Calcutta High Court (Appellete Side)

Hdfc Bank Limited vs The State Of West Bengal & Anr on 12 May, 2023

               IN THE HIGH COURT AT CALCUTTA
              (CRIMINAL REVISIONAL JURISDICTION)

   PRESENT:
   THE HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY

                                    CRR 3447 of 2010

                             HDFC BANK LIMITED
                                     VS.
                       THE STATE OF WEST BENGAL & ANR.

   For the Petitioner                  : Mr. Debasish Roy, Sr. Adv.
                                         Mr. Kaushik Chatterjee, Adv.
                                         Mr. Tirthankar Dey, Adv.
   For the State                       : Mr. Abhra Mukherjee, Adv.
                                         Mr. Gautam Banerjee, Adv.
   Hearing concluded on                : 20th April, 2023

   Judgement on                        : 12th May, 2023

Siddhartha Roy Chowdhury, J.:

    1.

This application under Section 482 of the Code of Criminal

Procedure challenges the proceeding being B.G.R. Case No. 5914 of

2008 in connection with Behela P.S. Case No. 529 of 2008 dated 17th

December, 2008 pending before the learned Additional Chief Judicial

Magistrate, Alipore, South 24 Parganas under Section

323/379/384/386/504/34 of the Indian Penal Code.

2. Briefly stated, the opposite party no. 2, Subhash Chakrborty filed

a petition of complaint before the learned Additional Chief Judicial

Magistrate, Alipore, South 24 Parganas alleging, inter alia, that Gopal

Banerjee purchased the vehicle registered as WB-20H-6845 taking

loan from HDFC Bank Gillander House Branch, N.S. Bose Road,

Kolkata-700001 and he was supposed to liquidate the loan by paying

EMI of Rs. 9325/-. In the month of October a sum of Rs. 15,000/-

was demanded by Ram Prosad Ghosh authorized representative of

HDFC Bank from the complainant and also threatened him that if

such amount is not paid he would take the vehicle from the

complainant. On 21st April, 2008 at about 10.00/10.30 a.m. The

complainant came from Thakurpukur to Behala Simultala Bazar

when accused person stopped the vehicle and demanded money

which the complainant failed to meet. He was assaulted by the

accused persons and they snatched the vehicle. The complainant

informed Behala Police Station but no action was taken by the police

against the accused persons. Police recorded G.D. Entry No. 2252 of

2008. Thereafter, the complainant filed the petition of complaint.

Learned Additional Chief Judicial Magistrate forwarded the petition of

compliant under Section 156 (3) of the Code of Criminal Procedure to

the Jurisdictional Police Station and Behala Police Station Case No.

529 of 2008 was registered against the HDFC Bank and others.

3. Mr. Debasish Roy, learned Senior Counsel adverted that sometime

in the month of April, 2008 one Gopal Banerjee approached the bank

for financial assistance as he wanted to purchase a motor vehicle.

Bank agreed to finance a sum of Rs. 2,70,000/- and it was agreed

that hirer would clear off financial liability by paying a sum of Rs.

9325/- per month for 36 months commencing from 5th April, 2008

and accordingly an agreement was executed. The borrower, however,

failed to discharge his obligation, as a result, on 3rd October, 2008 the

bank recalled with the loan and informed the borrower accordingly

calling upon him to pay a sum of Rs. 2,73,956.60/- within 7 days.

But no action was taken on the part of the borrower in terms of said

notice and bank was constrained to take repossession of the said

vehicle. Subsequently, the vehicle was disposed of and the matter was

informed to the hirer. Subsequently, this case was registered through

the driver of the borrower.

4. My attention is drawn to the loan agreement and the notice dated

3rd October, 2008 addressed to Gopal Banerjee, and notice dated 21st

November, 2008 informing the Officer-in-charge of Jadavpur Police

Station about repossession of the vehicle. Factum of post

repossession was also brought to the notice of Jadavpur Police

Station by letter dated 11th November, 2008. Gopal Banerjee, the

borrower was also informed about the repossession of the vehicle. On

3rd December Gopal Banerjee was informed about the disposal of the

vehicle by the HDFC bank and this petition of complaint was filed

before the learned Additional Chief Judicial Magistrate, Alipore, South

24 Parganas on 12th December, 2008 subsequent to the disposal of

the vehicle. According to Mr. Roy, since the borrower failed to perform

his part of contract and did not pay the money back to the bank,

following the terms of agreement and due process bank took

possession of the vehicle. There is no ingredient of offence within the

meaning of Section 323/379/384/386/506/504/34 of the I.P.C.

5. 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 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."

6. 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."

7. 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. B.G.R. Case No.

5914 of 2008 in my view is attended with malafide.

8. 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. 5914 of 2008 pending before the

learned Additional Chief Judicial Magistrate, Alipore, South 24

Parganas to avert abuse of process of law, which I accordingly do. The

criminal revision is thus allowed.