Patna High Court - Orders
Sanjeev Agrawal @ Pappu Babbu & Ors vs State Of Bihar & Anr on 30 January, 2009
Author: Abhijit Sinha
Bench: Abhijit Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.48027 of 2006
1. Sanjeev Agrawal @ Pappu Babbu, Son of Late Sheo
Prasad Bhoj Agrawal ( Managing Director).
2. Shyam Gopal Upadhyay, son of Shri Nath Upadhyay,
Both staff of City Corporation Finance India Ltd,
Kolkatta-73, Toddi Manision, 5th Floor, P-15, Indian
Exchange Palace, Extension Calcutta-73
3. Shashi Bhushan Mishra, Son of Parasnath Mishra
4. Sunil Singh, Son of Durga Prasad Agrawal,
Both are Account Officer of M/S Sharachi
Securities Ltd. A.I.R.B. Chakrawarty Bistupur, Jamshedpur
( Block Kaushal Hotel, Bistupur), Jamshedpur
--------------------- Petitioners
Versus
1. The State of Bihar
2. Asha Shahi, Wife of Krishna Shahi, resident of Nayatola, Police
Station-Jamalpur, District-Munger
--------------------- Opp.Parties.
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For the petitioners : Mr. Abhay Kumar Sinha, Advocate
For the State : Mr.Jharkhandi Upadhaya, A.P.P.
For Opp.Party no.2 : None.
-----------
ORDER
This application is directed against the order dated
1.12.2005 passed by Sri Sanjay Kumar Sanjay, Judicial Magistrate,
First Class, Munger, in Complaint Case no.984( C) of 2005
whereunder cognizance under Sections 406 and 419 I.P.C. has been
taken against the two petitioners and two others. Petitioner no.1 is the
Managing Director of a Financial Company running in the name and
design of "City Finance India Ltd."(hereinafter referred to as " the
Financial Company") having its registered office at Mumbai and
branch offices at Kolkata and Jamshedpur. Petitioner no.2 is a staff of
the Kolkata office and the other two accused are the staff of the
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Jamshedpur office.
The allegation is that the complainant, Asha Shahi ,
impleaded herein as Opp.Party no.2, had purchased a truck bearing
registration no.BR-1G4-328, under a hire-purchase agreement with
the Financial Company's Branch office at Kolkata . The complainant
paid a sum of Rs.20, 817/- per month by way of monthly instalment
regularly for 32 months but defaulted in depositing the instalment
amount for the last three months as a result whereof the Financial
Company through its staff seized the said truck on 26.8.2005 and kept
it in its godown and a seizure memo was presented to her. It is further
alleged that again an agreement was entered into between the
Financial Company and the complainant wherein it was agreed that on
the complainant paying a sum of Rs.1, 01,000/- the Company would
issue a N.O.C. in her favour and the vehicle would be released later
on. The complainant's further case is that although she paid the
situplated amount by two bank drafts and the Mumbai office issued
the N.O.C. , the truck was not released in her favour and a further
demand was made of Rs.30,000/- by way of remuneration and office
expenses and as a matter of fact the accused from the Jamshedpur
office came on 7.11.2005 and received the said amount . The further
allegation is that even after receipt of the said amount, the said truck
was not released and the Jamshedpur office demanded a further sum
of Rs.40, 000/- for release of the truck.
The submission on behalf of the petitioners is that they are
innocent and have been falsely implicated in this case by way of
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revenge for having seized her truck. In this context it was submitted
that the petitioners are not liable for offences under Section 406 I.P.C.
as the Finance Company had seized the truck on 26.8.2005 as there
had been default in payment of monthly instalments for three months
preceding the seizure of the truck. It was pointed out that the Finance
Company has an authorized agent on commission basis at Patna, in the
name and design of Imperial Auto Finance and the complainant had
purchased the said truck on hire-purchase agreement through the said
commission agent. In this context it is said that one Guriya Devi, wife
of Dhiraj Sah and a relative of the complainant and her husband,
Krishna Shahi, had made a joint agreement with the company through
its Patna agent to purchase another truck on hire-purchase basis
through them and after the agreement a sum of Rs.85,000/- was jointly
deposited as down payment towards the cost of an old truck.
However, after some time both the applicants rescinded their decision
to purchase the old truck. Subsequently, one of the applicants, Krishna
Shahi, the husband of the complainant requested the Financier to
adjust Rs.62, 451/-, the amount of default by the complainant towards
payment of instalment for her truck and accordingly the Financier
adjusted the said amount in the default account of the complainant
with the consent of Dhiraj Sah on 25.9.2004 and a receipt no.586 was
given in the name of the complainant and the receipt was also signed
by Dhiraj. The balance money of Rs.21, 732/- after adjusting a sum of
Rs.817/- towards travelling expenses was returned through cheque
drawn on U.T.I. Bank, Patna. However, the transaction not
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withstanding Dhiraj Sah lodged Jamalpur P.S. Case no.56 of 2005
against the Financier of Patna Branch, Asha Shahi and Krishna Shahi
alleging that all the accused had cheated his wife's money which she
had deposited as down payment for purchasing another vehicle.
In pointing out the fraud played by the complainant, it was
submitted, that the complainant next contacted the Branch office at
Jamshedpur informing them of having cleared all her dues with the
Patna office and requested them to inform her the amount that was
finally due which was Rs.1, 08,055/- and was settled at Rs.1, 01,000/-
which was deposited by the complainant through two drafts and
showing her account to have been cleared she succeeded in getting the
N.O.C. from Mumbai Office. However, the cat was let out of the bag
when the Patna office revealed the fraud played by the complainant,
since the alleged adjustment of Rs.62, 451/- against three months
default had not been cleared in view of the court case by Dhiraj. In
this view of the matter, the vehicle had rightly not been released in
favour of the complainant. It was also submitted that when the truck
had been financed by the Patna Branch there was no point in the
complainant to contact the Jamshedpur Branch for her final account.
The allegation of demand and acceptance of a further sum of Rs.30,
000/- and again a demand for Rs.40, 000/- being made have been
denied and the complainant has been put to strict proof thereof.
Finally, it was submitted that under hire purchase
agreement, the dispute arising out of the same is purely civil in nature
and criminal prosecution cannot be launched therefor. Reliance in
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support of the submissions was placed on the decision of Charanjit
Singh Chadda Vrs.Sudhir Mehra (2001 Cr.L.J. 4255).
Although , the complainant -Opp.Party no.2 put in an
appearance in this case by filing a Vakalatnama yet at the crucial
period of the hearing of this application both the complainant and her
accredited counsel were conspicuous by their absence and as such,
there is no rebuttal or opposition to the submissions advanced on her
behalf .Even a show cause or counter affidavit has not been filed on
her behalf.
It appears that this case was earlier heard by another Bench
which had directed the petitioners to file a statement of accounts and
according to the statement filed , it is apparent that the amount
outstanding against the complainant is Rs.62451/-.
It is thus clear that there is a dispute about payments for
which no criminal offence is made out on the facts and circumstances
of the case. Such disputes are amenable for settlement by way of
raising a civil dispute.
In the result the application is allowed and the criminal
prosecution arising out of complaint Case no.984( C) of 2005 , so far
as the petitioners are concerned is hereby quashed.
( Abhijit Sinha, J )
Patna High Court ,Patna
Dated : the 30th January,2009
Nawal Kishore Singh/ A.F.R. -6-