The High Court of Calcutta while adjudicating on a criminal revision petition held that when there was a loan agreement where the borrower failed to repay, taking repossession of the vehicle would be as per the terms of the agreement and would not amount to robbery.
Brief Facts:
The current application has been filed under section 482 of the CrPC challenging the proceeding pending before the additional chief judicial magistrate under sections 392/323/506(II)/120B of the IPC.
The opposite party had filed a petition of complaint that in 2005, he had purchased a TATA Indica Car with the financial assistance of the HDFC Bank Auto loan for which he had issued post-dated cheques. Then he applied for a personal loan which was also availed on the agreed terms and conditions. Due to the extreme financial crisis some of the cheques were dishonored, The complainant informed the bank and the bank assured him to cooperate in such a situation. The complainant’s car was forcibly taken by use of muscle power after assaulting the driver. Later on 22nd August 2009, the complainant received a letter from the bank admitting the factum of taking possession of the car of the complainant.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that after taking the loan, the borrower failed to repay the loan in terms of the agreement. The bank being the lender then drew the attention of the borrower by a letter. Later after taking repossession of the vehicles as per the terms and conditions of the agreement and the borrower was informed about the same through writing and it was also informed that the vehicle would be sold to release the money due to the bank. Accordingly, it was contended that there is no ingredient of offense within the meaning of Sections 392/323/506(II)/120B of the Indian Penal Code and the complaint borrower initiated the criminal proceeding with mala fide intention. To support his argument the counsel also relied on certain cases of the Supreme Court.
Contentions of the Respondent:
The Learned Counsel for the Respondent while refuting the contentions of the petitioner submitted that the HDFC Bank did not have any respect for the law of the land and the vehicle was forcefully taken into possession in a deceitful manner.
The counsel for the state produced the case diary and from the case diary and it was found that HDFC Bank took possession of the vehicle and the police were informed about it and the investigating officer failed to find out any witness to the occurrence.
Observations of the Court:
The court noted that the lender or the financer took repossession of the vehicle as per the agreement executed between the parties and it cannot be said that the lender committed an offence within the meaning of the Penal Code with the requisite mens rea and dishonest intention. It was also noted that at best this can be a civil dispute with the color of criminality. The court then noted that it is the fit case to invoke the provision of sections 482 of CrPC to quash the proceedings pending in the below court.
The decision of the Court:
The criminal revision was allowed and the application was disposed of. The proceedings pending below were quashed.
Case Title: HDFC Bank Limited & Anr. V. The state of West Bengal
Coram: Hon’ble Justice Siddhartha Roy Chowdhury
Case no.: CRR 3445 of 2010
Advocate for the Petitioner: Mr. Debasish Roy, Adv. Mr. Kaushik Chatterjee, Adv.
Advocate for the Respondents: Mr. Jayanta Narayan Chatterjee, Adv., Mr. B.K. Panda, Adv., Ms. Puspita Saha, Adv.
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