Calcutta High Court (Appellete Side)

Joyanta Roy & Anr 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 4444 of 2008

                          JOYANTA ROY & ANR.
                                  VS.
                    THE STATE OF WEST BENGAL & ANR.

   For the Petitioner                : Mr. Sandipan Ganguly, Sr. Adv.
                                       Mr. Dipanjan Dutt, Adv.
                                       Mr. Amitava Mitra, Adv.
                                       Ms. Antara Choudhury, Adv.

   For the State                     : Mr. N.P. Agarwal, Adv.
                                       Mr. Pratick Bose, 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 of G.R. Case No. 808 of 2008

         pending   before   the   learned   Chief   Judicial   Magistrate,   Purba

         Midnapore arose out of Tamluk P.S. Case No. 206 dated 13th

         September, 2008 under Section 379/411 of the Indian Penal Code.

    2.      Briefly stated, the opposite party no. 2 filed a petition of complaint

         before the learned Chief Judicial Magistrate, Purba Midnapore on 13th

         September, 2008, stating, inter alia, that he had purchased a vehicle

         bearing registration no. WB-29/7255 with financial assistance from L

         & T Finance Limited. He paid fourteen installments but failed to pay
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     two installments. On 28th November, 2007, the said vehicle loaded

     with mustard worth Rs. 5,59,000/- was stationed near the office of

     District Magistrate. The driver and khalasi of the truck were having

     food and in their absence the 'goondas' of L & T Finance Limited took

     away the vehicle. It was further alleged that police despite having

     knowledge refused to take any action despite being informed by the

     complainant. The said petition of complaint was forwarded to Tamluk

     Police Station under Section 156 (3) of the Cr.P.C. and Tamluk P.S.

     Case No. 206 dated 13th September, 2008 was registered. Police took

     up investigation of the case.

3.      Mr. Sandipan Ganguly, learned Senior Counsel representing the

     petitioner of this case submits that admittedly the borrower

     purchased the vehicle with the financial assistance from the L & T

     Finance Limited and failed to pay installments in terms of the loan-

     cum-hypothecation agreement. Drawing my attention to the clause

     (12) which speaks of event of default, Mr. Ganguly submits that in the

     event of non-payment of installments by the borrower, the lender

     acquires the right to repossess, sell and otherwise dispose of

     hypothecated vehicle in question. Therefore, in terms of the

     agreement the company took action only after the borrower failed to

     honour the undertaking given by him on 5th November, 2007. The

     company took repossession of the vehicle and accordingly informed

     the local police station on that date itself about such fact. Therefore,

     there cannot be any reason to implicate the petitioners who were the

     employees of the L & T Finance Limited for committing offence under
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Section 379/411 of the I.P.C. According to Mr. Ganguly, under hire

purchase agreement the hirer is simply paying the money for the use

of the goods and for the option to purchase the same in accordance

with the terms of the agreement. If the hirer himself is not paying the

installment under the agreement and the lender takes repossession of

the vehicle, the hirer or borrower cannot have any grievance at all.

According to Mr. Ganguly, under the hire purchase agreement the

financer is the real owner of the vehicle and, therefore, there cannot

be any allegation against him for having the possession of the vehicle.

In support of his contention Mr. Ganguly 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
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           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
           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."

4. 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."

5. 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 of theft 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.

6. 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. 808 of 2008 pending before the learned

Chief Judicial Magistrate, Purba Midnapore to avert abuse of process

of law, which I accordingly do. The criminal revision is thus allowed.

7. Let a copy of this judgement along with lower Court record be sent