Jharkhand High Court
Rajesh Kumar Mandal vs The State Of Jharkhand And Another on 4 May, 2023
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 1743 of 2014
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1.Rajesh Kumar Mandal
2.Ramesh Vishwakarma .... Petitioners
-- Versus --
The State of Jharkhand and Another .... 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. V.S. Sahay, Advocate
For the O.P.no.2 :- Mr. Kalyan Banerjee, Advocate
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5/04.05.2023 This petition has been filed for quashing of the entire
criminal proceeding in connection with C.P.Case No.462 of 2013 including
order taking cognizance dated 31.7.2013, pending in the court of Judicial
Magistrate, 1st Class, at Dhanbad.
The complaint has been filed alleging therein that the
complainant has purchased vehicle TATA LPT TRUCK-2518 having its
registration no.JH-10AC-8295 on hire purchase basis with tanker. After
purchase of vehicle the complainant expensed a sum of Rs.6,00,000/-.
The accused took 13 blank cheques from the complainant and
complainant paid 1st installment of Rs.48,500/- on 10.3.2012. The
accused company took away forcibly the tanker of complainant and also
abused the complainant. The I.O of this case wrongly stated in the FRT
that no any cheque was cleared with regard to installment but cheque
was honored on 10.3.2012 and vehicle was seized on 14.3.2012.
2. Learned counsel for the petitioner submits that O.P.No.2
instituted the complaint case which was sent to the police under section
156(3) Cr.PC and pursuant thereto the case has been instituted. He
submits that the final form was submitted stating mistake of facts. He
further submits that on protest petition learned court has taken
cognizance. He further submits that the allegation is made that finance
company has possessed the vehicle in question and the said vehicle was
re-possessed on 14.3.2012 wherein case is filed on 30.1.2022. He
submits that O.P.no.2 also approached Consumer Disputes Redressal
Forum at Dhanbad and the said petition was dismissed. On these
grounds, he submits that no case under the IPC is made out however on
protest petition, the learned court has taken cognizance.
3. The learned counsel for the O.P.No.2 submits that the
learned court has taken cognizance looking to the solemn affirmation and
enquiry witnesses and the case is made out and at this stage this Court
may not interfere under section 482 Cr.PC.
4. Learned counsel for the respondent State submits that final
form has been submitted and on protest petition the learned court has
taken cognizance.
5. In view of the above submission of the learned counsel for
the parties, the Court has gone through the contents of the protest
petition as well as complaint petition and finds that the allegation in the
complaint case and the protest petition are similar and police has
investigated the case and submitted final form stating mistake of facts.
The O.P.No.2 has also approached Consumer Disputes Redressal Forum,
at Dhanbad and the said petition was also dismissed which suggest that
for deficiency of service the criminal case is filed. It is well settled that
until the EMI is paid the finance company is the owner of the vehicle. In
this regard reference may be made to the case of Anup Sharma v. Bhola
Nath Sharma and Others, (2013) 1 SCC 400. Paragraph no.6 of the said
judgment is quoted below:
"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] ."
6. Further the cognizance has been taken under section 379,
323, 341 and 34 of the IPC and the ingredients of those sections are not
made out.
7. In view of the above reasons and analysis, entire criminal
proceeding in connection with C.P.Case No.462 of 2013 including order
taking cognizance dated 31.7.2013, pending in the court of Judicial
Magistrate, 1st Class, at Dhanbad is quashed.
8. Cr.M.P. No.1743 of 2014 stands allowed and disposed of.
9. Pending petition if any also stands disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/;
