Prakash Chand vs Manik Bhagwat Tribhuwan And Anr.
2006 Latest Caselaw 242 Bom

ORDER

S.P. Kukday, J.

1. Leave to add.

2. In this revision petition, the petitioner seeks to quash and set aside the proceeding in private complaint bearing RTC No. 293/1996 instituted in the Court of Judicial Magistrate, First Class, Kopargaon, for the offence punishable under Section 420 and 464 r/w 34 of the Indian Penal Code.

3. Briefly stated, the relevant facts are that respondent No. 1 purchased truck bearing registration No. MH-17/A-6670 by borrowing loan of Rs. 36,000/- from the petitioner and entering into hire-purchase agreement with the petitioner proprietary firm M/s. Chopra Auto Finance, Hyderabad. Respondent No. 1 committed default in payment of instalments, therefore, the petitioner took the vehicle in his possession. However, respondent No. 1 approached the petitioner with a request to review the agreement. In pursuance of his request, another hire-purchase agreement was entered into between the parties on 6-5-1993. Respondent No. 1 agreed to repay the outstanding amount of Rs. 49,000/- in twenty monthly instalment of Rs. 2,450/- each. Respondent No. 1, however, committed default in payment of the instalment, as a result the vehicle was again taken in possession by the petitioner. On this occasion, respondent No. 1 instituted a criminal proceeding against petitioner and three others in the Court of Judicial Magistrate, First Class, Kopargaon bearing R. T. C. No. 293/1996 for the offence punishable under Section 420, 464 r/w 34 of the Indian Penal Code. After recording of the verification, the matter was referred to the police for investigation under Section 202 of the Code of Criminal Procedure. Investigation Officer submitted report dated 2-1-1997 making it clear that the dispute is of a civil nature. Along with the complaint, respondent No. 1 had filed an application for search warrant under Section 93 of the Code of Criminal Procedure in respect of the truck bearing registration No. MH-17/A-6670. After receipt of the report of the Investigating Officer, the learned Magistrate passed an order dated 23-10-1997 issuing search warrant under Section 93 of the Code of Criminal Procedure. After getting knowledge of this development, the petitioner has approached this Court for quashing of the complaint.

4. Learned Counsel for the petitioner contends that the ownership has not passed to respondent No. 1, therefore, on default committed by the respondent No. 1, the petitioner was within his right to acquire possession of the vehicle. Learned Counsel submits that no offence have been made out, therefore, the learned Magistrate should not have issued search warrant under Section 93 of the Code of Criminal Procedure. Learned Counsel submits that the proceedings in private complaint bearing RTC No. 293/ 1996 instituted in the Court of Judicial Magistrate, First Class, Kopargaon and order passed by learned Magistrate dated 23-10-1997 under Section 93 of the Code of Criminal Procedure, deserve to be quashed and set aside.

5. In spite of service respondent No. 1 has not appeared before the Court.

6. In the present case, the petitioner seeks quashing of the proceedings initiated by respondent No. 1 by filing a complaint before the Judicial Magistrate, First Class, Kopargaon in respect of offences punishable under Sections 420, 464 r/w 34 of the Indian Penal Code.

7. The petitioner has approached this Court for exercising jurisdiction under Section 482 of the Code of Criminal Procedure. It has to be borne in mind that the extraordinary jurisdiction has to be exercised only sparingly and in an appropriate case where there is an abuse of the process of the Court or patent illegality. In the present case, it can be seen that respondent No. 1 has filed complaint in respect of commission of offence punishable under Sections 420, 464 r/w 34 of the Indian Penal Code against the petitioner, who is proprietor of M/s. Chopra Auto Finance, Hyderabad (A. P.). The allegations in the complaint are that though amount of Rs. 45,400/- out of Rs. 56,000/ - is paid, the petitioner obtained signature of respondent No. 1 on blank stamp papers and forms and by misusing these documents and has taken away vehicle belonging to him. After recording of the verification, the matter was referred to local police for inquiry under Section 202 of the Code of Criminal Procedure. The inquiry report is submitted on 2-1-1997 making it clear that the transaction is in respect of a civil dispute. The allegations are in respect of chearing and making of false documents. There is nothing in the recitals of the complaint to show that other accused namely Vijayraj Nathmal Jain, Ashok Kumar Kishanlal Jain and Satish Kankaraj Jain are concerned with the commission of this offence. There is no allegation that these persons had accompanied the petitioner for taking possession of the vehicle. Be that as it may; learned Counsel for the petitioner has rightly placed reliance on the ruling of Supreme Court in the matter of Trilok Singh and Ors. v. Satya Deo Tripathi. In that case, there was a dispute between the parties relating to the truck purchased by complainant (respondent) under hire purchase agreement. The Financier had taken possession of the truck. The allegation was that offence punishable under Section 379 of the Indian Penal Code has been committed. The High Court dismissed the petition filed under Section 482 of the Code of Criminal Procedure. In this background, the Apex Court observed in para 5 of the Judgment that "the dispute raised by the respondent was purely of a civil nature, even assuming the facts stated by him to be substantially correct. Money must have been advanced to him and his partner by the financier on the basis of some terms settled between the parties. Even assuming that the agreement entered on 29th March, 1973 was duly filled up and the signature of the complainant was obtained on a blank form, it is to be noticed that the amount of the two monthly instalments admittedly paid by him was to the tune of Rs. 3,566/- exactly at the rate of Rs. 1,783/- per month." In this background, it is observed that no offence was made out and the appeal was allowed setting aside the order of the High Court as also of the Magistrate. The criminal proceeding in question was quashed.

8. Similar view is taken by the Apex Court in the ruling in the matter of Charanjit Singh Chadha and Ors. v. Sudhir Mehra. In that case also complaint was filed for offence punishable under Sections 406, 420, 120-B and Section 379 of the Indian Penal Code. The Apex Court observed in para 5 of the Judgment that Hire-purchase agreements are executory contracts under which the goods are let on hire and the hirer has an option to purchase in accordance with the terms of the agreement. It is further observed that under the hire purchase agreement the hirer is simply paying for the use of the goods and for the option to purchase them. The finance charge, representing the difference between the cash price and the hire purchase price, is not interest but represents a sum which the hirer has to pay for the privilege of being allowed to discharge the purchase price of goods by instalments.

9. In para 12 of the Judgment, it is observed that owner repossessing the vehicle delivered to the hirer under the hire-purchase agreement will not amount to theft as the vital element of "dishonest intention" is lacking. In this view of the matter, the appeal was allowed and the complaint and other proceedings initiated pursuant to the complaint, were quashed.

10. Applying the principles to the present case, it can be seen that there is no dispute regarding the existence of hire purchase agreement between the parties. The complainant merely alleged that the petitioner has obtained his signatures on a blank stamp paper and blank forms and has used these documents against him. The allegations are, however, not substantiated by producing evidence. In response to the directions of learned Magistrate, inquiry was conducted by a police officer. The report in respect of inquiry conducted under Section 202 of the Code of Criminal Procedure, submitted by the police officer, shows that the dispute is purely of a civil nature. The order is passed by the learned Magistrate on the application for issuance of a search warrant on 23rd of October, 1997 after receipt of the report of enquiry. Having regard to the facts of the present case it can be seen that the learned Magistrate was not justified in is suing search warrant one year after the filing of the application. It can be seen that in view of the admission regarding the existence of hire purchase agreement between the parties, in the absence of material on record to show that signatures were in fact obtained on blank stamp papers or blank forms and in view of the report submitted by the police officer, no offence is made out against the petitioner. Ingredients of offence punishable under Sections 420, 464 r./w. 34 of the Indian Penal Code are not satisfied. In fact, there is nothing to show that the original accused Nos. 1,2,3 and 4 have any concern with this transaction. In view of the report submitted by the police officer, no further orders were passed even in respect of issuance of process, therefore, passing of an order for the search warrant cannot be sustained. In the present case, the proceedings initiated in the criminal-Court by the complainant does not disclose commission of any offence in view of the hire purchase agreement between respondent No. 1 and the petitioner. Initiation of the criminal prosecution, therefore, amounts to an abuse of the process of the Court. The complaint, therefore, deserves to be quashed and set aside. It follows that other proceedings initiated pursuant to the complaint, which include order dated 23rd October, 1997 regarding issuance of the search warrant under Section 93 of the Code of Criminal Procedure, also deserve to be quashed and set aside. Criminal Revision Application, is therefore, allowed. Rule is made absolute in terms of prayer Clause (C) and (D).