastava [AIR 2006 SC 2872], it has been held that the inherent jurisdiction is to be exercised carefully and with caution

and only when such exercise is justified by the tests specifically laid down in the section itself.

As discussed above, prima facie there is nothing to show that the continuation of the proceedings against this petitioner in C.C.NO.601/2004 on the

file of Judicial First Class Magistrate Court-III, Kottayam would be an abuse of process of law.

In the result, the Crl.M.C. is devoid of any merit and hence dismissed.