Jharkhand High Court

Rakesh Sharma vs The State Of Jharkhand on 31 October, 2023

                                      1

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Cr.M.P. No. 2326 of 2013

   1. Rakesh Sharma
   2. Paritosh Bhattacharya
   3. Kumar Dhananjay @ Dhananjay Singh
   4. Ashim Das @ Asim                 ......          Petitioners
                         Versus
1.The State of Jharkhand
2. Md. Mustaque
                                                   ......      Opp. Parties
                   ---------

CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                           ---------
For the Petitioners : Mr. Ajay Kr. Sah, Advocate
For the State       : Ms. Lily Sahay, A.P.P.


07/Dated: 31/10/2023

Notice upon the O.P. No. 2 has been validly served however

nobody appeared on behalf of O.P. No.2. By order dated 14.10.2022 by way of

last opportunity the matter was adjourned observing that if the O.P. No.2 fails

to appear, appropriate order shall be passed. Today again on repeated calls,

nobody responded on behalf of O.P. No.2. In that view of the matter in absence

of the O.P. No.2, this petition is being heard on merit.

2. Heard Mr. Ajay Kr. Sah, learned counsel for the petitioners and Mrs.

Lily Sahay, learned counsel for the State.

3. This petition has been filed for quashing the entire criminal

proceeding including order taking cognizance dated 14.03.2013 in connection

with C.P. Case No. 310 of 2011, pending in the Court of learned Judicial

Magistrate, Ist Class, Bokaro.

4. The C.P. Case No. 310 of 2011 was filed alleging therein as under:-

(A) That, the complainant is an individual. He is doing the business of

transportation.

(B) That, the accused persons are employees and officials of "Magma

Fincorp Ltd." having its registered office and Magma House, 24 Park

Street, Kolkata - 700016 and Branch Office is various towns. The Branch

Office situated at Ranchi is located in Maru Towers, 50 Floor, Kanke Road,

Ranchi. The Branch office situated at Bokaro is located in Plot No. KA-6,

City Centre, Sector - IV.

Registration No. JH09H 7357, Engine No, - 70L62603761, Chassis No.

396522JSZ223844 under hire purchase agreement. The agreement was

executed on 30/11/2007 at Bokaro office situated as aforesaid. The copy

of the hire purchase agreement has not been supplied to the

complainant.

(D) That, the vehicle was handed over to the complainant on 15/12/2007

at Bokaro.

(E) That, the complainant after obtaining the possession of the vehicle

had been plying the same and the monthly installment was also been

paid regularly. The details of which is described in schedule below.

(F) That, the complainant had parked his vehicle in a Garage for its repair

on 12/12/2009 where due to such fact nearly 2 months time had elapsed.

(G) That, the complainant had also suffered acute stomach pain and he

had to be admitted in hospital for his treatment and after his discharge

from the hospital, he was in bed rest for a pretty longer period.

(H) That, the amount of installment due in the month of November, 2009

could not be paid by the complainant.

(I) That, the accused persons had obtained forceful possession of the

vehicle on 29/01/2010 while the same was being taken by the

complainant after its repair from the Garage. The accused persons after

obtaining the forceful possession had called the complainant firstly at

Bokaro Office and they had demanded submission of three installments of

the vehicle and a sum of Rs. 75,000/- as bribe.

(J) That, the complainant on hearing such demand had asked for the

rationale for such demand. The accused persons had directed the

complainant either to comply their dictate or to forget about the vehicle.

(K) That, the complainant had tried to contact the higher officials of the

company but the same could not bear any fruit hence, the complainant

had asked for sometime to arrange necessary funds.

(L) That, the accused persons had become ready to allow the

complainant sometime.

(M) That, the complainant after obtaining some time had arranged fund.

The accused persons namely Asim had also directed to meet three other

accused namely Rakesh Sharma, Dhananjay and Paritosh Bhattacharya at

Ranchi. The complainant accordingly went to Ranchi to meet the accused

persons.

(N) That, the accused persons had told the complainant that a sum of Rs.

3,62,000/- has to be submitted by the complainant.

(O) That, the complainant asked for the break up of the amount upon

which the accused persons had told that some advance installment is also

being realized. The complainant showed his inability to meet the fresh

demand.

(P) That, the accused persons had told the complainant that he had to

pay a sum of Rs. 75,000/- as bribe to them and he can submit a sum of

Rs. 2,00,000/-. The accused persons had further told that the amount of

bribe is to be paid at the first instance in cash, there upon the amount of

installment will be realized and receipt of the amount of installment will

be issued. The complainant once again had disclosed his inability to pay

the accused persons the amount of bribe upon which the accused

persons namely Rakesh Sharma, Paritosh Bhattacharya and Dhananjay

Singh had told the complainant to forget the vehicle.

(Q) That, the complainant had tried to contact the higher officials but no

response could be obtained by him.

(R). That, false assurance of the accused persons has also continued on

the part of the accused persons. The complainant was harassed by the

accused persons on the basis of their false promises and in the first week

of March, 2010 the accused persons had told the complainant that in the

firsts week of April, 2010 the complainant has to come along with two

guarantors.

(S). That, the complainant had contacted the accused namely Asim on

31/03/2010 and had apprised him that he will come on 1st of April, 2010

with the amount and the guarantors upon which the complainant had

been told by the accused Asim that his vehicle had already been sold on

30/03/2010.

(T). That, the complainant after such information had understood the

true colors of the accused persons and the same had been vindicated by

the statement of the accused persons as they had told that due to none

compliance of their demand of a sum of Rs. 75,000/- the vehicle of the

complainant was sold and they will take further step to realize some more

amount from the complainant.

(U). That, the accused persons had issued one letter datd. 05/04/2010

through speed post which was stated as "post sale notice", wherein they

had falsely stated that the information for sale (pre sale notice) was given

to the complainant but the same is a false statement. It has further been

stated in the said notice that after adjustment of the sale consideration of

Rs 7,52,000/- in the total outstanding a further sum of Rs. 1,90,491/- is

still outstanding and the same is to be paid within 15 days.

(V). That, the accused persons had further issued a letter on 28/04/2010

wherein they had demanded a sum of Rs. 3,52,312/ It is further

submitted on behalf of the petitioner that the accused persons have

forcefully obtained the possession of the dumper owned by the

complainant and further more they had sold the same without affording

any opportunity to him to pay the amount outstanding and it is further

submitted that they had sold the dumper against the provisions of law

and raising demand according to their own sweet will with dishonest and

malafide intention.

(W) That, the accused persons had committed various offences under the

Indian Penal Code and are liable to be prosecuted for the same.

5. Mr. Ajay Kr. Sah, learned counsel for the petitioners submits that

the learned court sent the complaint under section 156(3) of Cr.P.C. and

accordingly Sector 4 (Bokaro) P.S. Case No. 78 of 2010 was registered on

20.06.2010 and thereafter the police upon investigation has submitted final

form in favour of the petitioners showing the allegations false. He further

submits that on the protest petition, the learned court has taken cognizance

under sections 379/34 of the I.P.C. He submits that O.P. No.2 purchased the

vehicle on hire-purchase scheme of M/s Magma Fincorp Limited. He submits

that the petitioner no. 1 was posted as General Manager, petitioner no.2 is

Manager, petitioner no. 3 is also Manager and petitioner no. 4 is Executive in

M/s Magma Fincorp Limited. He submits that the O.P. No.2 failed to pay EMI

and in view of that the said vehicle was repossessed by the said company and

subsequently the said vehicle was put on sale and notice to that effect was also

issued by the company to the O.P. No.2. He submits that upon receiving the

notice the O.P. No.2 has not come forward thereafter the said vehicle was

already sold by the company. He submits that sections 379/34 of I.P.C. are not

attracted in view of the above facts and to buttress this argument, he relied in

the case of "Anup Sarmah Vs. Bhola Nath Sharma and others" (2013) 1

SCC 400. He refers to para 6 of the said judgment which is quoted

hereinbelow:-

"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. On these grounds he submits that the entire criminal proceeding

may kindly be quashed.

7. On the other hand, Mrs. Lily Sahay, learned counsel for the State

submits that chargesheet was not submitted against the petitioners however

the learned court on the protest has been pleased to take cognizance.

8. In view of above submissions of the learned counsel for the

parties, it appears that the O.P. No. 2 has purchased the vehicle on hire-

purchase scheme from M/s Magma Fincorp Limited. Subsequently EMI was not

paid by the O.P. No.2 in terms of hire-purchase agreement thereafter the said

vehicle was repossessed and put on sale by the said company. The petitioners

are only officers of the said company and even on notice of sale, the O.P. No.2

has not taken any step.