Jharkhand High Court

Raja Banerjee vs The State Of Jharkhand on 19 April, 2023

       IN      THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr.M.P. No. 3595 of 2013
       1. Raja Banerjee
       2. Chandramouli Kumar
       3. Kishore Mishra                               .....   ...      Petitioners
                                    Versus
      1. The State of Jharkhand.
      2. Vikash Kumar Mishra                          ..... ...       Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners : Mr. Ajay Kumar Sah, Advocate.

      For the State             :        Mr. Ravi Prakash, Spl.P.P.
      For the O.P. No. 2        :        None.
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09/ 19.04.2023 Heard Mr. Ajay Kumar Sah, learned counsel appearing for the petitioners and Mr. Ravi Prakash, learned Spl.P.P. appearing for the State.

2. Nobody has responded on behalf of the O.P. No. 2 in spite of repeated calls, although appearance has been made on his behalf by way of filing the vakalatnama and identical was the situation on 03.08.2022. As such, this petition has been heard in absence of O.P. No. 2.

3. This petition has been filed for quashing of the entire criminal proceedings in connection with Protest-cum-Complaint Petition C.P. Case No. 373 of 2011 [arising out of Balidih P.S. Case No. 05 of 2011 corresponding to G.R. No. 77 of 2011] including the order taking cognizance dated 12.12.2011, by which, cognizance for the offence under Sections 379 and 34 of the Indian Penal Code has been taken against the petitioners, pending in the court of learned Judicial Magistrate, 1st Class, Bokaro.

4. The complainant filed a C.P. Case No. 787/2010, in which the complainant has alleged regarding forcible possession of his vehicle by the Financer M/s Magma Finance Limited. The said complaint was sent to Balidih P.S. for registration of FIR and investigation. The Balidih P.S. registered the case vide Balidih P.S. Case No. 05/2011 and after investigation submitted final report by observing that the case was untrue and the police recommended for initiation of prosecution against the informant under section 182 and 211 of the IPC. Thereafter, the complainant filed a protest cum complaint petition in the court of learned C.J.M. Bokaro alleging therein that the complainant purchased a truck bearing Registration No. JH-09-H- 7010 from Magma Finance Limited having Branch Office at Sector -IV, B.S. City, Bokaro. The further case of the complainant is that the complainant paid altogether 31 installments but the Financer was trying to seize the vehicle. It is alleged that on 7.9.2010

-2 when the truck was loaded with bricks and coming from Gola the accused persons boarded on Bolero vehicle illegally captured the truck. It is alleged that the accused persons abused and assaulted the driver and khalasi of the truck and looted a mobile phone from the driver of the vehicle.

5. Mr. Sah, learned counsel appearing for the petitioners submits that the complainant filed a complaint petition before the learned CJM, Bokaro earlier vide complaint petition No. 787 of 2010 and the learned CJM has been pleased to send the complaint petition for institution of the FIR in Balidih P.S. and O/c Balidih P.S. instituted the FIR, vide Balidih P.S. Case No. 05 of 2011 under Sections 341, 323, 379, 504/34 of the IPC. He further submits that after investigation, the police has submitted the final form stating that the case is found to be false and after being dissatisfied with the final report, the O.P. No. 2 filed a protest petition in the court of learned Chief Judicial Magistrate, Bokaro, being Protest-cum- Complaint Petition No. 373 of 2011, in which, the learned court has taken cognizance under Sections 379 and 34 of the Indian Penal Code. He further submits that in the cognizance, nothing has come that what are the prima facie materials against these petitioners. He further submits that the complainant has approached the office of Magma Finance Ltd at Dhanbad for getting finance for purchase of a truck, wherein a sum of Rs. 8,33,000/- has been financed to the complainant for purchase of the truck of Tata Company. He further submits that an agreement was entered into, in which, one Sachitanand Singh was made a guarantor. As per the agreement, the complainant had to pay Rs. 25,400/- as monthly installment and the total installment was fixed of 44 EMIs. He further submits that just after six months, the complainant became defaulter in making the payment of monthly installment and he is not paying the EMI and thereafter the company has issued notice several times to the complainant and ultimately the financer company has repossessed the vehicle in question on 07.09.2010. He further submits that after re- possession, the local police was informed in writing and the same was entered in the Station Diary of Mufassil P.S. Chaibasa on 08.09.2010. He further submits that the case is arising out of an agreement of hire purchase and no ingredients of Section 379 IPC are made out. He further submits that till the EMIs are not paid, the financer is the owner of the vehicle and to buttress his arguments, he relied in the case of

Anup Sharma Versus Bhola Nath Sharma & Ors., reported in (2013) 1 SCC 400, wherein the Hon'ble Supreme Court in paras- 6 and 7 held as follows:-

"6. In Charanjit Singh Chadha v. Sudhir Mehra [(2001) 7 SCC 417 : 2001 SCC (Cri) 1557] this Court held that recovery of possession of the vehicle by the financier owner as per terms of the hire-purchase agreement, does not amount to a criminal offence. Such an agreement is an executory contract of sale conferring no right in rem on the hirer until the transfer of the property to him has been fulfilled and in case the default is committed by the hirer and possession of the vehicle is resumed by the financier, it does not constitute any offence for the reason that such a case/dispute is required to be resolved on the basis of terms incorporated in the agreement. The Court elaborately dealt with the nature of the hire- purchase agreement observing that in a case of mere contract of hiring, it is a contract of bailment which does not create a title in the bailee. However, there may be variations in the terms and conditions of the agreement as created between the parties and the rights of the parties have to be determined on the basis of the said agreement. The Court further held that in such a contract, element of bailment and element of sale are involved in the sense that it contemplates an eventual sale.

"8. ... The element of sale fructifies when the option is exercised by the intending purchaser after fulfilling the terms of the agreement. When all the terms of the agreement are satisfied and the option is exercised a sale takes place of the goods which till then had been hired." (Charanjit Singh Chadha case [(2001) 7 SCC 417 : 2001 SCC (Cri) 1557] , SCC p. 422, para 8) While deciding the said case, this Court placed reliance upon its earlier judgments in Damodar Valley Corpn. v. State of Bihar [AIR 1961 SC 440] , Instalment Supply (P) Ltd. v. Union of India [AIR 1962 SC 53] (SCC p. 744, para 8), K.L. Johar& Co. v. CTO [AIR 1965 SC 1082] , (AIR p. 1090, para 17) and Sundaram Finance Ltd. v. State of Kerala [AIR 1966 SC 1178].

7. In view of the above, the law can be summarised

that in an agreement of hire purchase, the purchaser remains merely a trustee/bailee on behalf of the financier/financial institution and ownership remains with the latter. Thus, in case the vehicle is seized by the financier, no criminal action can be taken against him as he is repossessing the goods owned by him.

6. On the other hand Mr. Ravi Prakash, learned Spl.P.P. appearing for State submits that the learned court has taken the cognizance on the protest petition filed by the O.P. No. 2.

7. In view of above facts and submissions of the parties, the court has gone through the materials available on record and finds that admittedly the complaint case was filed by the O.P. No. 2 for re- possession of the vehicle by the company namely Magma Finance Company Ltd. and the petitioners are the officers of that company. The case has been investigated by the police and final form was submitted stating therein that the case was found to be false, however, on protest petition, filed by the O.P. No. 2, the learned court has taken the cognizance against the petitioners under Sections 379 and 34 of the Indian Penal Code. The case is arising out of hire purchase agreement and admittedly the EMIs are not paid by the complainant and the financer company has repossessed the vehicle, which was duly informed to the concerned police station. Further what are the materials against the petitioners are not disclosed in the order taking cognizance. The case is arising out of hire purchase agreement and in view of hire purchase agreement, the case of the petitioners is fully covered in light of the judgment relied by learned counsel appearing for the petitioners in the case of Anup Sharma (Supra).

8. In view of the above, no ingredients of Section 379 IPC is made out. Accordingly, the entire criminal proceedings in connection with Protest-cum-Complaint Petition C.P. Case No. 373 of 2011 [arising out of Balidih P.S. Case No. 05 of 2011 corresponding to G.R. No. 77 of 2011] including the order taking cognizance dated 12.12.2011, by which, cognizance for the offence under Sections 379 and 34 of the Indian Penal Code has been taken against the petitioners, pending in the court of learned Judicial Magistrate, 1st Class, Bokaro, are hereby, quashed.