Sanjay Singh vs Govt. Of Nct Of Delhi & Anr.
2009 Latest Caselaw 3191 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                   CRL. M.C. NO.538/2009

                                         Date of Decision : 17.8.2009

SANJAY SINGH                                     ......Petitioner
                              Through:    Mr.R.N.Yadav,
                                          proxy counsel

                                Versus

GOVT. OF NCT OF DELHI & ANR.                    ...... Respondents

                      Through:            Mr. Pawan Bahl, APP for
                                          the State.
                                          Mr.Sudeep Kumar,
                                          Advocate for respondent
                                          no.2.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                       YES
2.     To be referred to the Reporter or not ?            YES

3.     Whether the judgment should be reported
       in the Digest ?                                    YES

V.K. SHALI, J. (oral)

1. This is a petition for quashing of FIR No.676/2006 registered

at P.S. Patel Nagar under Section 406/409 IPC.

2. Briefly stated the facts of the case are that the petitioner

herein was employed with Sahara India Pariwar as a Junior

Executive Worker. In that capacity, the petitioner is

purported to have been handed over the possession of the two

vehicles. One vehicle was a two wheeler, make TVS Suzuki

Max-100 motorcycle, bearing registration no.HR-26/S 7505

while as the other was a Maruti Alto car bearing registration

No.DL-9C.J 5641. Both these vehicles were registered in the

name of Sahara India Pariwar-respondent herein.

3. So far as the Alto car is concerned, it is stated that the same

was purchased by the petitioner on hire-purchase basis and

he was to pay monthly instalments towards the liquidation of

the sale price of the vehicle. It is alleged that since the

petitioner had defaulted in payment of the instalments, his

services were dispensed with and he was asked to return the

vehicles.

4. The petitioner having failed to do so, the

respondent/complainant filed a complaint under Section

406/409 IPC against the petitioner in the Court of Competent

Ilaka Magistrate and vide order dated 14.11.2006, the learned

Magistrate directed the registration of an FIR in pursuance of

exercise of its powers under Section 156 (3) of Cr.P.C. This is

how the FIR was registered against the petitioner.

5. Since the processes were issued against the petitioner, he

challenged the same before the learned ASJ, Delhi in

Crl.Rev.P. No.109/2007 which was dismissed on 31.10.2007.

The petitioner still feeling aggrieved has chosen to file the

present petition for quashing of the FIR.

6. On the last date of hearing i.e. on 15.5.2009, it was brought

to the notice of this Court that steps u/s 82 of the Cr.P.C

have been initiated against the petitioner and as he was not

responding to the processes issued against him, the date of

hearing was given as 30.5.2009 for appearance before the

learned MM.

7. This Court was indulgent and restrained the police from

arresting the petitioner till 30.5.2009 on which date he was

directed to appear before the learned MM and on the same

day he took permission for grant of personal exemption so

that he could submit to the processes of law and the trial

could proceed.

8. It has now been revealed by the learned APP that the

petitioner had appeared before the learned Magistrate

through counsel on 30.5.2009 but thereafter he failed to

respond, as a consequence of which the process under

Sections 82 and 83 Cr.P.C. were completed and the learned

MM passed the orders declaring the petitioner as a

proclaimed offender.

9. The learned counsel for the petitioner has also not appeared

today and the proxy counsel has sought an adjournment.

Keeping in view the aforesaid background, this Court is not

inclined to oblige the proxy counsel by giving an adjournment

especially when this is a matter which can be disposed of.

10. I have heard the learned APP as well as the learned counsel

for respondent no.2 and perused the record.

11. A perusal of the grounds on which the quashing of the FIR is

prayed is that in matters of hire purchase, there cannot be a

criminal liability. The petitioner in support of his contention

in the petition itself has mentioned authorities in this regard.

The first authority which has been relied upon by the

petitioner is a case titled Bhagya Products (P) Ltd. Vs.

Commissioner of Police and Ors. 2003 (69) DRT 1 and the

second authority is Govind Vs. State 104 (2003) DLT 51

(10).

12. In addition to this, the petitioner has also relied upon a case

titled G.Sagar Suri & Anr. Vs. State of U.P. & Ors. AIR 2000

SC 754 and Inder Mohan Goswami & Anr. Vs. State of

Uttaranchal & Ors. AIR 2008 SC 251 Vol. 8 2007 SLT 554.

13. The learned counsel for the petitioner has contested the pleas

of the petitioner by urging that the judgments which have

been relied upon by the petitioner are not applicable to the

facts of the present case.

14. I have carefully considered the respective submissions of the

parties. The two judgments i.e. Bhagya Products (supra) and

Govind Lal (supra) are concerned, the Court essentially deals

with a factual matrix where a person concerned had taken

loan for purchase of a vehicle and thereafter he had defaulted

in payment of the said loan, whereupon the financing agency

(be that a bank or a financing company) had repossessed the

vehicle while the same was being used by the parties

concerned and that the Court was called upon to consider as

to whether a case under Section 420/406 could be registered

against such parties.

15. It was in this background that the Courts observed that an

offence of breach of trust or cheating would not be made out

and restriction was put on the financing company to

repossess the vehicle. The Court had also laid down

elaborate guidelines for repossessing the vehicle.

16. So far as the facts of the present case are concerned, they are

totally distinguishable and consequently the law laid down in

the said factual matrix cannot be made applicable to the facts

of the present case. The petitioner admittedly is an employee

of M/s Sahara Group of Companies and in the capacity of

being that employee, he was given a motorcycle and a car for

use. No doubt the said car and a vehicle were purchased by

the petitioner on hire purchase basis by taking a loan from

his employer namely M/s Sahara India but as he had

resigned from the services and not settled the said loan.

Consequently, the complainant M/s Sahara India had

required him to return the vehicles which were admittedly

registered in the transport authority in the name of the

employer. The petitioner did not respond to such a request

for return of the vehicle and it was in this background that

the complainant filed a complaint under Section 156 (3)

Cr.P.C. where upon the learned Magistrate was pleased to

direct the registration of an FIR under Section 406 IPC i.e. the

breach of trust and Section 409 IPC, Breach of trust by a

public servant.

17. It could not be said that merely because a person has taken a

vehicle on hire purchase basis then he will not be guilty of the

offence of breach of trust, if he fails to return the vehicle or

honour the commitments made by him. The very essence of

the offence of the breach of trust is that there should be

entrustment. The very fact that the vehicle is purchased by

the company and is registered with the transport authority in

its name shows that the company is the owner of the vehicle.

The vehicle is entrusted to the employee with the condition

that he would pay a specified amount as hire charges till the

time the principal price of the vehicle and interest, if any is

liquidated. If he leaves the company in midway, he is under

an obligation to return the vehicle or get his ownership

perfected by paying the balance. By not doing either of the

two, the learned Magistrate was justified in getting the FIR

registered against him and there is nothing wrong in the

same.

18. For these reasons, I feel that the facts of the present case are

distinguishable and consequently the judgments which have

been relied upon by the plaintiff are not helpful to him.

19. So far as the judgment in case G.Sagar Suri case is

concerned, that only lays down a general preposition that the

criminal justice machinery should not be permitted to be mis-

used at the instance of a complainant in order to give vent to

his frustration. These are the general observations and

nobody can dispute the efficacy or under value the

observations passed by the Supreme Court in the said

judgment that issuance of the process in a criminal complaint

or registration of an FIR in pursuance to a complaint having

been made under Section 156 (3) of Cr.P.C. is a serious

matter and therefore, not only the Court but the party must

also act carefully and it should not affect the liberty of an

individual. I do not find that in the instant case, it could be,

by any stretch of imagination said that the complainant had

out of sheer frustration lodged a complaint against the

present petitioner under Section 156(3) of Cr.P.C. to satisfy

himself. Court feels that the complainant was well within his

right to activate the criminal justice machinery as the

petitioner had failed to hand over the possession of the two

vehicles which was with him in the capacity of a trustee.

20. I accordingly, reject the contention of the learned counsel for

the plaintiff that the FIR registered against the petitioner or

the direction which has been given by the learned Magistrate

directing the registration of an FIR against the petitioner

deserves to be quashed.

21. I feel that the petition is totally misconceived and accordingly,

the same is dismissed.

V.K. SHALI, J.

AUGUST 17, 2009 RN