O R D E R

This criminal original petition has been filed seeking quashment of the case in CC No.397 of 2023 on the file of the Judicial Magistrate Court, Paramakudi.

2.The case of the prosecution in brief:-

The de-facto complainant lodged a complaint stating that he purchased a Maruthi Baleno Car bearing registration No.TN-65-BY-2961 through the finance arranged by Kotak Mahindra Prime Limited, Madurai Branch and was paying the monthly installment from February'2019. In spite of that, they imposed penalty. When that was questioned by him, various threatening calls came to his phone from various numbers. He was asked to pay Rs.48,666/-. On 24/01/2023 at about 01.00 am in the night, the Car was found stolen. He verified the CCTV camera. He found that the Car was stolen by the Manager and Collection Manager of Kotak Mahindra Prime Limited, Madurai Branch and other persons. On the basis of the complaint, the case was registered in Crime No.40 of 2023 was registered for the offence under section 379 of IPC. After completing the investigation, final report was filed and it was taken cognizance in CC No.397 of

2023 by the Judicial Magistrate, Paramakudi.

3.Seeking quashment of the same, this petition has been filed by the petitioners on the ground that it is an issue between the borrower and the financier; The borrower failed to pay the installments properly; As per the hypothecation agreement, proper action was initiated and arbitration proceedings was also initiated in Arbitration Case No.ARC/KMPL/869; The order was passed by the sole arbitrator, on 25/11/2011 directing the de-facto complainant to surrender the vehicle; It also further ordered that in the event of failure on the part of the de-facto complainant, the petitioners Company can repossess the vehicle and take further action for sale, etc; That award was also communicated to the de-facto complainant; In spite of repeated request made, that was not paid to him. So the vehicle was repossessed, on 24/01/2023. So according to the petitioners, since the vehicle belongs to the petitioners' company, the offence under section 379 of IPC is not made out.

4.Heard both sides.

5.Even though the second respondent was served, he failed to appear. The petitioner was heard and the learned Additional Public Prosecutor was also heard. 6.From the facts narrated above, it is seen that the complaint lodged by the de-facto complainant is nothing, but it is a clear abuse of process of law.

7.Now we will straightaway go to the arbitration award passed by the Sole Arbitrator in ARC/KMPL/869/2020. Wherein we find that even though in spite of service of notice on the respondent namely T.A.Kannan and Nirmala.S, failed to appear. On the basis of the records produced, the arbitration award was passed, on 25/11/2021 by relying upon the hypothecation agreement between the parties. The order passed reads as under:-

“10.After due consideration of the aforesaid facts and Circumstances, and evidence adduced before me in this tribunal, this Arbitral Tribunal makes the proclamation of Award as follows:-

“a.The Respondents are liable to pay Rs.5,38,587/- (Rupees Five Lakhs Thirty Eight Thousand Five Hundred Eighty Seven Only) to the claimant. Hence a sum of Rs.

5,38,587/- (Rupees Five Lakhs Thirty Eight Thousand Five Hundred Eighty Seven Only) is due and payable to the Claimant by the Respondents. Therefore, I direct the Respondents either Jointly or Severally to pay to the Claimant the aforesaid sum and the Arbitral Tribunal makes an Award for a sum of Rs.5,38,587/- in favour of the Claimants to be paid by the Respondents.

b.I hereby direct the Respondents either Jointly or Severally to pay interest on Rs.5,38,587/- (Rupees Five Lakhs Thirty Eight Thousand Five Hundred Eighty Seven Only) to the Claimant along with interest @ 24% per annum from the date of this Award I.e., 25.11.2021 till the realization of payment.

c.I hereby direct the Respondents to surrender the subject vehicle failing which, the Claimant is hereby p