TMI Blog2001 (3) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of ₹ 48,00,000/- on 23-3-1989 from M/s. Coromandal Finance Company Limited, which was later amalgamated with Mercantil Credit Corporation in 1992. The petitioners have also executed a Deed of Hypothecation on 23-3-1989. The complaint was registered against the petitioners on the ground that they have not made payments. The Creditor preferred a complaint before the Deputy Commissioner of Police, Chennai. It is also seen that the petitioners have committed default in making payments and out of the total amount borrowed, a sum of ₹ 50,21,060/- have been paid in instalments on various dates. Though the petitioner have borrowed a sum of ₹ 48,00,000/-, M/s. Mercantile Credit Corporation Limited issued a notice on 17-8-1994, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein have borrowed a sum of ₹ 48,00,000/- from the creditor. It is also equally not in dispute that a portion of the debt has been cleared and a portion of the debt remains unpaid. The question is whether the creditor can prefer a complaint to the respondent and in such case whether the respondent can register a case in Crime No.459 of 2000 under Section 403, 405, 420 I.P.C 5. The relevant provisions of I.P.C reads as under: 405: Criminal Breach of trust: Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to trespass. But nowhere, the clause of repossession says that the creditor can use his own muscle force to repossess the property. As pointed out by their lordships, the right created by the Hypothecation Deed is that the Creditor can repossess the property under due process of law. 8. The next question that would arise is what is the nature of the dispute that has arisen out and therefore, we have to find out whether prima facie the complaint would indicate that the petitioners had any dishonest intention at the time of entering into the Hypothecation agreement. 9. I have already referred to the nature of the rights created by a Hypothecation Deed. The possession itself did not change hands. In other words, it is not as if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that any person shall retain any propery; or (b) Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. In paragraph 14 of the Judgment, it is stated that: On a reading of the section, it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived, would not do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ients of the offence alleged against the accused, the Court should not quash the complaint but if the allegations did not constitute any offence as alleged and appear to be patently absured and improbable. Court should not hesitate to quash the complaint. Their Lordships of the Apex Court has pointed out that the Court has to assess whether Civic Profile would out weigh the Criminal outfit . 14. Analysis of the complaint would show that the petitioners have entered into an agreement by way of Hypothecation Deed and have borrowed monies and repaid a portion of the same and a portion of the debt is yet to be satisfied. The complainant's grouse is that he attempted to take possession of the properties as per the clause contained ..... X X X X Extracts X X X X X X X X Extracts X X X X
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