Himachal Pradesh High Court
Nipun Jain & Others vs State Of H.P & Others.Rt on 5 September, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA .
Cr.MMO No. 48 of 2015 Reserved on : 17.8.2016 Decided on : 05.9.2016 of Nipun Jain & others .....Petitioners Versus State of H.P & others.rt ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1Yes.
For the petitioners: Mr. Vijay K Verma, Advocate.
For the Respondents: Mr. R.S Thakur, Additional Advocate General for respondents No. 1 and 2.
Respondents No. 3 and 4 ex-parte.
Sureshwar Thakur, J Through the instant petition, the petitioners ventilate a relief for quashing of summoning order of 6.1.2015 pronounced by the Court of the learned Judicial 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:09:39 :::HCHP
...2...
Magistrate, 1st Class, Court No.II Dehra. They also pray for .
quashing of proceedings pending therebefore in pursuance to the lodging of an FIR No. 79 of 24.5.2007 constituting therein commission of offences by the petitioners/accused of under Sections 341, 392, 323, 324, 504,506, 149 and 120-B of Indian Penal Code.
2. rt The complainant Sh. Suman Kumar Sharma on finance standing purveyed to him by the ICCI Bank Ltd, Branch Office, Mandi purchased Innova car bearing registration No. HP-21A-2321. However, he omitted to adhere to the apposite schedule qua his defraying to it the relevant loan installments, schedule whereof stood embodied in a hire purchase agreement recorded inter-se him and the financer. The vehicle aforesaid which stood purchased by him on finance standing purveyed to him by the financer was hence the subject of a hypothecation deed drawn inter-se him and the financer.
Uncontrovertedly the vehicle aforesaid stood purchased by him on a hire purchase basis also a condition stood ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...3...
incorporated in the relevant hypothecation deed/hire .
purchase agreement whereunder finance stood purveyed to the complainant by the financer, whereunder an authorization stood foisted in the financer to, on purported of occurrence of default by the loanee in payment of loan installments qua it, take possession of the hypothecated rt asset(s). The relevant condition of the agreement foisting the aforesaid empowerment in the financer to retake possession of the relevant vehicle on occurrence of default by the loanee in the relevant payment of the apposite loan installments qua it, stands extracted hereinafter:-
"On the happening of any of the events of default, ICICI Bank may by a notice in writing to the Borrower/s and without prejudice to the rights and remedies available to ICICI Bank under the Loan Terms or any other Transaction Document or otherwise: (a) call upon the Borrower/s to pay all the Borrowers/s Dues in respect of the facility and otherwise, and/or (b declare the security, if any, created in terms of pursuant to he Loan Terms and/or the other Transaction Documents to be enforceable, and ICICI Bank, its representative and/or such other person in favour of whom such security or any part thereof is created shall have, ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...4...
inter alia, the following rights (notwithstanding .
anything to the contrary in the loan terms and /or the other Transaction Documents and irrespective of whether the entire facility or Borrowers/s Dues has/have been recalled) namely:
I. to enter upon and take possession of the Asset(s) in accordance with the provisions of the of Loan Terms: and/or ii. to transfer or deal with the asset(s) by way rt of lease, leave and license, sale or otherwise in accordance with the provisions of the loan terms.."
3. On anchorage of the aforesaid authorization bestowed upon the financer, it, on purported occurrence of default on the part of the loanee/complainant to defray loan installments to it, proceeded to on 26.4.2007 through the accused named in the FIR forcibly retake possession of the relevant vehicle from the complainant. Also during the course of theirs re-taking forcible possession of the relevant vehicle from the complainant they allegedly committed offences constituted under Sections 341,392,323,324,504,506 readwith Section 149,120-B of I.P.C. In sequel thereto the complainant reported the matter to Police Station, Jawalamukhi vide DDR No. 6 of 27.4.2007. The complainant ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...5...
re-approached the police station, concerned on 30.4.2007 .
and on 1.5.2007 qua the action initiated by it on his DDR aforesaid. However no cognizance stood taken by the police on his apposite DDR instituted therebefore.
of Thereafter, the complainant filed an application under Section 156(3) Cr.P.C before the Court of the learned Judicial rt Magistrate, Ist Class, Dehra, who under its pronouncement made on 23.5.2007 directed for registration of an FIR whereupon FIR No. 79/2007 of 24.5.2007 stood registered at police Station, Jawalamukhi. On conclusion of investigations held by the Investigating Officer, a "Cancellation Report" was instituted before the Court concerned. The complainant raised objections qua the acceptance by the Court concerned of the "Cancellation Report" preferred therebefore by the Investigating Officer.
The learned Judicial Magistrate concerned rendered an adjudication on "Cancellation Report" preferred therebefore by the Investigating Officer holding therein a proposal for a verdict being rendered for closure of the ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...6...
inculpatory role constituted in the FIR vis-à-vis the accused.
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Also it rendered an adjudication upon the objections raised by the complainant against its acceptance by it.
4. A perusal of the verdict rendered thereupon by of the learned Judicial Magistrate concerned makes an evident display of the Court rejecting the preferment therebefore rtof a "Cancellation Report" of the FIR concerned rather it directed the Investigating Officer concerned to reinvestigate the case.
5. The investigating Officer on holding further investigations qua the offences constituted against the accused in the relevant FIR concluded of no penal offences standing constituted therein against the accused whereupon he reinstituted a "Cancellation Report" qua it before the learned Judicial Magistrate concerned. The complainant raised objections qua it before the Magistrate concerned whereupon the Judicial Magistrate concerned recorded a verdict in dis-concurrence with the apposite cancellation report preferred therebefore by the ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...7...
Investigating officer rather she held concurrence with the .
apt objections qua its acceptance reared therebefore by the complainant. The learned judicial Magistrate directed for further investigations being conducted by the of Investigating Officer. In sequel thereto the learned Judicial Magistrate concerned ordered for issuance of summons rt upon the accused, orders whereof stand prayed to be quashed and set aside.
6. The drawing up of the relevant hire purchase agreement/hypothecation deed inter-se the complainant and the finance-company was a precursor to the purchase of the relevant vehicle by the former. The prima donna factum of the relevant transaction standing sequelled by drawing of a hire purchase agreement/hypothecation deed vis-à-vis the financer and the complainant renders amenable an inference of the complainant not in quick promptitude to his purchasing it, acquiring absolute dominium thereon rather his standing bestowed with an absolute dominium thereon only on his liquidating the ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...8...
relevant entire loan liability towards the financer. In coming .
to the aforesaid view this Court finds support from a judgment of the Hon'ble Apex Court rendered in AIR 1966 Supreme Court 1178 ( Sundaram Finance Ltd vs. State of of Kerala, relevant paragraph 10 whereof stands extracted hereinafter.
"(10) rt In the present case the transactions were admittedly hire-purchase agreements. The financier purchased the cars for the amounts required to be paid to the dealer and entered into specific hire-purchase agreements with the customers. They contained all the usual terms that are found in a hire-purchase agreement. Neither the fact that the agreements were entered into because the customers had no funds to purchase the motor-cars nor the circumstances that part of the consideration was already paid to the dealer affects the nature of the transaction. The fact that the customer executed a promissory note for the money advanced by the financier does not affect the question, for that was merged in the hire-purchase transaction. If the said terms were not carried out, the customers could not claim any rights under the agreements and the financier continued to be the owner freed from any obligation created under the agreements. Can the financier thereafter enforce the promissory note? I think he cannot.
As I have stated earlier, the transactions purported to be hire- purchase agreements and they must be treated as such, as the common intention of the parties was to enter into such transactions. A deeper scrutiny of the transactions shows that ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...9...
the dealer and the financier were closely connected .
companies and for their own reasons they have split up the business of hire-purchase between them. In effect and in substance, the dealer without receiving the whole money put the customers in possession of the cars under the hire- purchase agreements."
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7. While carrying forward the inference aforesaid drawn hereinabove of till the loanee liquidating the entire rt relevant loan liability vis-à-vis the financer, his not thereupto standing foisted with absolute dominion qua the relevant vehicle purchased by him under the relevant hire purchase agreement/hypothecation deed drawn qua it inter-se him and the financer, contrarily vestment of absolute dominion thereto occurring only on his liquidating the entire loan liability towards the financer, leads this Court to allude to the relevant condition embodied in the relevant agreement whereunder a preemptory right stands foisted in the financer to retake its possession on occurrence of omission(s) of the loanee to liquidate his loan liability qua it.
The bestowment of an empowerment in the financer to retake its possession on occurrence of default on the part ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...10...
of the loanee to liquidate his loan liability qua it also stands .
mandated by the Hon'ble Apex Court in (2001) 7 SCC 417 (Charanjit Singh Chadha and others versus Sudhir Mehra) to hold validation.
of
8. In the judgment aforestated the Hon'ble Apex Court has made a pronouncement qua retaking of rt possession of the vehicle by the financer from the hirer/loanee on anvil of satiation standing begotten qua the apposite condition embodied in the hire purchase agreement which stood struck inter-se both standing bereft of any penally inculpable mens rea. Consequently it discountenanced the grievance ventilated by the loanee in his complaint instituted before the relevant police agency qua the forcible retaking of the apposite vehicle by the financer constituting a penally inculpable offence rather it concluded qua galvanizing of the criminal machinery by the complainant tantamounting to his abusing the process of law also his harassing besides humiliating the agent(s) deployed by the finance-company ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...11...
to retake its possession from him preponderantly given the .
relevant retaking of its possession by its agents standing anvilled upon the relevant condition embodied in the hire purchase agreement whereupon the financer stood of empowered to through its agents retake its possession, on occurrence of default on the part of the loanee to liquidate rt his loan liability qua the financer. The learned counsel appearing for the petitioners/accused would succeed in espousing herebefore qua the ratio decidendi propounded by the Hon'ble Apex Court in its verdict aforesaid holding apt aplomb application hereat only on evident occurrence of both concurrence besides alignment inter-se the factual matrix manifested in the judgment supra of the Hon'ble apex Court vis-à-vis the factual scenario prevalent hereat.
Conspicuously when the relevant trite factual scenario embodied in the judgment of the Hon'ble apex Court supra is of occurrence of default on the part of the loanee in liquidating his loan installment qua the financer actuating the latter to terminate the hire purchase agreement ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...12...
recorded inter-se both wherein the relevant vehicle stood .
constituted as its corpus. Also a perusal of the judgment supra of the Hon'ble Apex Court unveils the factum of the loanee therein issuing to the financer a cheque constituted of in a sum of Rs.84,000/- towards the relevant defrayment by him of the apposite loan installments qua the relevant rt vehicle, cheque whereof stood dishonoured, constraining the financer to institute a criminal complaint against the loanee therein under Section 138 of NI Act. With this Court culling from the rendition of the Hon'ble Apex Court in AIR 1966 Supreme Court 1178 qua the essential rubric ingraining a hire purchase agreement standing constituted in the factum of the financer, till the occurrence of liquidation by the loanee of the entire component of the relevant loan liability qua it, it continuing to hold dominium besides title qua the relevant asset(s) also contrarily the loanee till his not defraying the entire sum of loan vis-à-vis his financer his not holding any title qua the relevant assets rather his acquisition of absolute dominium thereon standing deferred ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...13...
besides postponed till his liquidating his entire loan liability .
vis-à-vis the financer, has a telling effect upon the embodiment of a condition in the relevant hypothecation/hire purchase agreement drawn inter-se the of loanee with the financer wherewithin a leverage stands foisted upon the financer to through its agents retake its rt possession on occurrence of default by the loanee in liquidating his entire component of loan qua it. Also thereupon any acquisition of possession by it of the relevant vehicle acquires legitimacy also its, planking its relevant act thereupon acquires the mantel of validation. However before mete-ing deference thereto qua the factual matrix hereat, the visible stark contradistinctivity therein vis-à-vis the factual scenario prevailing hereat, occurs in the relevant germane fact embodied therewithin of the financer therein on occurrence of default by the loanee in liquidating his entire component of loan vis-à-vis the financer, it standing goaded to terminate the relevant hire purchase agreement also occurs in the visible fact of the ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...14...
loanee therein issuing a cheque constituting therewithin a .
part of his loan liability qua the relevant asset(s), cheque whereof stood dishonoured whereupon the financer stood actuated to institute a complaint under Section 138 of the of Negotiable Instruments Act, hence leans this Court to hold significantly when in digression thereof hereat the relevant rt hire purchase agreement drawn inter-se the financer and the loanee/complainant stands un-rescinded also with 54 postdated cheques standing issued by the loanee/complainant to the financer holding therewithin his loan liability vis-à-vis the financer, standing not proven to be dishonoured nor proof standing adduced by the financer hereat qua on theirs standing purportedly dishonoured, its instituting a complaint against the loanee under Section 138 of the Negotiable Instruments Act, renders the ratio decidendi held in the judgment of the Hon'ble Apex Court to hence stand un-attracted hereat. With the relevant hire purchase agreement qua the relevant asset(s) recorded inter-se the loanee/complainant hereat vis-à-vis the ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...15...
financer hereat remaining un-rescinded hence when it .
remains alive besides with none of the cheques issued by the loanee/complainant to his financer evidently standing not dishonoured nor any complaint standing instituted of against the complainant by the financer under Section 138 of the Negotiable Instruments Act, constitutes the action of rt the financer to through its agents retake its forcible possession from the complainant to be ridden with a vice of its standing initiated in a posthaste manner bereft of thorough application of mind by it qua the loanee/ complainant infracting the mandate of the apposite schedule of repaying his loan qua it rather hence its standing actuated by its pedantically on the plank of the relevant condition embodied in the hire purchase agreement whereupon it on purported occurrence of default by the latter in liquidating his loan liability stood foisted with an empowerment to retake its possession, conspicuously when any imputation of validation to its relevant act of retaking its possession from the complainant ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...16...
on anvil of occurrence of default by the loanee in .
liquidating his loan liability qua it enjoins occurrence herebefore of prima-facie evidence qua preceding thereto its ensuring of the loanee/complainant being an obdurate of besides a recalcitrant defaulter, evidence whereof for reasons afore-stated stands un-adduced, renders the act of rt the financer to plank, its act of retaking its possession from the loanee, on the relevant condition afore-stated embodied in the hire purchase agreement, to hence hold no validation in law. Also with deferment of vestment of title in the loanee/complainant continuing till his liquidating the entire component of the relevant loan vis-à-vis the financer contrarily also with the relevant financer thereupto holding title qua the relevant asset(s) would not yet underpin in it any indefeasible right to retake its possession on the plank of the relevant condition embodied therewithin nor also on occurrence of any minimal default on the part of the loanee in liquidating the relevant loan liability towards it would foist in it a vested right to retake its possession from ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...17...
him unless he evidently committed with persevering .
obduracy a gross default in defraying the relevant loan installments to it also unless preceding thereto the financer had put the loanee/ complainant to notice, calling upon of him to defray the apposite loan installments, notice whereof remaining dis-affirmatively responded to by the rt complainant hence personifying his obduracy to honor his financial commitments towards it qua his defraying the relevant loan installments to it, whereupon alone legitimacy would stand foisted to the act of the financer to retake its possession on the plank of the relevant condition. However none of the aforesaid facets stand provenly sustained by the financer. In aftermath the mere making by the financer a resort to the relevant condition embodied in the hire purchase agreement, shorn off evidence displaying of the loanee being a recalcitrant besides an obdurate defaulter in liquidating his entire component of loan qua it, contrarily when for the reasons aforesaid the relevant postdated cheques held by the financer hold therewithin the ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...18...
component of loan advanced by the financer to the .
loanee, cheques whereof stand not proven to be dishonorued besides with the relevant hire purchase agreement standing un-rescinded whereupon also the of financer has hence yet left latitude to the loanee/complainant to liquidate his entire loan liability qua rt it whereat he would hence acquire absolute dominion qua the relevant asset(s) also makes amenable to deprecation its act of its hence prematurely besides at an inchoate stage retaking its possession from the loanee whereupon the loanee/complainant stood deprived to defray to it the relevant loan installments also when he on their liquidation qua the financer stood forestalled to acquire absolute dominion thereto. In aftermath, the effect of the aforesaid marked distinctvities in the factual matrix prevalent in the judgment supra vis-à-vis the factual matrix hereat, is of the relevant ratio decidendi propounded therein not warranting its application with aplomb vis-à-vis the facts hereat.
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9. Be that as it may the strong-arm tactics, as .
resorted to by the financer to retake forcible possession of the relevant asset(s) from the complainant on anvil of the relevant condition occurring in the relevant hire purchase of agreement whereupon it stood authorized to through its agents retake its possession from the loanee on purported rt occurrence of default on the part of the latter in liquidating the entire complement of the relevant loan vis-à-vis it, warrants theirs being stridently denounced. Besides needless to say when the mechanisms other than the one which stood resorted to by the financer were available to it to secure repayment of loan installments from the loanee/complainant qua the relevant asset(s) wherewith a hypothecation deed stands drawn inter-se it and the complainant, its short-circuiting the apt civil remedies encapsulated in the relevant statutes specifically in the CPC besides in the Hire Purchase Act, 1972, renders its relevant Act to stand ingrained with a penally inculpable mens rea dehors the embodiment therein of the relevant ::: Downloaded on - 15/04/2017 21:09:39 :::HCHP ...20...
condition also when the financer in planking its relevant act .
on the relevant condition embodied in the hire purchase agreement, stood, preceding its making a resort thereto enjoined to inform the police station concerned besides of may also could seek lawful restoration of its possession, by constituting an apposite application before the rt Court/Magistrate concerned exercising jurisdiction within the domain of the area wherewithin it stands registered.
Palpably it has omitted to resort to the aforesaid legal mechanisms. Consequently its retaking its possession by deploying strong-arm tactics merely in the garb of the afore-stated condition embodied in the relevant hire purchase agreement/hypothecation deed recorded inter-
se it and the loanee without preceding thereto its provenly concerting to seek liquidation of its loan liability from him prods this Court to discountenance its act, prominently when the indefeasible legal tenet for reasons aforesaid for validating its act stands un-satiated.
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10. In view of the above, the present petition stands .
dismissed. All pending applications stand disposed of accordingly.
Any observation made herein above shall not be of taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by rt any observation made herein above.
5th September, 2016 ( Sureshwar Thakur ),
(priti) Judge.
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