1. Heard Mr. Rupjit De, learned counsel for the petitioner. Also heard Mr. H. Sarma, learned Addl. Public Prosecutor for the State, respondent No. 1 and Mr. Kanak Sarma, learned counsel assisted by Mr. Ditul Das, learned counsel for the respondent No.2.
2. The petitioner herein is a non-banking motor of finance company and the complainant/respondent No. 2 approached the petitioner company to finance him to purchase a TATA Ace Magic Vehicle from the dealer of Tata made motor vehicles, namely, M/s. Kiron Transport Private Limited, Guwahati. Accordingly, petitioner company financed an amount of Rs. 2,58,000/- and for such finance, on 10.07.2009 a hire-purchase agreement was executed between the petitioner Company and the borrower respondent No. 2/complainant towards said finance of his TATA Ace Magic vehicle bearing Registration No. AS18C1239, Engine No. 275IDI05FQZS56512 and Chassis No. MAT4451119VF13798 with the stipulated conditions that the said borrower shall repay the loan amount to the petitioner company in 47 equated monthly installments including interest. As the said borrower, after making payment of few installments, defaulting in making such monthly installments; having no alternative, the petitioner company invoked the Arbitration Clause as encrypted in the aforesaid agreement dated 10.07.2009 by initiating an arbitration proceeding being No. TMFL/9478/2012 against the said borrower/respondent No.2. Though, notice was served on the respondent No. 2, but he did not participate in the said arbitration proceeding. On 07.05.2012 in the said arbitration proceed
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ng an interim order was passed directing the borrower respondent No. 2 to hand over the said vehicle to the authorised representative of the petitioner company observing that in case said borrower fails to hand over the possession of said vehicle in question, the claimant/petitioner herein shall be able to take possession, seized and recover the said vehicle in question from him or from any other person who may be in possession of the vehicle in question and that until further directions, the petitioner company shall be able to keep the said vehicle in safe custody without causing loss or damages and that till possession of the vehicle is handed over or taken by the claimants/petitioner company, the borrower/respondent No. 2 or his servants and agents were restrained from selling the said vehicle in any manner what so ever. Later, on 17.12.2012, the arbitrator passed the final award in the said arbitration proceeding against the borrower respondent No. 2 wherein the following order was passed amongst others –(a) The borrower shall jointly and severally, pay to the claimants a sum of Rs. 237954.77 together with further interest thereon @ 18% per annum from 26.04.2012 till such payment is made or realised.(b) The amount mentioned above at clause (a) is secured by a valid and subsisting Hypothecation of the vehicle in question with Registration No. AS18C1239 in favour of the claimant/petitioner company and the said claimant is entitled to enforce and realise the amounts due and payable by the borrower by recovering/taking possession of the said vehicle and sell the same by public option or private treaty and appropriate the net sale proceeds thereof towards the outstanding amounts due and payable by the borrower.(c) In case the claimant/petitioner have possessed the vehicle and sold in pursuance of the Interim Order dated 07.05.2012 and thereafter, the said claimant shall adjust/appropriate the sale proceeds and give credit for the same towards the amount awarded in clause (a) above and in case the claimant recovers access amount, the same shall be refunded to the borrower.(d) The borrower shall pay a sum of Rs. 5000/- towards cost of arbitration and Arbitrator’s Fees.3. A copy of the said final award dated 17.12.2012 was communicated to the borrower/respondent No. 2 on 17.12.2012 itself.4. The respondent No. 2 on 21.03.2013 filed a criminal complaint in the Court of the Chief Judicial Magistrate, Goalpara being C R No. 197C/2013 against the General Manager of petitioner company, General Manager of Tata Motors Limited and two other personnel of said M/s. Kiron Transport Private Limited, Guwahati including its Managing Director (by name) and General Manager for commission of offences under Sections 120(B)/420/406/468/34 IPC. After receipt of said criminal complaint pertaining to C R No. 197C/2013, the learned CJM Goalpara transferred the said complaint to the Additional Chief Judicial Magistrate, Goalpara for necessary consideration and disposal of the same. After recording the statement of the complainant/borrower/respondent No. 2 under Section 200 CrPC on 03.04.2013 in said C R No. 197C/2013, by his order dated 12.04.2013 the learned Trial Magistrate i.e. the Addl. CJM, Goalpara took cognigance of the offences under Sections 120(B)/420 IPC against the present petitioner company and two other accused persons from the M/s. Kiron Transport Private Limited and issued summons to them fixing 15.05.2013 for their appearance.5. Due to non appearance of the petitioner’s company in the said complaint case CR No. 197C/2013, since 15.05.2013, the learned Addl. CJM, Goalpara by his order passed on 03.09.2013 in said C R Case issued Bailable Warrant of Arrest (BWA) for an amount of Rs. 1000/- against the petitioner company for its appearance in the matter.6. As in the said Criminal complaint without specifying any person of the petitioner company, merely lodged the allegation, it is submitted by the petitioner that there is no allegation against the petitioner company and as such, according to the petitioner the trial magistrate, i.e. the Addl. CJM, Goalpara committed illegally in issuing the impugned order dated 12.04.2013 in taking cognigance of the offences under Sections 120(B)/420 IPC and in issuing summons of the case against a non-existent designation, without specifying any person of the petitioner company in violation in provisions of law, the petitioner company preferred this criminal petition for quashing and setting aside the said impugned order dated 12.04.2013 passed in the complaint case CR No. 197C/2013 against the petitioner company as well as the proceeding of the said case in so far as the officials of the petitioner company is concerned, stating that it was filed by the borrower respondent No. 2 as a counter blast to the Arbitration Proceeding initiated by the petitioner company against him as noted above.7. Mr. K. Sarma appearing on behalf of the complainant/respondent No. 2/ borrower submitted that the said criminal petition is not maintainable as the person who filed the said petition has no locus to file the same and fake certificate was given to him by M/s. Kiron Transport Private Limited in conspiracy with Tata Motors only to harass him and all these are matter of evidence to be determined during the trial of the case and therefore, there is no scope to interfere with the impugned order dated 12.04.2013 passed in said complaint case CR Case No. 197C/2013 in the present proceeding under Section 482 CrPC.8. Learned counsel for the petitioner placed reliance on the Judgments of the Hon’ble Supreme Court in the case of Punjab National Bank and Others -Vs- Surendra Prasad Sinha, reported in (1993) Supp SCC 499 and Anup Sarmah -Vs- Bhola Nath Sharma, reported in (2013) 1 SCC 400. On the other hand Mr. K. Sarma learned counsel for the complainant/respondent No.2 relied on the Judgments reported in 1992 Supp (1) SCC 335 [State of Haryana -Vs- Bhajan Lal and Others], 2010 (1) GLT 588 [Jakir Hussain (Md.) and Others -Vs- Sabnam Begum] , 2010 (1) GLT 619 [Prem Das Dahiya -Vs- Dayashish Chakma (Dr.) and Another -Vs- Another], 2010 (2) GLT 535 [Pallav Das alias Kero Young -Vs- State of Assam and Another] and 2011 (3) GLT 554 [Om Prakash -Vs- Central Bureau of Investigation and Another].9. Heard the submissions made by the learned counsel for the parties and considered the Judgments cited by them.10. In the case of K.A. Mathai -Vs- Kora Bibbikutty, reported in (1996) 7 SCC 212, the Hon’ble Supreme Court have held that –“In case of default to make payment of installments the financier had a right to resume possession even if the hire-purchase agreement does not contain a clause of resumption of possession for the reason that such a condition is to be read in the agreement. In such an eventuality, it cannot be held that the financier had committed an offence of theft and that too, with the requisite mensrea and requisite dishonest intention. The assertion of rights and obligations accruing to the parties under the hire-purchase agreement wipes out any dishonest pretence in that regard from which it cannot be inferred that the financier had resumed the possession of the vehicle with a guilty intention.”11. The Hon’ble Supreme Court in the case of Charanjit Singh Chadha -Vs- Sudhir Mehra, reported in (2001) 7 SCC 417 have held that –“Recovery of possession of the vehicle by the financier owner as per terms of the hire-purchase agreement, does not amount to a criminal offence. Such an agreement is an executory contract of sale conferring no right in rem on the hirer until the transfer of the property to him has been fulfilled and in case the default is committed by the hirer and possession of the vehicle is resumed by the financier, it does not constitute any offence for the reason that such a case/dispute is required to be resolved on the basis of terms incorporated in the agreement.”12. In the case of Anup Sarmah -Vs- Bhola Nath Sharma, reported in (2013) 1 SCC 400, a case from this High Court, similar to the present case, the Hon’ble Supreme Court considering the law laid down by the said Hon’ble Court in the cases of K.A. Mathai (supra) and Charanjit Singh Chadha (supra) have held that –“In an agreement of hire purchase, the purchaser remains merely a trustee/bailee on behalf of the financier/financial institution and ownership remains with the latter. Thus, in case the vehicle is seized by the financier, no criminal action can be taken against him as he is repossessing the goods owned by him.”13. In the present case the TATA Ace Magic Vehicle bearing Registration No. AS-18C-1239 was purchased by the complainant by hire-purchase agreement from the petitioner company and the said vehicle was hypothecated to the petitioner company, which fact is admitted by the complainant himself. As per the said agreement dated 10.07.2009 between the complainant and the petitioner company, the financier petitioner company had made the payment of Rs. 2,58,000/-, whereas the complainant/borrower defaulted in making payment of monthly installments to the petitioner company and till such loan amount is cleared by the said borrower/ complainant, the petitioner company would remain as owner of the vehicle. Moreover, as per the terms and conditions incorporated in the agreement dated 10.07.2009 between the complainant and the petitioner company gave rise to a civil dispute, which is required to be decided by Civil Court only. Further, the said agreement includes arbitration clause and the Financer petitioner company invoked the provisions of said clause and the Arbitrator passed the order in favour of the petitioner company, which have attained finality by efflux of time.14. From the perusal of the criminal complaint dated 21.03.2013 filed by the borrower/complainant/respondent No. 2 pertaining to said CR Case No. 197C/2013, it is seen that the complainant did not state anything regarding the final award about the Arbitration Proceeding being No. TMFL/9478/2012 that was drawn against him by the petitioner company except the interim order dated 07.05.2012 passed in the said proceeding against him and made only a statement under Section 200 CrPC before the trial magistrate in said CR Case No. 197C/2013 that he received a notice from Bombay Court regarding his non-payment of installments for his said vehicle while. This clearly reveals that the complainant/respondent No. 2 was fully aware of the said Arbitration Proceeding No. TMFL/9478/2012. Moreover, in the said complaint, the complainant did not state as to how the General Manager of Tata Motor Finance Limited the petitioner Company is involved in the alleged crime.15. Further from the said criminal complaint dated 21.03.2013 pertaining to CR Case No. 197C/2013 of the complainant/respondent No.2 it is seen that all the accused of the said complaint are outside the territorial jurisdiction of the trial magistrate the Additional Chief Judicial Magistrate, Goalpara. But without making any statutory enquiry as required under section 202 CrPC, said trial magistrate by the impugned order dated 12.04.2013 passed in said complaint case CR No. 197C of 2013 took cognigance of the offences under Sections 120(B)/420 IPC against the petitioner company and two other accused persons named in the said complaint and issued process in the matter and summons to the accused persons for their appearance in the case.16. After the amendment of CrPC, by the Amendment Act of 2005, it is settled that with regard to private complaint, it is mandatory for the trial magistrate to postpone the issue of process against the accused persons when they are outside its territorial jurisdiction, as it was found necessary in order to protect innocent persons from being harassed by unscrupulous persons and making it obligatory upon the magistrate to enquire into the case himself, or to direct investigation to be made by a police officer, or by such other person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons in such cases.17. Moreover, in the present case, the Trial magistrate have also failed to consider the issue relating to delay in filing the said complaint by the complainant/borrower/respondent No. 2 as he filed the said complaint only on 21.03.2013, though he took the delivery of the vehicle in question on 09.07.2009 and the Arbitrator passed the award in the arbitration proceeding against the complainant on 17.12.2012 itself.18. In the case of Narmada Prasad Sonkar @ Ramu -Vs- Sardar Avtar Singh Chabara & Others, reported in (2006) 9 SCC 61, the Hon’ble Apex Court have held that –“If the magistrate had not followed the procedure and has failed to apply his mind as required by law, the order issuing process could be quashed but the Magistrate should be directed to reconsider the matter and pass fresh order in accordance with law.”19. For the reasons above and finding such procedural irregularities, the Court is of the view that if the impugned order dated 12.04.2013 passed by learned Additional Chief Judicial Magistrate, Goalpara in the complaint case CR Case No. 197C/2013 in taking cognizance of the offences under Sections 120(B)/420 IPC and in issuing summons to the accused persons in the said case including the petitioner herein is allowed to continue, it would be an abuse of the process of the court and as such, for the ends of justice, in exercise of the power vested under Section 482 CrPC, the impugned order dated 12.04.2013 passed by learned Additional Chief Judicial Magistrate, Goalpara in the complaint case CR Case No. 197C/2013 that was preferred by the respondent No. 2 is set aside and quashed.20. However, the learned Additional Chief Judicial Magistrate, Goalpara shall reconsider the matter pertaining to said complaint case being C.R. Case No. 197C/2013 of the complainant/respondent No. 2 and pass a fresh order on it in accordance with law.21. With the aforesaid observation and direction this petition stands allowed.22. Registry shall forward a copy of this order to the Additional Chief Judicial Magistrate, Goalpara for his necessary use.