Gauhati High Court
Rajesh Kumar Himatsingka vs Sachindra Sarmah on 10 December, 2003
Equivalent citations: (2004)2GLR316
Author: Amitava Roy
Bench: Amitava Roy
JUDGMENT Amitava Roy, J.
1. This petition under Section 482 of the Code of Criminal Procedure, 1978 read with Article 227 of the Constitution of India lays a challenge to the maintainability of the criminal proceeding being Complaint Case No. 2663c/2001 registered Under Section 406/352 IPC pending in the Court of the learned Judicial Magistrate, 1st Class, Karmrup, Guwahati. The petitioner being aggrieved by the initiation and continuance the above proceedings prays for quashing thereof.
2. I have heard Mr. J. Roy, learned counsel for the petitioner and Mr. B.M. Choudhury, learned counsel for the Respondent.
3. It would be necessary to have a stock of the material facts first. The petitioner claims to be a partner of M/s. Himatsingka Auto Enterprises which is a dealer of TATA Finance and Telco. The petitioner's firm deals in hire purchase and leasing business of automobiles etc. A, complaint was filed by the respondent in the court of the learned Chief Judicial Magistrate, Kamrup, Guwahati against the petitioner alleging that the latter had committed offence Under Section 420/406/323/384/506 IPC. The facts narrated in the complaint in short' are that the wife of the complainant-O.P. on a hire purchase arrangement purchased the Chassis and the Engine of the Vehicle involved from the petitioner's firm on the said arrangement by paying a sum of Rs. 1,46,000. Thereafter she got the body of the vehicle (Bus) constructed at cost of Rs. 3,50,000 and the vehicle after its registration was put on the road. In terms of the hire purchase agreement, she started making payment of the monthly instalments. Soon thereafter, the vehicle developed trouble for which the petitioner brought it to the notice of the dealer i.e. the petitioner's firm. The vehicle thereafter was brought to the workshop of the petitioner's firm whereupon it was represented by it that the Engine of the vehicle has been replaced and that the same would provide trouble free services. It was alleged in the complaint that the condition of the vehicle did not improve even thereafter for which it gradually became difficult to pay the monthly instalments. Eventually, in the 2nd week of September, 2001 when the vehicle became immobile, on the advice of the petitioner, O. P. brought it to the workshop of the petitioner's firm and deposited the same there. The petitioner thereafter called the opposite party for settlement of the dues relating to the vehicle assuring that due arrangements would be made to sell the vehicle and adjust the dues against the sale price. On two different dates thereafter the opposite party visited the office of the petitioner but without any fruitful result.
On 19.10.2001 on his visit to the office of the petitioner the O.P. was intimated that the value of the vehicles would be Rs. 5 (five) lakh and as an amount of Rs. 4,50,000 was due towards the monthly instalments, the O.P. was offered Rs. 50,000. It is the alleged that when the O.P. declined to accept the amount and wanted to leave the Office of the petitioner, the letter slapped him and by force obtained his signature on blank papers. The petitioner also threatened the O.P. It is the case of the O.P. that he had to sign the blank papers and expressed his apprehension that the same would be converted into a document for causing wrongful loss to him. In the complaint the O.P. prayed for an appropriate order to make the petitioner stand trial for the offences committed and also sought a search warrant to seize the vehicle for being produced before the Court.
4. The learned trial court after recording the initial deposition of the O. P. and the evidence of one mere witness took cognizance of the offence Under Section 406/352 IPC and issued process against the petitioner-accused. A search warrant was also issued for the vehicle. It was thereafter that the petitioner approached this court and by order dated 4.1.2002 this court while admitting the petition, directed in the interim that further proceedings in the complaint case as well as the order dated 29.11. 2001 would remain stayed.
5. Mr. Roy, learned counsel for the petitioner with reference to the contents of the complaint petition has forcefully argued that the dispute between the parties is out and out civil in nature and therefore the impugned proceeding is ex facie, nor maintainable in law. According to him, admittedly the wife of the O. P. had taken the vehicle in question on hire purchase agreement with the petitioner's firm and having committed default in paying the monthly instalments, the vehicle in terms of the said agreement was rightly deposited with the firm. Therefore the allegation of assault, intimidation and taking of signature by force even accepted in their entirety do not make out the ingredients of the offence of which cognizance has been taken and therefore continuance of the criminal proceeding would be an abuse of the process of court. Mr. Roy strongly argued to the effect that having regard to the factual background of the case, the allegations of assault intimidation etc. are inherently improbable and have been levelled only to wrongfully wrest away the vehicle from the petitioner's firm under the cover of a criminal proceeding..
He therefore argued that the impugned, proceeding has been launched as a weapon of oppression against the petitioner without any merit whatsoever and therefore the interest of justice demands that it be quashed at this stage. He contended that if criminal proceedings of this nature are not inter directed it would embolden a hirers in default to start such prosecution to avoid payment of the instalments and at the same time enjoy the use of the vehicle involved. On that consideration as well Mr. Roy has argued, that the impugned proceeding is liable to be adjudged is not maintainable in law,. In support of his Submissions, Mr. Roy has placed reliance on the following authorities :-
AIR 1979 SC 850 Trilok Singh and Ors., Appellants v. Satya Deo Tripathi, Respondent. (2001) 7 SCC 417 Charanjit Singh Chadha and Ors. Appellants v. Sudhir Mehra, Respondent.
1999 (3) GLR 149 Nupuf Saha and ors Petitioners v. Gobinda Chandra Paul O.P.
6. In reply Mr. Choudhury has submitted with equal force that the complaint petition read along with the initial, deposition of the O.R and his witness candidly disclose commission of offences of assault intimidation and extortion and therefore the learned trial court was perfectly justified in talking cognizance and issuing process against the petitioner. He submitted that at this stage of the criminal proceeding this court, while entertaining a prayer for quashing thereof would not sift the materials already on record as required at the time of trial and if, the complaint petition and the evidence of the complainant and his witness prima facie make out the offences alleged this court would lay its hands of and refrain from exercising its jurisdiction under Section 482 of the Code of Criminal Procedure. He submitted that in the facts and circumstances of the case and considering the materials on record, the satisfaction of the learned court below before taking the cognizance of the offences cannot be faulted with and therefore the petition being without any merit is liable to be dismissed. He urged that the decisions relied upon by the learned counsel for the petitioner are out of place having regard to the factual background of the present controversy and therefore are of no relevance.
7. The scope and reach of the power of this court under Section 482 of the Cr.P.C. in entertaining a prayer for quashing a criminal proceeding is well delineated. The fundamental test is to ascertain whether taking the allegations in the complaint to be true, without adding or subtracting anything at the stage of challenge to the maintainability of the proceeding, a prima facie case for trial, had been made out. It is only when on such examination, the answer has to be in the negative that an interference in exercise of power Under Section 482 Cr.PC for quashing the said proceeding is called for. The High Court at this juncture is not called upon to undertake an exercise to enquire into the truth or otherwise of the allegations made. The limited scrutiny is for being satisfied whether the allegations made disclose a cognizable offence(s).
8. The Apex court has repeatedly sounded a note caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. In emphatic words it has been laid down time out of number that the court would not be justified in embarking as an enquiry as to the reliability, genuineness or otherwise of the allegations made in the First Information Report or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice. The power can be exercised only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court and not otherwise it is not open for the court in exercise of such powers to scrutinise the allegations by sifting the evidence or appreciate the same and come to the conclusion that no prima facie case is made out or whether the allegations are likely to be up held in the trial. The proposition of law as noticed herein above, has been laid down in not uncertain terms by the Apex Court in its decisions rendered in :-
(1986) 3 SCC 67 J.P. Sharma, Appellant v. Vinod Kumar Jain and Ors., Respondents.
1992 Supp (1) SCC 335 State of Haryana and Ors., Appellants v. Bhajanlal and Ors., Resp.
(1995) 6 SCC 194 Rupan Deol Bajaj (Mrs and Anr., Appl. v. Kanwar Pal Singh Gill and Anr., Respondents.
(1996) 5 SCC 591 Central Bureau of Investigation SPE, SIU (X), New Delhi, Appellant v. Duncansagro Industries Ltd. Calcutta, Respondent (1996) 8 SCC 164 State of Bihar, Appellant v. Rajendra Agarwalla, Respondent (2000) 8 SCC 115 Mahavir Prashad Gupta and Anr. Petitioners v. State of National Capital Territory of Delhi and Ors. Respondents
9. Reverting to the facts of the present case it is empty clear from the complaint petition that the allegations against the petitioner is that when the Opposite Party refused to accept Rs. 50,000 offered as the balance price of the vehicle after adjusting the outstanding dues the petitioner gave a slap on his face and also by show of force obtained his (O.P.) signature on blank papers. The petitioner also threatened the O.P. The above allegation have been supported by the O.P. complainant and his witness on oath. In view of the state of materials on record it is not possible to conclude that the complainant petition together with the deposition of the O.P. complainant and his witness do not make out any cognizance A offence warranting quashing of the proceedings. By applying the legal principle enumerated by catena of decisions of the Apex Court, I cannot persuade myself to hold that continuance of the proceedings would result in abuse of the process of court.
10. The authorities relied upon by Mr. Roy are structured on facts which are not akin to those in the case in hand. In all those cases the vehicle which was the subject matter of the hire purchase agreement had been retrieved by the accused financierer following the default on the part of the hirer to make payment of monthly instalments. The hire purchase agreement authorities financier in such an eventuality to repossess the vehicle and it was in that background that it was held that no offence was made out against the financier in taking over the vehicle from the possession of the hirer. What was ruled in essence therein was that if the hire purchase agreement permitted the financier to repossess the vehicle in case of default by the hirer, the latter could not have any grievance alleging that the financier had committed offence, theft, cheating or criminal breach of trust as the case may be. The offending act in those cases had a live nexus with the hire purchase agreement and the stipulation contained therein and the decisions were rendered in the background of the said facts.
11. The setting of facts here is different. The vehicle following default on the part of the hirer was restored to the petitioner's firm. The incident that took place thereafter as per the version of the opposite party complainant though relatable to the payment of outstanding dues by sale of the vehicle the offending act cannot be logically traced to the agreement between the firm and the wife of the opposite party. As alleged it is the opposite party who was assaulted and intimidated and forced to sign blank papers by the petitioner who claims to be a partner of the firm. The acts complained of have no perceptible nexus with the hire purchase agreement to conclude that the dispute is of civil nature and therefore a criminal proceeding for such acts is not maintainable. The decisions cited by Mr. Roy are therefore of no avail to the petition.
12. It is not understandable as to how pendency of criminal proceeding would in any way come in the way of pursuing the available legal remedies by the firm to realise the outstanding dues under the hire purchase agreement. The contention that if a criminal proceeding of present nature involving a hire purchase agreement is allowed to continue, it would pave the way or the defaulting hirer to avoid payment with impunity and enjoy the vehicle at the same time is not only hypothetical but also too far fetched. If a hirer is in default it would be always open for the financier and other parties to the hire purchase agreement to resort to the courses open for relief under the law, A criminal proceeding initiated by a hirer alleging offending acts against one or more parties to the agreement cannot have the potential of stifling any other legal proceeding for reliefs available to the financier or any other party to the agreement. It is not to say that even if the allegations of the offending acts do not make out an offence the cox responding criminal prosecution cannot be quashed, but if it is not so, it cannot be legitimately pleaded that it would act as a bar or an obstacle to pursue alternative legal remedies for realisation of the outstanding dues of the hirer, I am, therefore, not inclined to concur with the learned counsel for the petitioner on his submissions made questioning the maintainability of the impugned criminal proceedings.
13. Before parting, however, it is to be observed that a fresh look into the complaint, petition and the evidence of record is called for, for the purpose of re-framing the charge. The allegations made in the complaint as well as the deposition on record, I am of the considered view, prima facie make out an offence punishable Under Section 352 and 384 of the IPC. The materials on record, however, do not disclose the ingredients of the offence of criminal breach of trust. It would thus be in fitness of things that the learned court below would after hearing the parties take a fresh decision in this regard and pass further orders as would be deemed necessary. As a result, the cognizance of offence under Section 406 IPC against the petitioner cannot be sustained. However, having regard to the materials on record, I am not inclined to quash the proceedings. The matter is remanded to the learned trial court for proceeding in accordance with law. Needless to say, the learned trial court, while deciding on the question of charge would proceed uninfluenced by the above observations of this court.
The petition is disposed of accordingly.