D.K. Sinha, J.@mdashPetitioners have invoked the inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure for quashment of the Deoghar Town P.S. Case No. 96/2010 which was registered on 15.03.10, arising out of P.C.R. Case No. 133/2010, by which the Petitioners were alleged to have committed offence under Sections 379/384/34 of the Indian Penal Code. It was further requested for quashment of the entire criminal proceedings of the Petitioners arising out of the said case.
2. The complainant filed P.C.R. Case No. 133/2010 before the C.J.M., Deoghar narrating, inter alia, that he had purchased Earth Mover J.D. 3155 model of TATA Company with the financial assistance from TATA Motors Finance in the month of July, 2007 and the vehicle was registered vide Registration No. JH 15 D 3504. The complainant further narrated that he had to pay back the dues to the TATA Motors Finance in thirty-six equal installments in three years with the condition that TATA Company would remove technical defects if cropped up during one year of warranty period since the date of purchase, with the arbitration clause in the �Irrevocable Power of Attorney�. The complainant alleged that immediately after purchase, the Earth Mover developed some technical problem, which was duly intimated to both the manufacturer as well as the Finance Company and for the manufacturing defects he had to face problems in making payment of installments towards the loan advanced by the TATA Motors Finance, but the TATA Company failed to repair the Earth Mover and for that, he had to spend a lot to get it repaired and that he paid Rs. 13,00,000/- (Rupees thirteen lakhs) approximately to TATA Motors Finance against the loan advanced to him. It was specifically alleged that on 20.2.2010, the Petitioners came to him and wanted to take away the Earth Mover for repair, to which the complainant insisted to accompany them, but all the three returned back and later on came and took away his vehicle (Earth Mover) forcibly in his absence, which he could learn in the night when he returned back to his home. On the next day, he was informed by the cleaner of the Earth Mover that it was taken away by the Petitioners, thereby he was deprived of Earth Mover, which he had legally purchased. When the complainant contacted the Petitioners, he was apprised that he would get back his Earth Mover only upon payment of the entire dues of the loan amount of Earth Mover advanced to him. Thereafter, he filed a complaint for the alleged offence under Sections 379/384/34 of the Indian Penal Code and the C.J.M., Deoghar forwarded the complaint petition for institution of the police case u/s 154(3) of the Code of Criminal Procedure.
3. Pursuant to the notice received, complainant-opposite party No. 2 entered appearance by executing vakalatnama.
4. Heard Mr. Satyaprakash Sinha, the learned Counsel appearing on behalf of the Petitioners and Mr. Arvind Kr. Choudhary, the learned Counsel for the opposite party No. 2.
5. Mr. Sinha, the learned Counsel, submitted that Petitioner No. 1 Debashish Mohanty is Area Sales Manager, Petitioner No. 2 Ashish Mishra is Area Credit Manager and Petitioner No. 3 Prem Shankar Keshri is Collection Remedial Executive, E-Nxt. Financial Ltd. of Infrastructure Finance, Tata Capital Ltd. The complainant had brought about the case maliciously with ulterior motive to arm twist and extort the TATA Motors Finance for waiver of the balance huge loan amount. All the three Petitioners took their plea of alibi, which would be evident from their attendance register and also the payment made through credit card by the Petitioner No. 2 on the same day.
6. It would be relevant to mention, the learned Counsel submitted, that representatives of the TATA Motors Finance, who went to repossess the Earth Mover, had duly intimated the police after repossessing the Earth Mover. In the complaint petition, the time of occurrence has been mentioned as around 5:00 in the evening on 20.2.2010, whereas in the post repossession intimation to the police, the time of occurrence was given as 1:30 p.m. on 20.2.2010 (Annexure-3). The issue involved in the complaint petition was in the nature of civil dispute but the complainant initiated criminal proceedings with obvious reasons to devour the loan amount which was advanced to him for the purchase of Earth Mover, as such, in the given facts and circumstances, no offence is made out much less the offence alleged under Sections 379/384/34 of the Indian Penal Code against the Petitioners.
7. Before concluding his argument, Mr. Sinha submitted that Loan-cum-Hypothecation Agreement, Irrevocable Power of Attorney annexed with the supplementary affidavit filed on behalf of the Petitioners would clearly indicate that the agents of the Financer had acted as per the terms of the documents. The complainant-opposite party No. 2 was given legal notice on 22.2.2010 (Annexure-4 series) prior to repossession of the Earth Mover, which was the subject matter of this case and that the representatives of the TATA Motors Finance, who went to repossess the Earth Mover had informed the police.
8. Mr. Arvind Kr. Choudhary, the learned Counsel for the opposite party No. 2, submitted that Petitioners had taken away his Earth Mover in his absence, forcibly without intimation to him on the pretext of being taken for repair in the works and thereby, they have committed offence under Sections 379/384/34 of the Indian Penal Code.
9. Having regard to the facts and circumstances of the case, arguments advanced on behalf of the parties, I find that the Supreme Court of India in Trilok Singh and Ors. v. Satya Deo Tripathi reported in (1979) 1 SCC 987 observed.
Even assuming that the Appellants either by themselves or in the company of some others went and seized the truck on 30-7-1973 from the house of the Respondent they could and did claim to have done so in exercise of their bona fide right of seizing the truck on the Respondent�s failure to pay the third monthly installment in time. It was, therefore, a bona fide civil dispute which led to the seizure of the truck. On the face of the complainant petition itself the highly exaggerated version given by the Respondent that the Appellants went to his house with a mob armed with deadly weapons and committed the offence of dacoity in taking away the truck was so very unnatural and untrustworthy that it could not take the matter out of the realm of civil dispute. Nobody on the side of the Respondent was hurt. Even a scratch was not given to anybody.
10. I have also examined the documents, which have been filed on behalf of the Petitioners by way of supplementary affidavit and such documents give rise to contractual obligation to the contracting parties with the arbitration clause that any kind of dispute shall be solved by the Arbitrator and the award of the Arbitrator would be final and binding upon all the parties concerned (Clause-23 of Irrevocable Power of Attorney). Petitioners have also brought the Post Repossession Intimation on the record which was given to the Officer in Charge of Gadhara Police Station, Barauni (Bihar).
11. It was held by the Supreme Court of India in
The hire-purchase agreement in law is an executory contract of sale and confers no right in rem on 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. The agreement (Annexure P-1) specifically gave authority to the Appellants to repossess the vehicle and their agents have been given the right to enter any property or building wherein the motor vehicle was likely to be kept. Under the hire purchase agreement, the Appellants have continued to be the owners of the vehicle, and even if the entire allegations against them are taken as true, no offence was made out against them. The learned single Judge seriously flawed in his decision and failed to exercise jurisdiction vested in him by not quashing the proceedings initiated against the Appellants.
12. In the facts and circumstances, I find that criminal prosecution of the Petitioners for the alleged offence cannot be sustained under law and accordingly, FIR of Deoghar Town P.S. Case No. 96/2010, arising out of P.C.R. Case No. 133/2010 is quashed as against the Petitioners with the consequential effect.
