D.C.M. Financer'S Service And ... vs State Of U.P. And Another
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							                                                AFR
 
	   							           
 
									Reserved Judgment.
 

 
Court No. 25.
 

 
Case :- APPLICATION U/S 482 No. - 3413 of 2009
 

 
Applicant :- D.C.M. Financer Service And Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- A.D. Saunders, Ajit Ray, Shashi Prakash Misra
 
Counsel for Opposite Party :- Govt. Advocate, Mohd. Yusuf, Pradeep Kr. Rai Kashyap.
 

 
Hon'ble Shashi Kant,J.

1. Heard Sri Shashi Prakash Mishra, learned counsel for the applicants, Sri Kshtij Pal Singh, Brief Holder for the State of U.P. and Sri Mohd. Yusuf, learned counsel for the respondent no. 2.

2. This application under Section 482 Criminal Procedure Code,1973 (hereinafter referred to as "Cr.P.C.") has been filed for quashing the impugned order dated 11.03.2004, which has been passed in pursuance of the order dated 17.10.2001 and Complaint Case No. 516/9 of 2001, (Harsh Vardhan Tyagi vs. D.C.M. Finance Services and others) pending in the Court of C.J.M., Muzaffarnagar, under Sections 391, 403, 406, 420, 504 and 506 Indian Penal Code, 1860 (hereinafter referred to as "IPC"), Police Station Kotwali, District Muzaffarnagar.

3. Brief facts relating to this case are that:

3.1. M/s. D.C.M. Financer Services (hereinafter referred to as "applicant company") is a company incorporated under the Companies Act and engaged in the business of financing by way of Hire Purchase towards plants, machinery, equipments and vehicles etc.

3.2. On 14.04.1997, the opposite party no.2, Sri Harsh Wardhan Tyagi took a loan of Rs.1,98,000/- for purchase of a car from applicant no. 1, under the Higher Purchase Agreement (Annexure-1).

3.3. The opposite party no. 2 paid only partial amount of Rs. 93,240/- and failed to pay all installments of loan. Since opposite party no. 2 failed to pay all legally payable amount despite repeated reminders and requests as well as all the cheques issued by him for payment of installments were dishonored for lack of funds in his account.

3.4. As the cheques issued by the opposite party no. 2 had bounced, the applicants company had initiated complaints against him for bouncing of 16 cheques under Section 138 of Negotiable Instruments Act, which are pending adjudication before the Court of Metropolitan Magistrate, Dwarika, New Delhi.

3.5. Since after payment of Rs.1,62,540/-, the opposite party no. 2 defaulted in payment of the installments against the loan amount. In these circumstances, on 09.02.2002 the applicants took over the possession of vehicle of opposite party no. 2, with the help of Muzaffarnagar Police.

3.6. On 22.02.2001, the opposite party no. 2 filed a complaint (Annexure-2) in which after recording the statement of the complainant/opposite party no. 2 under Section 200 Cr.P.C. and his witnesses under Section 202 Cr.P.C., the Court below found prima facie case against the applicants and summoned them to face trial under Section 392 IPC vide summoning order dated 17.10.2001 (Annexure-3). The Court below has also passed impugned order dated 11.03.2004 issuing warrant against the applicants in pursuance of the summoning order.

4. Feeling aggrieved therefrom, the applicants have filed this application under Section 482 Cr.P.C. seeking reliefs as stated above.

5. Learned counsel for the applicants contended that :

5.1. The applicants challenged the order dated 11.3.2004 and the order dated 17.10.2001 for quashing of the said orders and the Complaint Case No. 516/9 of 2001, in Criminal Revision No. 2096 of 2004. The Hon'ble Court was pleased to grant an ad interim stay during the pendency of the revision. The Court was pleased to dismiss the revision as not maintainable vide order dated 01.10.2007 observing therein that the remedy available to the revisionists was to file an application under Section 482 Cr.P.C.

5.2. Consequently, the instant application under Section 482 Cr.P.C. is being filed challenging the aforesaid orders (Annexure-5).

5.3. A certified copy of the order dated 01.10.2007 passed by this Court was dispatched by the counsel to the applicants by post. It appears that the said letter was lost in transit and the applicants remained unaware about the order dated 01.10.2007.

5.4. The pairokar of the applicants when contacted his counsel on 01.02.2009 only then he became aware about the order dated 01.10.2007. Thereafter he sought necessary instructions from the applicants and thereafter the present application is presented immediately before this Court.

5.5. The delay in filling the instant application is on account of facts and circumstances as stated above which were beyond the control of the applicants. As such, this application does not suffer from any deliberate latches.

5.6. Admittedly, opposite party no. 2 had taken a loan of Rs.1,98,000/- against which he paid only Rs. 1,62,540/-.

5.7. It was admitted case of the complainant that he had issued 32 post dated cheques against the payment of loan amount .Since January 1998 and onwards above post dated cheques were dishonored by the bank of the opposite party no. 2 due to non availability of sufficient funds in his account.

5.8. The applicants company filed a complaint against the opposite party no. 2 and he was summoned by the Court.

5.9. The opposite party no. 2 approached the Hon'ble High Court at Delhi for quashing of the complaint filed by the applicants company, which was dismissed.

5.10. In view of the fact that the opposite party no. 2 became a defaulter in payment of 23 installments, the applicants company sent a report to the Station House Officer, Kotwali, Muzzafarnagar and 10.02.2000 again sent another report to the Superintendent of Police, Muzzafarnagar for the same purpose. It was the Police, who on the basis of the agreement and other documents, seized the vehicle and handed over the same to the applicants company in accordance with law. The learned Magistrate without applying his mind to the admitted facts of the case and as stated in complaint itself, wrongly summoned and issued a non bailable warrant against the applicant on 11.03.2004 (Annexure-4).

5.11. The opposite party no. 2, as a counter blast, has filed above wrong and false complaint with the ulterior motive of pressurizing the applicants company and also to gain exemption for the payment of balance amount together with release of the vehicle.

5.12. The applicant no. 2 was not holding the post of Managing Director on 09.02.2000 as has been alleged by the opposite party no. 2. He was appointed as Managing Director of the company for a period of three years from March/ April, 2000.

5.13. There is a long delay of one year in filing of the complaint without any cogent explanation for that.

5.14. No offence is made out in view of the allegations made in the complaint which deserves to be quashed.

5.15. The complaint is a vindictive effort by the opposite party no. 2 and has sought to abuse the process of law.

5.16. In view of the facts and circumstances narrated above, it is expedient in the interest of justice that this Court be pleased to allow the instant application and quash the entire proceeding of Complaint Case No. 516/9 of 2001, (Harsh Vardhan Tyagi vs D.C.M. Finance Services and others) pending in the Court of C.J.M., Muzzafarnagar under Sections 391, 403, 406, 420, 504, 506 IPC and also the orders dated 11.3.2004 and 17.10.2001, filed as Annexures-3 and 4 to this affidavit, otherwise the applicants shall suffer irreparably.

6. Per contra, learned Brief Holder for the State of U.P. and learned counsel for the opposite party no. 2 contended that :

6.1. The opposite party no. 2 has taken loan of Rs.1,98,000/- from the applicants company in the year 1997 for purchase of a Car and according to the agreement he had also deposited the fixed deposit of Rs. 89,300/- as a security against the loan along with 32 post dated cheques. He was also regularly paying installments of loan and paid Rs.93,240/-. They also recovered Rs.69,300/- from fixed deposit provided by the opposite party no. 2 to the applicants company as security. As such, opposite party no. 2 paid Rs.1,62,540/- to the applicants company.

6.2. In January, 2000, the applicants and others pressurized opposite party no. 2 to pay enhanced interest instead of the interest settled between the parties. They also pressurized him to sign new agreement, but opposite party no. 2 was not agreeable to that.

6.3. On 09.02.2000, the accused applicants without following due procedure for recovery of the loan illegally, arbitrarily and forcibly took away Maruti Car No. U.P. 7/G 4072 from the house of opposite party no. 2.

6.4. The applicants had not given any notice or opportunity to opposite party no. 2 to explain his stand before illegally taking away the above vehicle, despite several efforts of opposite party no. 2 to settle the dispute.

6.5. The above vehicle took away from the possession of the opposite party no. 2 was neither mortgaged with the applicants company nor registered in its name, rather all documents of ownership of the vehicle including registration certificate are in the name of opposite party no. 2 despite the above, the applicants are trying to sell the above vehicle.

6.6. In the above circumstances, the opposite party no. 2 has filed complaint case against the applicants etc. The Court below has recorded his statement under Section 200 and his witnesses under Section 202 Cr.P.C. and after perusal of evidence and material available on record found prima facie case against the applicants and summoned them to face trial under Section 392 IPC vide its order dated 17.10.2001.

6.7. The applicant no. 2 has challenged the above summoning order by means of a Criminal Revision No. 65 of 2003, which was dismissed by the Court concerned after hearing vide order dated 17.04.2003. The applicants has concealed this important fact and has not disclosed this fact in their application filed under Section 482 Cr.P.C.

6.8. The present application has been filed with intention to linger the matter.

6.9. The impugned order dated 17.10.2001 is based on evidence available on record and is in accordance with law. Moreover, the applicants have not made any prayer for quashing of the order dated 17.10.2001 in this application under Section 482 Cr.P.C., as such the aforesaid application has no merits and liable to be dismissed with the costs.

7. I have considered the above referred rival submissions raised by learned counsel for the parties and perused the record.

8. During the course of the arguments, the opposite party no. 2 raised a serious allegation against the applicants to the effect that a criminal revision filed by the applicant no. 2, challenging the summoning order dated 17.10.2001 has been dismissed after hearing, but this important fact has not been disclosed by the applicants in this application. Since the above allegation is of a very serious nature and goes to the roots of the matter. In this view of the matter, first of all, I would like to deal this aspect of the matter.

9. In the above regard, the opposite party no. 2 has stated in para 2 and 4 of his supplementary counter affidavit which reads thus :

"2. Being aggrieved the summoning order dated 17.01.2001, the applicants filed a Criminal Revision No. 65 of 2003 in the Court of Session Judge, Muzaffar Nagar, which was dismissed by the learned A.D.J., Court No. 1 on 17.04.2003. The true copy of the order and judgment dated 17.04.2003 is being filed herewith and marked as (Annexure SCA-1) to this affidavit.

..........

4. That the applicants have concealed the order dated 07.04.2003."

10. The above allegation of opposite party no. 2 is also corroborated by Annexure SCA-1. The relevant part of which, reproduced herein below:

"7. ....Therefore, the rulings referred by learned counsel for revisionist in this case does not come to rescue the revisionist for his act done by him at the time of taking the possession of alleged Maruti Car. Whatever may be the admission of respondent in respect to pledging the alleged Maruti Car in favour of the revisionist as contended by learned counsel for revisionist, the controversy in this regard can not be discussed or decided in this revision. Here in this revision the jurisdiction of this Court is limited merely to see whether learned Magistrate had prima faciely found any ingredient of any offence for the act committed by the revisionist. Since it is found prima faciely that the alleged car taking into possession by the revisionist was not mortgaged by the respondents with the revisionist, the learned Magistrate was very much in confirrmity of the law thereby summoning the accused/revisionist for an offence under Section 392 IPC.

8. Whatever may be the defended of the revisionist against the alleged offence prima faciely made out against the revisionist, the revisionist is at liberty to take those defences before the learned Magistrate for seeking appropriate order. In this revision, I do not find expedient to consider any of the defence of the revisionist. Therefore, the revision fails and liable to be dismissed."

11. The above allegation of opposite party no. 2 is not controverted by the applicants by means of their rejoinder/supplementary rejoinder affidavit. As such, the allegations of para 2 and 4 of the Supplementary Counter Affidavit are uncontroverted and unchallenged.

12. In view of the above, it is evident that applicants have concealed the above important fact of dismissal of Criminal Revision No. 65 of 2003 after hearing vide judgment and order dated 17.03.2004, which is highly objectionable and above act of the applicants makes them dis-entitle for grant of any relief.

13. Apart from above, the three Judges Bench of Hon'ble Apex Court in Kunhayammed and others vs. State of Kerala and Another, 2000 6 SCC 359, has held that :

" To sum up our conclusions are :

(I) Where an appeal or revision is provided against an order passed by a Court, Tribunal or any other authority before superior forum and such superior forum modified, reverses or affirms the decided put in issue before it, the decision by the Sup-ordinate forum merges in the decision by the superior forum and it is the later with subsists, remains operative and is capable enforcement in the eye of law."

14. In view of the above proposition of law declared by Hon'ble Apex Court after passing of judgment and order on merits by Revisional Court in Criminal Revision No. 65 of 2003, the impugned summoning order dated 17.10.2001 became non existent and only the judgment and order dated 17.04.2003 passed in above Criminal Revision No. 65/2003 remains in the existence, which has not been challenged by the applicants. Even main order dated 17.10.2001 has also not been challenged by the applicants and no relief has been claimed by the applicants regarding that, only order dated 11.03.2004, which is a consequential order of order dated 17.10.2001, has been challenged. Though in para 21 of the affidavit filed in support the application, both the orders dated 11.03.2004 and 17.10.2001 have been mentioned for quashing but in absence of prayer regarding quashing of order dated 17.10.2001 in the application under Section 482 Cr.P.C., mere mention of above orders dated 17.10.2001 and 11.03.2004 in para 21 of the affidavit is of no avail and provides no help to the applicants. In this score also, the relief as claimed by the applicants in this application could not be granted to them.

15. For the discussions made above, the relief for quashing of impugned order dated 11.03.2004 and all proceedings of the aforesaid Complaint Case No. 516/9 of 2001 are declined.

16. However, in the facts and circumstances of the case, it is provided that :

(I) In case applicants surrender before the Court below within thirty days from today and apply for bail, their applications for bail shall be considered and decided by the Court below expeditiously. It is made clear that this order shall not be treated as an implied direction of this Court to grant bail to the applicants and the Court concerned shall be at liberty to pass appropriate order in accordance with law.

(II) The applicants will also be entitled to move discharge application at an appropriate stage. If any such application is moved, same shall be considered and decided by the Court below expeditiously, in accordance with law.

(III) Since the applicants are not the local residents of Muzaffar Nagar, in view of this, the Court below will not insist his personal attendance on each and every date unless and until his personal presence is necessary for further proceedings of the case.

(IV) As the matter is old one relating to the year 2009, the Court below is expected to decide the case at the earliest without granting any unnecessary adjournment to any party. If adjournment is inevitable, it would be granted for short period, subject to payment of heavy cost upon the party who seek adjournment.

17. With the above directions/observations, the application is finally disposed off.

Order Date : 23.08.2018

Monika