Jharkhand High Court
Balram Bari @ Balaram Barick vs The State Of Jharkhand on 1 May, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1256 of 2012
Balram Bari @ Balaram Barick ...... Petitioner
Versus
1.The State of Jharkhand
2. Sanjay Kumar Mishra ...... Opp. Parties
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---------
For the Petitioner : Mr. Ashish Kr. Thakur, Advocate
Ms. Rishi Bharati, Advocate
Ms. Kabisha Goenka, Advocate
For the State : Mr. Shailesh Kr. Sinha, Advocate
For the O.P. No. 2 : Mr. Ashwini Kumar, Advocate
05/Dated: 01/05/2023
Heard Mr. Ashish Kr. Thakur, learned counsel for the petitioner, Mr.
Shailesh Kr. Sinha, learned counsel for the State and Mr. Ashwini Kumar, learned
counsel for the O.P. No. 2.
2. This petition has been filed for quashing the entire criminal
proceeding including order taking cognizance dated 04.10.2010 passed in
connection with Case No. C/1-Case No. 2012 of 2010, pending in the Court of
learned Judicial Magistrate, Jamshedpur.
3. The complaint petition has been filed alleging therein that the
complainant purchased L& T (P.C. 300) Poclan Machine on finance by L& T Finance
and the complainant was paying the installment but failed to pay the installment
for 7 months due to which there was re-schedulement between the parties and
the complainant was to pay Rs. 14,50,000/- in two installments and first
installment of Rs. 9,50,000/- was to be paid on or before 15.05.2010 while second
installment of Rs. 5,00,000/- was to be paid on or before 30.06.2010.
It was further alleged that the said poclan was delivered two months
late and while it was returning from Chakia Motihari to Jamshedpur by Trailer No.
NL 01D 2941 and as soon as it came to Koderma Ghati, some miscreants chased
the trailer and on the point of pistol they snatched the said trailer at Rajauli and
for that one case has been filed against the miscreants before the court of learned
C.J.M., Koderma. The snatching has done as per the direction of Managing Director
by hiring gundas and the accused persons have violated the terms and conditions
prior to payment of second instalment.
It was further alleged that the complainant has paid Rs. 32,46,000/-
out of Rs. 67,74,000/-.
4. Mr. Ashish Kr. Thakur, learned counsel for the petitioner submits that
the learned court has taken cognizance under section 420 of the I.P.C. on the
alleged allegation made in complaint. He further submits that the complainant
opted for having his finance from L & T Finance and accordingly hypothecation
agreement was entered into and the said fact is duly admitted. He further submits
that as per the Loan-cum-Hypothecation Agreement the complainant was to pay
a sum of Rs. 89,98,000/- in 35 equal monthly installments of Rs. 2,47,000/- each
commencing from 11.10.2008 and ending on 11.08.2011 and the complainant
failed to pay the same. He further submits that on 23.06.2010 an amount of Rs.
21,87,414/- excluding overdue charges, cheque bounce charges and future unpaid
loan installment was due and having left with no option and after exhausting all
means to collect the outstanding dues, the company exercised the power under
Clause 13 of the Agreement and repossessed the vehicle on 24.06.2010 in
accordance with law. He submits that in the entire complaint the allegation is
made that some miscreants took the vehicle on the point of pistol for that case
was registered before the learned Chief Judicial Magistrate at Koderma. He further
submits that based on that complaint, the case was filed in Jamshedpur which is
lacking territorial jurisdiction.
5. On the multiple F.I.R. for the same occurrence, learned counsel for
the petitioner relied in the case of "Tarak Dash Mukherjee and Ors. V. State
of Uttar Pradesh and Ors." (Criminal Appeal No. 1400 of 2022), arising out
of SLP (Criminal ) No. 503 of 2020 wherein para 12 the Hon'ble Supreme
Court has held as under:
"12. If multiple First Information Reports by the same person against
the same accused are permitted to be registered in respect of the same
set of facts and allegations, it will result in the accused getting entangled
in multiple criminal proceedings for the same alleged offence. Therefore,
the registration of such multiple FIRs is nothing but abuse of the process
of law. Moreover, the act of the registration of such successive FIRs on the
same set of facts and allegations at the instance of the same informant
will not stand the scrutiny of Articles 21 and 22 of the Constitution of
India. The settled legal position on this behalf has been completely
ignored by the High Court"
6. On territorial jurisdiction, learned counsel for the petitioner relied in
the case of " Y. Abraham Ajith and others V. Inspector of Police, Chennai
and another" (2004) 8 SCC 100 wherein para 19, the Hon'ble Supreme Court
has held as under:-
19. When the aforesaid legal principles are applied, to the factual
scenario disclosed by the complainant in the complaint petition, the
inevitable conclusion is that no part of cause of action arose in Chennai
and, therefore, the Magistrate concerned had no jurisdiction to deal with
the matter. The proceedings are quashed. The complaint be returned to
Respondent 2 who, if she so chooses, may file the same in the appropriate
court to be dealt with in accordance with law. The appeal is accordingly
allowed.
7. On these grounds, he submits that the entire criminal proceeding
may be quashed.
8. On the other hand, Mr. Ashwini Kumar, learned counsel for the O.P.
No. 2 submits that the vehicle in question was dispossessed without following the
due process of law and in that view of the matter criminality is made out and the
learned court has rightly taken cognizance. To buttress his argument, he relied in
the case of "Citicorp Maruti Finance Limited Vs. S. Vijayalaxmi" (2012) 1
SCC 1 and in the case of "ICICI Bank Ltd. V. Prakash Kaur and others"
(2007) 2 SCC 711.
9. Mr. Shailesh Kr. Sinha, learned counsel for the State submits that the
learned court has rightly taken cognizance.
10. In view of above submission of the learned counsel for the parties,
the court has gone through the contents of complaint petition as well as order
taking cognizance and finds that Loan-cum-Hypothecation Agreement was
entered into between the L& T Finance Company and the O.P. No.2 and the O.P.
No. 2 was to pay Rs. 89,98,000/- for which installment was fixed in 35 equal
monthly installments of Rs. 2,47,000/- each. The complainant failed to pay the
E.M.I., is an admitted fact. In the complaint petition it has been alleged that in
Koderma Ghati, the said occurrence took place and the vehicle in question was
taken away by the some miscreants on the point of pistol for that the case is
already registered before the court of learned C.J.M., Koderma, based on that the
present case has been filed against the petitioner. The petitioner is a Assistant
Manager of the said finance company, Jamshedpur.
11. To make out case under section 420 of I.P.C. the intention of
cheating from the very beginning is one of the ingredient in view of section 415 of
the I.P.C. which is definition part of cheating. In the case in hand it has not been
disclosed in the complaint petition how the petitioner has tried to cheat the
complainant from the very beginning. On the other hand, the O.P. No. 2 failed to
pay E.M.I.
12. Section 415 of the Indian Penal Code defines cheating and in order
to constitute an offence of cheating the complainant must allege that there was
fraudulent or dishonest intention at the time of making the promise. The
allegations which have been made in the complaint petition does not go to
suggest that there was deliberate or intentional act of dishonesty on the part of
the petitioner from the initiation of the business transaction. If the intention of
cheating is absent from inception of the transaction the same cannot constitute
an offence of cheating against the petitioner. Even otherwise the allegations
which have been levelled does not make out a case for an offence under
Sections 420 of the Indian Penal Code. There is no doubt that an act may
constitute a civil as well as a criminal wrong but as has been stated above, the
complaint petition as well as the subsequent events including the initiation of
the arbitration proceeding does not make out a case for which the petitioner
can be prosecuted under the provisions of the Indian Penal Code.
13. The judgment relied by the learned counsel for the O.P. No. 2 in
the case of Citicorp Maruti Finance Limited (supra) the case was initiated
under the Consumer Forum Act which was subject matter before the Hon'ble
Supreme Court and the bank has already complied the said direction of the
National Commission which suggests that for civil case consumer forum has
rightly passed order and in that view of the matter the said order was passed by
the Hon'ble Supreme Court.
14. The judgment relied by the learned counsel for the O.P. No. 2 in
ICICI Bank Ltd (supra), direction was issued by the High Court to register
F.I.R. against the bank and in that case it has been held that the bank is required
to resort to procedure recognized by law to take possession of the vehicle in
cases where borrower has committed default and the said order was quashed.
It further suggests that only civil case can be filed however in the case in hand
the case with regard to criminality has already been filed as discussed in para 7 of
the complaint petition itself. The case of the petitioner is fully covered with Tarak
Dash Mukherjee (surpa).
15. In view of above facts, reasons and analysis, the entire criminal
proceeding including order taking cognizance dated 04.10.2010 passed in
connection with Case No. C/1-Case No. 2012 of 2010, pending in the Court of
learned Judicial Magistrate, Jamshedpur, is quashed.
16. Accordingly, this petition is allowed and disposed of. Pending, I.A., if
any stands disposed of. Interim order is vacated.
(Sanjay Kumar Dwivedi, J.)
Satyarthi/
