Jharkhand High Court
Manish Agarwal vs The State Of Jharkhand on 7 June, 2022
Author: Navneet Kumar
Bench: Navneet Kumar
1 Cr. M.P. No. 2751 of 2013
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 2751 of 2013
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Manish Agarwal ... ... Petitioner
Versus
1. The State of Jharkhand
2. Rajendra Lohar ... ... Opp. Parties
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Petitioner : Mr. Chandrajit Mukherjee, Advocate
For the State : Mrs. Lily Sahay, A.P.P.
For the Opp. P. No. 2 : Mr. Gautam Kumar, Advocate
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Order No. 07: Dated: 07th June, 2022
1. This Criminal Miscellaneous Petition is directed for quashing the entire criminal proceeding in connection with C/1 Case No. 55 of 2011 including the order dated 01.09.2012 passed by the learned Judicial Magistrate, 1st Class, at Chaibasa, whereby and where under the learned court below has taken the cognizance against the petitioner for an offence punishable under Section 417 of the Indian Penal Code.
2. The learned counsel for the petitioner, the learned counsel for the opposite party no.2 and the learned A.P.P. are present.
3. Heard the parties.
4. It is submitted on behalf of the petitioner that the complainant/ O.P. No. 2 had filed a Complaint Case C/ 1 Case No. 09 of 2010 stating therein that he was registered owner of the dumper bearing registration no. JH-06D/3031 which was purchased under the Hypothecation Agreement with Citicorp Finance India Ltd. and at the time of granting loan his signature was obtained on several documents and printed forms as he was a rustic person and thereafter loan was granted.
5. It has further been stated by the opposite party no. 2 in the said complaint petition that in the re-payment of loan he had 2 Cr. M.P. No. 2751 of 2013 already paid a sum of Rs. 25,000/- in the shape of installment. However, on 10.09.2009, the petitioner along with two unknown persons intercepted his dumper and demanded a sum of Rs. 50,000/- from the driver towards the installment and when he expressed his inability to give payment then they took the possession of the said vehicle along with the stepney, battery and jack.
6. It has been further alleged by the opposite party no.2 that when he came to know about the fact he went to the office of Citicorp Finance India Ltd. at Jamshedpur and in spite of assurance to look into the matter they did not return the vehicle. This complaint case was referred to the police under Section 156(3) of the Cr.P.C. on the basis of Mufassil P.S. Case No. 43 of 2010 which was instituted under Sections 379, 420, 385, 406, 34 of the India Penal Code. It has further been submitted on behalf of the petitioner that after investigation, the police found that Opposite Party No. 2 had availed a loan of Rs. 14,48,000/- for purchasing the vehicle after taking the finance from the office of Citicorp Finance India Ltd. at Jamshedpur and after making repayment one installment of Rs. 25,000/- he stopped making repayment of loan for which the company had served several demand notices to the opposite party no. 2 and his guarantor.
7. It has further been submitted that after sending the demand notices, the company issued an intimation to the opposite party no.2 that if the loan amount is not paid, then the company will take possession of the vehicle and when the loan amount was not paid, the company gave repossession intimation to the local Police Station vide letter dated 10.09.2009. It has further been pointed out that as per the Hypothecation Agreement, the finance company reserved their right to recover the vehicle. After following the due procedure of law, the vehicle was repossessed on 10.09.2009 and after 3 Cr. M.P. No. 2751 of 2013 repossession of the vehicle, the same was taken to the local Police Station and information to this effect was given to the concerned Police Station which was duly received by the said Police Station.
8. It has further been stated that after repossession of the vehicle, a notice was sent to the opposite party no. 2 giving him opportunity to repay the outstanding loan amount as on date which was calculated at a relevant point of time to a sum of Rs. 13,12,688.50, but, in spite of the notice, no action was taken by the opposite party no. 2 and the police on the basis of these facts found that no offence is made out and submitted the final report on 14.07.2010 absolving the petitioner from the charges levelled in the F.I.R. After submission of the final report, the opposite party no.2 filed a protest application on 18.08.2011 i.e. after expiry of more than one year of submission of final report submitted by the police after investigation.
9. It has been pointed out that learned court below did not accept the fact about the inordinate delay in filing the protest petition by the opposite party no. 2 and in the protest petition the opposite party no. 2 has simply reiterated the entire allegation without showing any cogent reason as to why the finance company would not recover the vehicle when admittedly outstanding dues of more than Rs. 13,00,000/- was there and the complainant/opposite party no. 2 had paid only a meagre value of Rs. 25,000/- and he did not challenge the right of the finance company in the proper court of the Civil law, who had given the vehicle on hire-purchase agreement to the opposite party no. 2 to recover the vehicle in case of default of payment of loan.
10. It has further been submitted on behalf of the petitioner that two witnesses who were examined on S.A., have stated and reiterated the same fact as stated in the original complaint petition which was referred for instituting the FIR in which the police after 4 Cr. M.P. No. 2751 of 2013 investigation had submitted the final report and no new fact came in the order taking cognizance for the offence punishable u/s 417 of IPC. Further, it is also submitted that the petitioner is the Manager of M/S Citicorp Finance India Limited and there is absolutely no allegation against this petitioner. The complainant/ O.P. no. 2 has only stated that the driver had informed him that his vehicle has been repossessed by the finance company and, therefore, the driver and khalashi had been examined as complainant witness nos. 2 & 3 and have also not stated a single word against this petitioner and due to non-application of judicial mind, the impugned order dated 01.09.2012 was passed by the learned court below under which the cognizance was taken against this petitioner for the offence punishable u/s 417 of IPC, therefore, this order is not lawful and fit to be set aside .
11. Learned counsel for the petitioner has relied upon the judgment as propounded by the Hon'ble Supreme Court in the Case of Anup Sarmah Versus Bhola Nath Sharma & Ors. reported in (2013) 1 SCC 400.
12. On the other hand, learned counsel for the opposite party no. 2 submitted that there is a categorical allegation for the offence punishable under section 417 of IPC particularly vide para 12 of the protest petition where it has been alleged that there was an illegal demand of Rs. 50,000/- from the driver of the vehicle Amra Sirka and, therefore, the offence is made out under section 417 of IPC as committed by the petitioner and the learned trial court has rightly taken the cognizance on the basis of the inquiry on protest petition and there is no illegality in the impugned order which deserves to be sustained.
13. Having heard the learned counsels for the parties and material available on record, it is admitted case of the complainant-opposite party no. 2 that this is a case of payment and repayment of the loan 5 Cr. M.P. No. 2751 of 2013 amount of the vehicle which was purchased by the O.P. No.2 from taking loan from Citicorp Finance India Ltd. It has also found that there was a default in repayment of loan by the complainant / O.P. No. 2 and the allegation that the repayment of loan was not made by the complainant and in default of payment of loan amount the company has forcibly taken away the vehicle by threatening.
14. It is also found that on the earlier occasion, the complaint case was instituted and the same was investigated and the final report was submitted. It appears from the impugned order dated 01.09.2012 there is nothing about the involvement of the petitioner in the commission of the offence of cheating when admittedly it is a case of purchase of the vehicle by taking loan under the hire- purchase agreement between the petitioner and O.P. No. 2.
15. The learned counsel appearing for the petitioner has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Anup Sarmah Versus Bhola Nath Sharma & Ors. reported in (2013) 1 SCC 400 wherein under the facts and circumstances of this case paras 4, 5 & 6 has been relied upon, which are as under:-
4. In Sardar Trilok Singh v. Satya Deo Tripathi AIR 1979 SC 850 this Court examined a similar case wherein the truck had been taken in possession by the financier in terms of hire-purchase agreement, as there was a default in making the payment of instalments. A criminal case had been lodged against the financier under Sections 395, 468, 465, 471, 120-B/34 IPC. The Court refused to exercise its power under Section 482 CrPC and did not quash the criminal proceedings on the ground that the financier had committed an offence. However, reversing the said judgment, this Court held that proceedings initiated were clearly an abuse of process of the court. The dispute involved was purely of civil nature, even if the allegations made by the complainant were substantially correct. Under the hire-
purchase agreement, the financier had made the payment of huge money and he was in fact the owner of the vehicle. The terms and conditions incorporated in the agreement gave rise in case of dispute only to civil rights and in such a case, the civil court must decide as to what was the meaning of those terms and conditions.
5. In K.A Mathai v. Kora Bibbikutty (1996) 7 SCC 212 this Court had taken a similar view holding that in case of default to make payment of instalments the financier had a right to resume possession even if the hire-purchase agreement does not contain a clause of resumption of possession for the reason that such a condition is to be read in the agreement. In such an eventuality, it cannot be held that 6 Cr. M.P. No. 2751 of 2013 the financier had committed an offence of theft and that too, with the requisite mens rea and requisite dishonest intention. The assertion of rights and obligations accruing to the parties under the hire-purchase agreement wipes out any dishonest pretence in that regard from which it cannot be inferred that the financier had resumed the possession of the vehicle with a guilty intention.
6. In Charanjit Singh Chadha v. Sudhir Mehra (2001) 7 SCC 417 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, SCC p. 422, para 8)
16. In view of the aforesaid proposition of law and taking into consideration the admitted fact that in the present case there was a hire-purchase agreement between the petitioner and the complainant/O.P. No. 2 for the purchase of the vehicle and no criminal offence is made out against the petitioner u/s 417 of IPC which is evident from the impugned order dated 01.09.2012 which is a non-speaking order and nothing has been found against this petitioner and in this view of matter the case of the petitioner is wholly covered with the aforesaid rulings of Hon'ble Supreme Court.
17. Further, from the impugned order dated 01.09.2012, it appears that the Court of learned Judicial Magistrate did not disclose any ingredients for the offence u/s 417 of IPC with respect to cheating and simply it has been observed by the learned court below that on 7 Cr. M.P. No. 2751 of 2013 perusal of the complaint petition, S.A. on oath and on enquiry evidence, a prima facie case for the offence u/s 417 of IPC is made out and no specific ingredients of constituting the offence of cheating against the petitioner has been indicated in the impugned order and as such the impugned order was passed due to non- application of judicial mind and which is patent error of law in the impugned order. There is a well settled proposition of law that in taking cognizance judicial mind must be applied by the concerned court with respect to the offence as to whether it has been committed or not or whether there is any overt act or allegation against the petitioner for involvement in the commission of the offence or not. The impugned order does not indicate that what are the ingredients of offence or any particular allegation against the petitioner for his involvement in the commission of the offence and, therefore, this order is not tenable in the eyes of law. From the impugned order, it is found that no dishonest or fraudulent inducement made by the petitioner to the complainant /Opposite Party No. 2 in order to deliver any property to any person. The order taking cognizance must be a speaking order consisting of prima facie commission of offence and involvement of the accused in the commission of the said offence as discussed elaborately with the provisions of law by this court in Amresh kumar Dhiraj and ors versus State of Jharkhand & Anr. reported in 2020 (1) JLJR 199.
18. In the backdrop, this Cr.M.P. is allowed and the impugned order dated 01.09.2012 and the subsequent proceedings are set- aside.
19. Accordingly, the I.A. No. 1770 of 2022 filed on behalf of the petitioner also gets disposed of.
(Navneet Kumar, J.) MM