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1.U.K. Goel, Deputy General Manager (Hire Purchase) M/S Tata Engineering And Locomotive Company Limited, Bureau Of Hire Purchase Credit, Centre- 1 (27th Floor), Work Trade Centre, Cuffe Parade, Mumbai-400 005 2. K.N. Raghvan, General Manager, Chandra Brothers, Narayan Nagar, Post Officce Bhalua, Police Station Bodh Gaya, District-Gaya 3. S.S. Sharma, Assistant General Manager, Hire Purchase, M/S Chandra Brothers, At Present Enar Assistant General Manager, Steel , City Bokaro. 4. Binod Kumar Sinha, Assistant Sales Officer, Chandra Brothers, , Narayan Nagar, Post Officce Bhalua, Police Station Bodh Gaya, District-Gaya-8234231 5. Anup Kumar Sharma, Proprietor M/S Kumar Securities Services, Resident Of Mohalla Pitamaheshwar, Police Station- Civil Lines, District-Gaya v/s The State Of Bihar

    Criminal Miscellaneous No.1415 OF 1998

    Decided On, 27 October 2010

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE RAKESH KUMAR

    For the Appearing Parties: S.D. Sanjay, Akash Chaturvedi, Gopal Pd. Gupta, Rajendra Pd. Singh, Advocates.



Judgment Text

RAKESH KUMAR, J.

(1.) Five petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of entire criminal proceeding including the order dated 6.9.1996 passed by Sri B.K.Sinha, Judicial Magistrate, 1st Class, Gaya in Complaint Case No.250 of 1995. By the said order, learned Magistrate has taken cognizance of offences under Sections 406, 403 and 420 of the Indian Penal Code.

(2.) Short fact of the case is that Opp.Party no.2 filed a complaint in the court of learned Chief Judicial Magistrate, Gaya vide Complaint Case No.250 of 1995 for the offences under Sections 406,403,379,411,424,426,485,467, 468 and 420 of the Indian Penal Code against altogether seven persons including aforesaid five petitioners. It has been alleged in the complaint petition that the complainant had purchased a truck, bearing Registration No.BR-02A/9534 on hire purchase basis. The complainant was to pay the total amount of Rs.4,79,733/- and out of that initially the complainant paid Rs. 1,17,972 and the remaining amount of Rs.3,74,560/- was to be paid in 23 monthly instalments and accordingly an agreement was entered in between the petitioners and the Financer. It was disclosed in the complaint petition that despite the complainant was paying monthly instalments repeatedly the possession of vehicle in question was taken by the accused persons. However, it was delivered to the complainant. It was alleged that on 13.3.1994 at Chauparan in the district of Hazaribagh , while the truck in question was coming from Dehri, petitioner no.5 with the help of hired men took possession of the truck in question, which was loaded with rice and an amount of Rs.15,000/- in cash was also kept in the dash-board of the said vehicle. Thereafter, it was alleged that the complainant went to the office of petitioner nos. 3 and 4, i.e. dealer of Telco Company and thereafter a settlement was made for payment of Rs.1 Lac for the purposes of release of the vehicle and thereafter the complainant made payment of Rs.48,000/- even then the vehicle in question was not released. Subsequently, the complainant learnt that the vehicle in question was auction sold to M/S Amar Transport, who has also been arrayed as accused no.5 in the complaint petition. After filing of the complaint petition, the complainant was examined on S.A. and in support of the complaint petition, the complainant produced two witnesses at the stage of enquiry. After completing the enquiry, by order dated 6.9.1996, the learned Magistrate took cognizance of the offences under Section 406, 403 and 420 of the Indian Penal Code against all the seven accused persons including the petitioners and directed for issuance of summons against accused persons for facing the trial.

(3.) Aggrieved with the order of cognizance, the aforesaid five petitioners approached this Court by filing the present petition. On 21.1.1998 while issuing notice to Opp.Party no.2, this Court directed that in the meantime, further proceedings in Complaint Case No.250 of 1995 pending in the court of Judicial Magistrate, 1st Class, Gaya shall remain stayed.

(4.) Despite valid service of notice at the stage of admission, Opp.Party no.2 did not appear. Thereafter on 7.5.1999, the petition was admitted for hearing. This Court directed that till any order is passed the interim order dated 21.1.1998 will continue.

(5.) While challenging the order of cognizance as well as entire criminal proceeding in Complaint Case No.250 of 1995, Sri S.D. Sanjay, learned counsel appearing on behalf of the petitioners has argued that since the complainant had entered into hire purchase agreement and he was only a hirer of the vehicle in question, the Financer i.e. M/S Tata Engineering and Locomotive Company Limited (hereinafter referred to as ?the Telco?) has rightly taken possession of the vehicle in question due to the reason that the complainant was a habitual defaulter. It was submitted by Sri Sanjay, learned counsel for the petitioners that on earlier occasion also due to default, the possession of the vehicle was taken over by the Financer, but taking sympathetic attitude on earlier occasion; the vehicle in question was released in favour of the complainant on further certain conditions. It was further submitted that since the complainant had failed to make payment of due instalments under the terms and conditions of the hire purchase agreement, the possession of vehicle was taken over by the Financer. Learned counsel for the petitioners has specifically referred to Clause-7 of the hire purchase agreement, which has been brought on record as Annexure-1 to the petition. While referring to Clause -7 of the hire purchase agreement, it has been submitted that the possession of the vehicle in question has rightly been taken over and for such action, it cannot be said that any criminal act has been committed by any of the petitioners. Learned counsel for the petitioners has submitted that petitioner no.1 was earlier Assistant General Manager of M/S Tata Engineering and Locomotive Company Limited and petitioner no.2 is the General Manager of Chandra Brothers, Gaya, which is a dealer of Telco Company and petitioner nos.3 and 4 are Assistant General Manager and Assistant Sales Officer respectively of Chandra Brothers. Learned counsel for the petitioners while referring to the averments made in paragraph nos.7 and 8 of the petition, has described the procedure, whereby the hire purchase agreement was entered in between the parties. The hire purchase agreement was entered on 12th October, 1992. As per agreement, according to Sri Sanjay, learned counsel for the petitioners, Opp.Party no.2 was required to pay the first hire rent of Rs.17, 061/- due on 12th November, 1992 and the rest of the hire rents on 12th of each succeeding months at the rate of Rs.16, 250/- till the entire hire rent along with any further amount due on the said agreement. Learned counsel for the petitioners has specifically referred to paragraph 12 of the petition, wherein detail of payment has been mentioned. It has been reiterated that on earlier occasion also due to default the vehicle was re-possessed. However, subsequently, the same was returned to the complainant since it was assured to clear the outstanding hire rents/ compensation at an early date. It was further submitted that since the complainant did not make any payment, as assured, the vehicle was again re-possessed on 13th March, 1994 at Chauparan , Hazaribagh . It has been stated that there was rice loaded in the vehicle at the time of re-possession. After preparing an inventory, the rice was unloaded and returned to Opp.Party no.2. Again, Opp.Party no.2 approached petitioner no.2 after three months after the vehicle was re-possessed, for the release of the vehicle and agreed to pay Rs. 1 Lac being part of the outstanding hire rent compensation to get the said vehicle released. It was submitted that as Opp.Party no.2 failed to make necessary payment in spite of past assurance, the said vehicle was not released to him. Subsequently, the said vehicle was advertised for sale in the daily news paper of ?Nav Bharat Times? on 11th July,1994 and thereafter on 11th October,1994 the said vehicle was sold to M/S Amar Transport, Balasinor, Gujrat. It has been submitted by the learned counsel for the petitioners that the vehicle in question was re-possessed on 13.3.1994 and thereafter it was auction sold on 11th October, 1994. However, the complainant in the month of June, 1995 came out with the present complaint petition. The present complaint petition was filed on 5.6.1995 and the learned Magistrate even after knowing well that the complainant was not the owner of the vehicle, due to the reason that he had taken the vehicle under the hire purchase agreement, the learned Magistrate has incorrectly and illegally taken cognizance of the offences. Learned counsel for the petitioners while submitting that under the agreement of hire purchase the vehicle in question was rightly re-possessed and for such re-possession it cannot be said that any offence was committed by either of the petitioners. Learned counsel for the petitioners has submitted that under the hire purchase agreement time without number the Hon?ble Supreme Court has held that the prosecution for such re-possession may not be initiated against the Financer. Learned counsel for the petitioners has specifically relied on Judgments of the Hon?ble Supreme Court , reported in AIR 1979 SC 850(Trilok Singh and Ors Vs. Satyadeo Tripathi), (2001) 7 SCC 417 Charanjit Singh Chadha Vs. Sudhir Mehra and (1996)7 SCC 213(Gurmit Singh Vs. State of Punjab).

(6.) Sri Rajendra Prasad Singh learned Senior Counsel appearing on behalf of Opp.Party no.2 has vehemently opposed the prayer of the petitioners. Learned Senior Counsel at the very outset has submitted that time without number it has been held that power under Section 482 of the Code of Criminal Procedure may not be exercised at the initial or interlocutory stage of a criminal proceeding. It has been submitted by learned counsel for Opp.Party no.2 that at the moment the learned Magistrate, on the basis of materials available on record, has taken cognizance of the offences. It was submitted by Sri Singh, learned Senior Counsel appearing on behalf of the Opp.Party no.2 that the contents of the complaint petition itself makes out a specific case of cognizable offence and, as such, the learned Magistrate has rightly taken cognizance of the offences. Accordingly, it has been prayed to reject the present petition.

(7.) Besides hearing learned counsel for the parties, I have perused the materials available on the record. It is not in dispute that the vehicle in question was taken by Opp. Party no.2 (complainant) under the hire purchase agreement. A copy of the said agreement has been annexed as Annexure-1 to the petition. As per Clause -7 of the said agreement, the owners were entitled to terminate with or without previous notice, the said agreement and forthwith retake and recover possession of the vehicle at any of the following events: (a) If for any reason whatsoever any hire payment or part thereof is in arrear and left unpaid for a period seven days after the date fixed for its payment. (b)If the hirer commits or suffers any breach of the conditions and obligations herein stipulated to be observed and performed by him. Similarly, there are other conditions for re-possessing the vehicle in question. The averment made in the complaint petition itself makes it clear that the complainant had become defaulter and in that event if the vehicle was re-possessed by the Financer, it cannot be termed as an offence. At this stage it would be appropriate to quote some observation of the Hon?ble Supreme Court recorded in (2001)7 SCC 417 (Charanjit Singh Chadha and Ors Vs. Sudhir Mehra. In paragraph 11 , the Hon?ble Supreme Court in the facts and circumstances of the case has held as follows: ?11. ---------------------------. If the hirer himself has committed default by not paying the instalments and under the agreement the appellants have taken re-possession of the vehicle, the respondent cannot have any grievance. The respondent cannot be permitted to say that the owner of the vehicle has committed theft of the vehicle or criminal breach of trust or cheating or criminal conspiracy, as alleged in the complaint. When the agreement specifically says that

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the owner has got a right to re-possess the vehicle, there cannot be any basis for alleging that the appellants have committed criminal breach of trust or cheating.? The Hon?ble Supreme Court in the said case has further held that the hire purchase agreement in law is an executory contract of sale and confers no right in rem on the hirer until the conditions for transfer of the property to him have been fulfilled. Therefore, the re-possession of goods as per the term of the agreement may not amount to any criminal offence. (8.) In view of law laid down by the Hon?ble Apex Court as well as in view of the facts and circumstances of the present case, this Court is of the opinion that allowing the prosecution of the petitioners in complaint case No.250 of 1995 shall amount to allowing abuse of the process of the court. With a view to prevent abuse of the process of the court as well as for the ends of justice, it is necessary to interfere with the impugned order of cognizance as well as the proceeding in Complaint Case No.250 of 1995. 9. Accordingly, the order dated 6.9.1996 passed by Sri B.K.Sinha , Judicial Magistrate, 1st Class, Gaya as well as entire criminal proceeding in Complaint Case No.250 of 1995 is hereby set aside and the petition stands allowed.
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