Shailesh Hiralal Khobre vs The State Of Maharashtra
2017 Latest Caselaw 4888 Bom

                                                                   Cri.W.P. No. 36/09
                                             1


                     IN THE HIGH COURT AT BOMBAY
                 APPELLATE SIDE, BENCH AT AURANGABAD

                    CRIMINAL WRIT PETITION NO. 36 OF 2009.

1.        Shailesh S/o Hiralal Khobre,
          Age: 32 Years, Occu: Service,
          R/o : Jyoti Nagar, Aurangabad.

2.        IndusInd Bank Ltd,
          formerly known as
          Ashok Leyaland Finance Ltd.,
          through its Legal Executive
          Shri. Mahendra S/o Gokuldas Gadiya,
          Age: 32 Years, Occu: Service,
          having its Regional Office located
          at Kandi Towers, Jalna Road,
          Aurangabad.                                       ....Petitioners.

                  Versus

1.        The State of Maharashtra
          Through Superintendent of Police,
          Aurangabad.

2.        The Police Inspector,
          Kranti Chowk Police Station,
          Aurangabad.

3.        Sandip S/o Shridhar Shinde,
          Age: 28 Years, Occu: Business,
          R/o : Near Zilla Parishad Quarters,
          Naralibaug, Aurangabad.                           ....Respondents.

Mr. A. A. Mukhedkar, Advocate for petitioners.
Mr. S.J. Salgare, APP for respondent Nos.1 and 2.


                                   CORAM     :   T.V. NALAWADE AND
                                                 SUNIL K. KOTWAL, JJ.

                                   DATED :       JULY 21, 2017.

JUDGMENT : [PER T.V. NALAWADE, J.]

.                 The petition is filed for quashing of F.I.R. bearing No.





                                                              Cri.W.P. No. 36/09

161/2006 registered in Kranti Chowk Police Station, Aurangabad for

the offence punishable under section 392 r/w. 34 of Indian Penal

Code ('IPC' for short) and also the chargesheet No. 262/2006 filed in

the Court of J.M.F.C. Aurangabad for this offence which is given case

No. 1771/2016. Both the sides are heard.

2) Petitioner No. 1 is an employee of petitioner No. 2 Bank.

The first informant Sandeep Shinde had taken loan of Rs. 2.25 lakh

from petitioner No. 2 Bank for purchasing a car. He had become

defaulter as some cheques given for making payment of installments

of loan had bounced. The loan was taken in March 2005 and the

incident took place on 7.5.2006.

3) It is the contention of the first informant that on that day

at about 4.00 p.m. when he and his mother were proceeding in the

aforesaid car, for making purchase for one marriage and when they

were carrying with them cash amount of Rs.50,000/- and when his

mother was having neckless of 20 grams gold, two persons came to

his car. One person was Chandan Pardeshi and he was known to the

first informant. Allegation was made that Chandan snatched the key

of the car from him and compelled him to get down from the car. He

has made allegations that second person virtually dragged his

mother from the car and then these two persons went away with the

Cri.W.P. No. 36/09

car. Chandan said that he was working for the bank and the

informant should come to bank. The informant went to bank. In the

bank the informant approached petitioner No. 1 and he asked about

the car. He also told the petitioner No. 1 that there was cash amount

of Rs.50,000/- and there was gold ornament of 20 grams which

were kept on front seat of the car. Petitioner No. 1 asked him to pay

first entire amount due. Allegations are made by the first informant

that he waited for one day and as they did not return the cash and

the ornament, he gave report to police. After making investigation,

chargesheet came to be filed on 26.5.2006 and the present

proceeding came to be filed on 12.1.2009. With the chargesheet,

there are statements of witnesses to whom incident was disclosed by

the first informant. There is statement of the mother of the first

informant to the aforesaid effect.

4) The learned counsel for the petitioner No.1 submitted

that name of petitioner No. 1 was not mentioned in the F.I.R. and

due to this circumstance, the proceeding cannot be continued for the

offence punishable under section 392 of IPC against the petitioner

No. 1. This contention cannot be accepted at this stage. The police

papers which include report show that it is petitioner No. 1 who had

informed in writing that he and Chandan had taken the vehicle in

custody for recovery of the loan.

Cri.W.P. No. 36/09

5) The learned counsel for the petitioners drew the

attention of this Court to the terms and conditions of the contract

under which loan was given. He submitted that petitioner No. 2 bank

was given right to take the vehicle in custody for recovery of loan

amount. On this point, two cases of the Apex Cort reported as

(2007) 2 Supreme Court Cases 711 [ICICI Bank Ltd. Vs.

Prakash Kaur and Ors.] and 2009 CRI.L.J. 327 [ICICI Bank

Vs. Shanti Devi Sharma and Ors.] can be cited. These cases show

that the Apex Court has laid down that the institutions like petitioner

No. 2 cannot be allowed to use muscle power for recovery of the

loan. Some procedure is laid down to see that harassment and

humiliation of borrower is avoided and such untoward incidents are

avoided. In the present matter, it is not the contention of the

petitioners that before taking the aforesaid action of seizure, the

procedure was followed. It can be said that only after registration of

the crime, it was informed to police that bank has taken the vehicle

in possession. Thus, the legal means were not used for enforcing the

right. There is serious allegation that in the car there was cash

amount of Rs.50,000/- and there was gold neckless weighing 20

grams. It appears that anticipatory bail was given to both these

accused and the aforesaid property which was allegedly present in

the car is not recovered. The said allegation, however, cannot be

Cri.W.P. No. 36/09

ignored. There is allegation of use of force for taking of the custody

of the car and in the car, aforesaid valuables as per the contention of

the first informant were present. After completion of investigation,

the investigating agency was satisfied that the case is made out and

so, the chargesheet is filed. Due to the aforesaid circumstances, this

Court holds that the case cannot be quashed now. In the result, the

petition is dismissed. Rule is discharged.

       [SUNIL K. KOTWAL, J.]            [T.V. NALAWADE, J.]



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