Calcutta High Court (Appellete Side)

Hdfc Bank Limited 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 3245 of 2010

                           HDFC BANK LIMITED
                                  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                     : Ms. Faria Hossain, Adv.
                                       Ms. Baisali Basu, Adv.

   Hearing concluded on              : 7th February, 2023

   Judgement on                      : 17th February, 2023

Siddhartha Roy Chowdhury, J.:

    1.      This application under Section 482 of the Criminal Procedure Code

         challenges the proceeding being Jadavpur P.S. Case No. 663 dated 7th

         December, 2009 under Section 384/323/12B/34 of the Indian Penal

         Code corresponding B.G.R. Case No. 6105 of 2009 pending before the

         learned Additional Chief Judicial Magistrate, Alipore.

    2.      Briefly stated, Subrata Mondal filed a petition of complaint before

         the learned Additional Chief Judicial Magistrate stating, inter alia,

         that on 28th November, 2009 at about 6.00 a.m. the driver engaged by

         Mr. Subrata Mondal, Sri Arjun Roy took the vehicle (lorry) registered

         as WB-41C-6717 to 8B Bus Stand when the accused persons came to
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     the spot and disclosed their identity as agents of HDFC Bank who

     came to seize the vehicle. The driver raised objection and he was

     assaulted. They forcefully snatched the key of the vehicle with all

     relevant papers and documents including cash. The driver brought

     the incident to the notice of the informant over phone. He contacted

     the bank and banker told that no person from the bank snatched or

     hijacked the vehicle from the driver of the complainant. The petition

     of complaint was forwarded to Jadavpur Police Station under Section

     156 (3) of Cr.P.C. and Jadavpur P.S. Case No. 663 dated 7th

     December, 2010 was registered against the accused persons. The

     accused persons happen to be the petitioner before this Court.

3.      Drawing my attention to the loan agreement Mr. Sandipan

     Ganguly, learned Senior Counsel submits that the informant

     purchased the vehicle taking loan from HDFC Bank but failed to pay

     the installments in terms of the agreement. This fact was brought to

     the notice of the opposite party no. 2 the borrower by notice dated 1st

     October, 2010 and in terms of said agreement bank took repossession

     of the vehicle which was duly informed to the complainant opposite

     party no. 2 by letter dated 16th November, 2009. Therefore, the

     banker did not have any mens rea to commit offence within the

     meaning of Section 384/323/12B/34 of the Indian Penal Code as

     alleged by the complainant.

4.      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
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agreement. If the hirer himself causes a breach of contract by 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 judgement 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 under the 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 B.G.R. Case No. 6105 of 2009 pending before the

learned Additional Chief Judicial Magistrate, Alipore to avert abuse of

process of law, which I accordingly do.

8. The criminal revision is thus allowed.