Calcutta High Court (Appellete Side)
Vishal Singh & Anr vs The State Of West Bengal & Anr on 26 September, 2023
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
C.R.R. 1722 of 2011
With
CRAN 1 of 2018(Old CRAN 3011 of 2018)
Vishal Singh & Anr.
-Vs-
The State of West Bengal & Anr.
For the Petitioners : Mr. Debasish Roy
: Mr. Kaushik Chatterjee
: Mr. Tirthankar Dey
For the State : Mr. Narayan Prasad Agarwala
: Mr. Pratick Bose
Heard on : 06.07.2023
Judgment on : 26.09.2023
Ananya Bandyopadhyay, J.:-
1.
The instant criminal revisional application is filed by the petitioners praying
for quashing of investigational proceedings in connection with Behala Police
Station Case No. 276 of 2010 dated 17.06.2010 under Sections
362/323/344/368/395/397/34 of the Indian Penal Code corresponding to
BGR No. 3265 of 2010 pending before the Learned Additional Chief Judicial
Magistrate, Alipore.
2. That HDFC Bank Ltd. is a banking a company incorporated under the
Companies Act, 1956 (hereinafter referred to as the said bank) having its
eastern regional office at Gillander House, 1st Floor, Block A, 8, N.S. Road,
Kolkata-700 001. The said bank is engaged in the business of banking.
3. The petitioners are officials of the said bank and are designated as the Legal
Manager and the Collection Managers respectively of the said bank.
4. The Behala Police Station Station Case No.276 of 2010 dated 17.06.2010
was registered for investigation pursuant to an order passed by the Learned
Additional Chief Judicial Magistrate, Alipore in an application under section
156 subsection 3 of the Code of Criminal Procedure directing the Officer in
Charge, Behala Police Station to treat the application under section 156
subsection 3 of the Code of Criminal Procedure as First Information Report
and investigate into alleged commission of offences punishable under
Sections 362/323/344/368/395/397/34 of the Indian Penal Code being
committed by the petitioners being officials of the said bank.
The allegations levelled in the said complaint are as follows:
The complainant, who is a resident of P-164, Unique Park, Behala, Kolkata-
700 034, received an information about the serious illness of his aunty
Nilima Kanjilal and in order to visit her at Sealdah departed on 17.05.2010
at about 5.30 a.m. in the morning from his residence, in his Cherry coloured
Tata Sumo, having (registration No.WB-02M-9651, Engine
No.483DL47GY27-15110 and Chasis No. 418201GYZ913303) which he had
purchased from one Shampa Roy. along with his driver Jiban Kumar Routh,
son of Late Jogdev Routh, originally of Village Hurrahi, P.S. Harlakhi. Dist.
Madhubani, Bihar. At about 5.45 a.m. when the complainant was passing
Pathakpara Bus Stoppage Behala suddenly 10(ten) well built person in 5(five)
Motor Bike surrounded and stopped the Tata Sumo and declaring
themselves as Police Personnel, demanded the papers of the vehicle.
Suddenly one of them hit on the complainant's left ear, which started to
bleed and he became senseless. They also slapped, punched and kicked the
driver Jiban Kumar Routh and dragged him out.
When the complainant regained senses he found his driver and himself
sitting in the middle sit of Tata Sumo and 2 persons were sitting beside them
holding Revolver and knife. One person was driving, another in-front seat
and one in the back seat. They threatened complainant not to shout or they
would kill him. The complainant identified two of the persons as Vishal
Singh and Ashutosh Kumar, both employee of H.D.F.C. Bank. Ltd. of
Gillander House, A-1, First Floor, 8, N.S. Road, Kolkata-700001. Others were
unknown persons. 5 others were following in Bikes. That the accused
persons brought complainant and his driver to an old single storied house
which was near about 30 minutes interior from Dum Dum Airport in an
unknown place. There they locked the complainant and his driver inside a
room of the house for 10(ten) days and also used to torture them physically.
The complainant begged before those accused persons to release them but
those unknown persons told, when time will come, they would be released.
The complainant never saw that the said Vishal Singh or Ashutosh Kumar
again after the first day of the incident.
Thereafter the complainant came to learn from his driver Jiban Kumar
Routh that the accused persons have taken all the papers of the vehicle and
the music system of the vehicle and also forced him to sign in some papers.
They have also snatched away Rs. 50,000/- cash from the complainant
which was arranged for treatment of his aunty.
On 27.05.2010 at about 5 p.m. in the evening those accused persons
released the complainant and his driver at an unknown place after escorting
them in the vehicle and their eyes were tied with clothes. After release the
complainant and his driver somehow reached Dum Dum Air Port Bus Stop
by 10(ten) minutes walk and from there to Behala Police Station at about
8.15 p.m. and reported the incident with Behaqla Police Station by filing
written complaint, being G.D. Entry No. 2004, dated 27.05.2010. However,
till date police had done nothing.
On the next day the complainant and Jiban Kumar Routh went to
Vidyasagar S.G. Hospital at Behala, and got treated. Their medical papers
were annexed.
The complainant took a used car loan of Rs. 165000/- approx. from H.D.F.C.
Bank, Gillandere House, and also repayed 28 installments. Thereafter he
stopped paying it, as the Bank was claiming more amount than its original
dues. Earlier also the Tata Sumo was snatched illegally by Bank people on
27.03.2009. Thereafter complainant was lodged under Section 156(3) Cr.P.C.
and by virtue of order of Learned A.C.J.M., Alipore the vehicle has been
recovered by Behala Police Station. Thereafter complainant also filed a Civil
Suit vide T.S. No. 2579 of 2009, praying injunction and the same is pending
before the Learned 7th Civil Judge (Sr. Divn.)
The above named two accused persons also with their eight anti-social
associated have kidnapped your petitioner and his driver and confined them
for 10 days and also caused hurt by biting them and committed dacoity of
the vehicle and the cash and also used lethal weapons in committing such
illegal acts and they committed offences under Section
323/363/368/395/397/34. I.P.C.
5. The Learned Advocate for the petitioner submitted as follows:-
a) In the month of April, 2006 the opposite party no.2, obtained financial
assistance from the said bank for purchasing a four wheeler. An
amount of Rs. 1,68,000/- was sanctioned and disbursed to the
opposite party no.2 which the opposite party no.2 agreed to clear off by
paying 48 installments of Rs. 4827/- each. The opposite party no.2
has utilized the said loan for purchasing a Tata Sumo vehicle bearing
Registration No- WB 02M-9651.
b) The opposite party no.2 had initially paid a few installments and
thereafter committed default in repayment of the loan. In view of such
persistent defaults the said bank in exercise of its rights under the
agreement repossessed the aforesaid vehicle upon compliance with the
necessary norms. Prior to such repossession the said bank was
constrained to recall the loan agreement by its letter dated 2 nd
February, 2009.
c) The opposite party no.2 by suppressing the defaults committed by him
obtained an order under Section 156(3) of the Code of Criminal
Procedure which led to the registration of Behala Police Station Case
No. 135 of 2009 dated 3.04.2009 under Section 341/323/379/506 of
the Indian Penal Code. During the course of investigation in the
aforesaid case the vehicle in question was seized by the Investigating
Officer of the said case. The opposite party no.2 approached the
competent court by filing an application praying for release of the
vehicle. The said bank was not aware of filing of such application.
However the concerned court was pleased to release the vehicle in
favor of the opposite party no.2
d) The said bank through its employees preferred an application for
quashing before the Hon'ble High Court at Calcutta which was
numbered as C.R.R. 2662 of 2009 and the Hon'ble Court after hearing
the submissions made on behalf of the petitioners therein was pleased
to stay of all further proceedings in the aforesaid case.
e) Despite such release of the vehicle in his favour, the opposite party
no.2 persistently defaulted in repayment of the loan and in such
circumstances the said bank was constrained to file a Title Suit being
3017 of 2009 before the Learned 6th Bench, City Civil Court at
Calcutta and also filed a connected application under Order 40 Rule 1
read with section 151 of the Code of Civil Procedure inter alia praying
for appointment of Receiver. By order dated 17.6.2009, the Learned
Judge, 6th Bench, City Civil Court at Calcutta, considering the
exigency of the situation was pleased to pass an interim order therby
allowing the prayer of the said bank for appointment of Receiver. The
Receiver so appointed was directed to repossess the vehicle through
his agent and if necessary with assistance of police.
f) The pursuant to such order the Receiver appointed by the Learned
Civil Court through its agent repossessed the vehicle in question on
17.05.2010. After such repossession the Learned Receiver has duly
intimated the concerned court regarding the factum of repossession by
his authorized agent.
g) The opposite party no.2, despite having knowledge regarding
repossession of the vehicle by the Receiver appointed by the Civil
Court, with ulterior motive and with malafide intention had moved an
application under Section 156(3) of the Code of Criminal Procedure
thereby giving birth to the instant case.
6. The Learned Advocate for the petitioner prayed for quashing of the
proceedings pending before the Trial Court.
7. It appears that the vehicle in question has been seized by the Receiver
appointed by the City Civil Court and not by the officials of the said bank.
The de facto complainant despite having knowledge of such repossession by
the Receiver had filed the complainant based on false and concocted
grounds.
8. In Suryapal Singh V. Siddha Vinayak Motors And Anr. 1, the Hon'ble
Supreme Court observed as follows:
"2.Under the Hire Purchase Agreement, it is the financier who is the
owner of the vehicle and the person who takes the loan retain the
vehicle only as a bailee/trustee, therefore, taking possession of the
vehicle on the ground of non-payment of installment has already
been upheld to be a legal right of the financier. this Court vide its
judgment in Trilok Singh and Ors. v. Satya Deo Tripathi 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 alias Babu and Anr.
v. Kora Bibbikutty and Anr.; Jagdish Chandra Nijhawaa v. S.K.
Saraf and Charanjit Singh Chadha and Ors. v. Sudhir Mehra,
following the earlier judgment of this Court in Sundaram Finance
Ltd. v. State of Kerala and another; Smt. Lalmuni Devi v. State of
Bihar and Ors. and Balwinder Singh v. Asstt. Commissioner, C.C.E.
3. In view of the above, prima facie we are of the view that the
courts below has committed an error in granting compensation to the
present Petitioner and which appears to be non-sustainable in law."
9. In Tata Motors Finance Limited V. State of West Bengal 2, the Hon'ble
Calcutta High Court observed as follows:
"Now from records, it appears that before repossessing the vehicle the
notice was issued to the de facto complainant of the case, opposite
party no. 2 and both the pre-repossession intimation and post
repossession intimation were sent to the concerned police station. The
position has not been disputed by the learned counsel of the opposite
(2012) 12 SCC 355
2013 SCC OnLine Cal 18655
party except that relying on a decision of the Hon'ble Apex Court in the
case of Manager, ICICI Bank Limited v. Prokash Kaur reported in AIR
2007 Supreme Court 1349, he contended the recovery of bank loans
and seizure of vehicle can only be done only through legal means and
not in the way resort to by the petitioner.
Thus from the rival submissions of the parties and materials available
from the records, I find this is a case where the financier repossessed a
vehicle invoking the default clause contained in the hire purchase
agreement for non-payment of the instalments amount. Having regard
to that no criminal offence can said to have been committed. In this
regard reliance may be placed in the case of Trilok Singh v. Satya Deo
Tripathi reported in AIR 1979 SC 850. The view taken by the Hon'ble
Apex Court in the said case has been reaffirmed in the case of K.A.
Mathai @ Babu v. Kora Bibbikutty reported in (1996) 7 SCC 212 as
well as in the case of Charanjit Singh Chaddya v. Sudir
Mehera reported in (2001) 7 SCC 417.
This criminal revision accordingly succeeds and the impugned
complaint is quashed."
10. In the case of State of Haryana and Others v. Bhajan Lal and Others 3
the Hon'ble Supreme Court has held as follows :
"102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions relating to the exercise
of the extraordinary power under Article 226 or the inherent powers
under Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of cases by way of
1992 Supp (1) SCC 335
illustration wherein such power could be exercised either to prevent
abuse of the process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in
their entirety do not prima facie constitute any offence or make out a
case against the accused.
(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section
156(1) of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint
and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable
offence but constitute only a non− cognizable offence, no investigation
is permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd
and inherently improbable on the basis of which no prudent person can
ever reach a just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a criminal
proceeding is instituted) to the institution and continuance of the
proceedings and/or where there is a specific provision in the Code or
the concerned Act, providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to spite
him due to private and personal grudge."
11. In view of the above discussions, BGR No. 3265 of 2010, under Sections
362/323/344/368/395/397/34 of the Indian Penal Code, pending before
the Court of the Learned Additional Chief Judicial Magistrate, Alipore, in
connection with Behala Police Station Case No. 276 of 2010 dated
17.06.2010 is quashed.
12. The criminal revisional application being no. CRR 1722 of 2011 is allowed.
13. Accordingly, CRR 1722 of 2011 stands disposed of. Connected application, if
there be any, also stands disposed of,
14. There is no order as to cost.
15. Let the copy of this judgment be sent to the Learned Trial Court as well as
the police station concerned for necessary information and compliance.
16. All parties shall act on the server copy of this judgment duly downloaded
from the official website of this court.
(Ananya Bandyopadhyay, J.)
