Calcutta High Court (Appellete Side)
Sumit Chakraborty vs The State Of West Bengal & Anr on 17 February, 2023
IN THE HIGH COURT AT CALCUTTA
(CRIMINAL REVISIONAL JURISDICTION)
PRESENT:
THE HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY
CRR 3792 of 2009
CRAN 2 of 2010
SUMIT CHAKRABORTY
VS.
THE STATE OF WEST BENGAL & ANR.
For the Petitioner : Mr. Debasish Roy, Sr. Adv.
Mr. Kaushik Chatterjee, Adv.
For the State : Mr. Madhusudan Sur, Adv.
Mr. Dipankar Paramanik, Adv.
Hearing concluded on : 7th February, 2023
Judgement on : 17th February, 2023
Siddhartha Roy Chowdhury, J.:
1. This application under Section 482 of the Code of Criminal
Procedure challenges the proceeding being G.R. Case No. 1029 of
2009 in connection with Cokeoven P.S. Case No. 91 of 2009 dated 9th
September, 2009 pending before the learned Additional Chief Judicial
Magistrate, Durgapur, Burdwan under Section 420/406/323/506/34
of the Indian Penal Code.
2. Briefly stated, the petitioner no. 2, Smt. Ranjana Biswas filed a
petition of complaint before the learned Chief Judicial Magistrate,
Durgapur alledging, inter alia, that she was approached by HDFC
bank to take a loan when she expressed her mind to purchase vehicle
and accordingly hire purchase agreement was executed. The
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complainant deposited a sum of Rs.6,974/- as advised by the
borrower. On 16th March, 2009 the vehicle Tata Indica E3 was
delivered to the complainant, which was registered on that very date
bearing no. WB39A 2177. The complainant paid installments
regularly till 29th May, 2009. On 28th August, 2009 when the said
vehicle was stationed near Bankura More the accused persons with
2/3 unknown persons came and assaulted the driver, abused him,
snatched the keys along with all connected papers, took his signature
on some blank papers and left the place with the vehicle no. WB39A
2177 after intimidating the driver. The driver came and informed the
complainant about the incident, who approached the police
authorities but in vain. Learned A.C.J.M., Durgapur forwarded the
said petition of complaint to the concerned police station and
Cokeoven P.S. Case No. 91 of 2009 dated 9th September, 2009 was
registered under Section 420/406/323/506/34 of the Indian Penal
Code.
3. Mr. Debasish Roy, learned Senior Counsel has drawn my attention
to the notice dated 3rd July, 2009 issued by the lender bank to the
borrower Smt. Ranjana Biswas and on 29th August, 2009 the
borrower was informed by the bank about repossession of vehicle.
The police authority was also informed in writing. According to Mr.
Roy, had there been any incident of assault or criminal intimidation
as alleged by the complainant opposite party no. 2, the matter would
have been brought to the notice of the police and police would have
taken appropriate action. No such incident of assault ever took place.
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The opposite party no. 2 has made a desperate attempt to paint the
entire episode with the colour of criminality. In terms of agreement,
the vehicle was given to the opposite party no. 2. She however, failed
to discharge her obligation and her failure to pay installments in
terms of agreement compelled financial institution to take
repossession of the vehicle. There is no ingredient of offence under
Section 420/406/323/506/34 of the Indian Penal Code as alleged.
4. In support of his contention Mr. Roy relies upon the judgements of
Hon'ble Apex Court in the Case of Charanjit Singh Chadha & Ors.
vs. Sudhir Mehra reported in (2001) 7 SCC 355 and Surya Pal
Singh vs. Siddha Vinayak Motors & Ors. reported in (2012) 12
SCC 355. I have perused the judgements of Hon'ble Apex Court. In
Charanjit Singh Chadha (supra) Hon'ble Apex Court held:-
"5. 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.
These types of agreements were originally entered into
between the dealer and the customer and the dealer used to
extend credit to the customer. But as hire-purchase scheme
gained popularity and in size, the dealers who were not
endowed with liberal amount of working capital found it
difficult to extend the scheme to many customers. Then the
financiers came into picture. The finance company would buy
the goods from the dealer and let them to the customer under
hire purchase agreement. The dealer would deliver the goods
to the customer who would then drop out of the transaction
leaving the finance company to collect instalments directly
from the customer. Under hire purchase agreement, the hirer
is simply paying for the use of the goods and for the option to
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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.
11. The whole case put forward by the respondent-
complainant is to be appreciated in view of the stringent terms
incorporated in the agreement. If the hirer himself has
committed default by not paying the instalments and under
the agreement the appellants have taken re-possession of the
vehicle, the respondent cannot have any grievance. The
respondent cannot be permitted to say that the owner of the
vehicle has committed theft of the vehicle or criminal breach of
trust or cheating or criminal conspiracy as alleged in the
complaint. When the agreement specifically says that the
owner has got a right to re-possess the vehicle, there cannot
be any basis for alleging that the appellants have committed
criminal breach of trust or cheating."
5. In Surya Pal Singh (supra) Hon'ble Apex Court held:-
"2. Under the hire-purchase agreement, it is the financier who
is the owner of the vehicle and the person who takes the loan
retains the vehicle only as a bailee/trustee, therefore, taking
possession of the vehicle on the ground of non-payment of
instalment has always been upheld to be a legal right of the
financier. This Court vide its judgment in Sardar Trilok Singh
v. Satya Deo Tripathi 1979 4 SCC 396 has categorically held
that under the hire- purchase agreement, the financier is the
real owner of the vehicle, therefore, there cannot be any
allegation against him for having the possession of the
vehicle. This view was again reiterated in K.A Mathai v. Kora
Bibbikutty 1996 7 SCC 212. Jagdish Chandra Nijhawan v.
S.K. Saraf 1999 1 SCC 119 and Charanjit Singh Chadha v.
Sudhir Mehra 2001 7 SCC 417 following the earlier judgment
of this Court in Sundaram Finance Ltd. v. State of Kerala AIR
1966 SC 1178: Lalmuni Devi v. State of Bihar 2001 2 SCC 17
and Balwinder Singh v. CCE 2005 4 SCC 146."
6. From the attending facts of the case when it is admitted that the
lender or financer took possession of the vehicle, pursuant to the
agreement executed by and between the parties, it cannot be said
that the lender committed offence within the meaning of Penal Code
with the requisite mens rea and dishonest intention. At best it could
be a civil dispute which has been imbibed with the colour of
criminality.
7. In my humble opinion, this is the fit case to invoke the provision of
Section 482 of the Code of Criminal Procedure to quash the
proceeding of G.R. Case No. 1029 of 2009 pending before the learned
Additional Chief Judicial Magistrate, Durgapur to avert abuse of
process of law, which I accordingly do. The criminal revision is thus
allowed.
8. Application, if any, stands disposed of.
9. Let a copy of this judgement along with lower Court record be sent
to the learned Trial Court for information and necessary action.
10. Urgent certified copy of this judgement, if applied for, should be
made available to the parties upon compliance with the requisite
formalities.
(SIDDHARTHA ROY CHOWDHURY, J.)
