mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO. 935 OF 2009 HEMANT SHYAMNARAYAN SINGH .. PETITIONER Vs. THE STATE OF MAHARASHTRA & ORS. RESPONDENTS Mr. Milan Desai i/b S. S. Vichare for the petitioner Ms. P. H. Kantharia, APP for the State CORAM: SMT. RANJANA DESAI & R. G. KETKAR, JJ. DATED: 18/06/2009 P.C. The petitioner is proprietor of M/s. Trimurti Transtrade. He carries on transport business. In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed that a direction be issued to the officer of the Trombay Police Station to register FIR against M/s. Magma Fincorp Ltd., (“Magma Fincorp” for short) and its officers and its 2 unknown accomplices for the offences punishable under Sections 324, 342, 386, 392, 506(ii) r/w 120 (b) r/w 34 of the Indian Penal Code and a further direction be given to the Trombay Police Station to carry out fair and unbiased investigation. 2. It is necessary to begin with the facts. The petitioner purchased Tata make heavy transport vehicle in his firm’s name (“the said vehicle” for short). For purchase of the said vehicle he obtained loan from The Chembur Nagarik Sahakari Bank Ltd. Learned counsel for the petitioner on instructions from the petitioner, who is present in the court informed us that the petitioner has been regularly paying the loan installments. 3. According to the petitioner on 28/3/09 one Anwar Khan, the driver employed by him was driving the said vehicle for official purpose to Kalamboli. When he reached somewhere near Vashi naka two persons travelling on a motor cycle intercepted the said vehicle and forced Shri Anwar Khan to step out of the said vehicle. After Anwar Khan stepped out of the said vehicle, the said persons started mercilessly assaulting him. According to the petitioner Anwar Khan requested them not to beat him and let him know why they were attacking him. The said persons told him that they were recovery agents employed by Magma Fincorp. They further told him that they want to take possession of the said vehicle as one Baljinder Singh Dhillon had defaulted in paying the loan amount to Magma Fincorp. Anwar Khan told them that the said vehicle did not belong to Baljinder Singh Dhillon. He told them that the said vehicle belonged to the petitioner and that they can verify this fact from the R.C. Book. He requested them to take him to the petitioner and sort out the matter. However, instead of doing so, the said persons once again started assaulting Anwar Khan. They threatened him and told him that they would kill him if he tried to act smart. They asked Anwar Khan to sign on a letterhead of Magma Fincorp which was titled as Inventory Sheet. When Anwar Khan told them that he cannot sign the same, the said persons caught his neck and started pressing it and threatened him that, if he does not sign the paper they will throttle him to death. They forced Anwar Khan to sign the paper and took charge of the said vehicle. Anwar Khan requested them to at least allow him to take the sum of Rs.5,000/- which was kept in the dash board of the said vehicle. The said persons threatened him and removed the amount of Rs.5,000/- and took forcible possession of the said vehicle. 4. Thereafter Anwar Khan contacted the petitioner and informed him about the episode. The petitioner rushed to the Trombay Police Station to lodge complaint against the said unknown persons of Magma Fincorp. According to the petitioner at that time he produced all the requisite papers. However, officers of the Trombay Police Station refused to take cognizance of his complaint. The petitioner’s case is that he requested them to send his driver for medical examination and treatment and also requested them to take note of the injury marks which were clearly visible on the body of the driver. However, the officers of the Trombay Police Station refused to do so. They threatened him and told him to leave the police station or else they would arrest him and his driver. According to the petitioner, he tried to persuade the officers of the Trombay Police Station to see the Inventory Sheet which clearly mentioned that the said vehicle was taken away by Magma Fincorp. However, the duty officer instead of seeing the Inventory Sheet retorted that persons like the petitioner are menace to the society because they cheat banks and financial corporations. 5. The petitioner thereafter tried to meet the Senior Inspector of Trombay Police Station but he had no time to see him. Thereafter the petitioner visited Trombay Police Station on 29/3/09. He was once again driven out. Finally the petitioner managed to meet Senior Inspector of Trombay Police Station. He sent him to API Pawar. The petitioner met API Pawar and gave him a written complaint dated 30/3/09. However, API Pawar did not register the complaint. Thus having failed to persuade the police officers to take cognizance of his complaint, the petitioner filed the present petition. 6. This petition was moved before us on 7/5/09. The petitioner was present in the court. We directed him to visit Trombay Police Station between 1 p.m. and 6 p.m. on 8/5/09. We directed learned APP Ms. Kantharia to contact Senior Inspector of Trombay Police Station and ask him to look into the petitioner’s complaint and take action in accordance with law, if found necessary. Ms. Kantharia told us that she informed PSI Shri Dongare of Tombay Police Station to look into the petitioner’s complaint. We are informed by learned counsel for the petitioner on instructions from the petitioner, who is present in the court that on 8/5/09 the petitioner had gone to the Trombay Police Station. At the Trombay Police Station he was made to wait from 1 p.m. to 6 p.m. According to the petitioner at that time at the police station P.I. Ambujay and PSI K.D. Dongare were present. They refused to look into the petitioner’s complaint. On 8/5/09 a letter was addressed by the petitioner to PSI Trombay Police Station stating the above facts. Its copy is taken on record and marked “X”. According to the petitioner the Trombay Police Station refused to acknowledge its receipt. We are surprised how at no point of time Senior Inspector of Police of Trombay Police Station thought it necessary to find out whether any steps were taken pursuant to our order dated 7/5/09 in which a specific direction was given to him. 7. We were informed that some application in connection with the said vehicle is being looked into by the Deonar Police Station. We, therefore, directed the concerned police officer of Deonar Police Station to remain present in our court. Accordingly PSI R. G. Solhapure of the Deonar Police Station is present in the court today. PI Ambujay then Incharge of Trombay Police Station, K. D. Dongre, PSI, and P.V. Desai, PSI attached to Trombay Police Station are also present in the court. The petitioner has tendered in the court a copy of the history sheet dated 28/3/09 of Satyam Hospital, Ghatkopar indicating the injuries received by his driver Anwar Khan. According to the petitioner he got his driver examined at Satyam Hospital on 28/3/09 because the police refused to note the injuries suffered by him and send him for medical examination. The said history sheet is marked “Y”. 8. Shri R. G. Solhapure, PSI of Deonar Police Station, has shown us letter dated 9th April, 2009 addressed by Magma Fincorp to Senior Inspector Deonar Police Station in which it is stated that in fact Magma Fincorp had entered into Hire Purchase Agreement with Mr. Baljinder Singh Dhillon and had financed one vehicle of his. It is further stated that due to typographical error the vehicle bearing registration No. HR-38-K-9455 was entered into record and it is shown that Mr. Baljinder Singh Dhillon is the owner of the said registered vehicle. The letter further goes on to say that Mr. Baljinder Singh Dhillon has defaulted in making payments to Magma Fincorp and, therefore, as per the terms of the agreement Magma Fincorp have a right to take possession of the vehicle of Baljinder Singh Dhillon. It is further stated in the letter that on 28/3/09 the vehicle was repossessed by Magma Fincorp from Hemant Singh. However, after verification of chassis number and engine number Magma Fincorp came to know that the said vehicle has not been financed by Magma Fincorp and Hemant Singh is the owner of the said vehicle. According to Magma Fincorp they informed Mr. Hemant Singh that by mistake and due to human error they had taken the said vehicle in their possession. The letter further states that Magma Fincorp is ready to handover the said vehicle to Mr. Hemant Singh at any time as per his instructions. 9. Mr. Solhapure, PSI of Deonar Police Station has informed the court that after this letter was received, the officer from Magma Fincorp was called to the police station. The petitioner also attended the Deonar Police Station once. Magma Fincorp even offered to pay compensation to the petitioner, however, the petitioner refused to take the compensation. The petitioner has admitted that he visited Deonar Police Station once. He has, however, denied that any compensation was ever offered to him. 10. We have heard learned counsel for the petitioner at some length. He submitted that though Trombay Police Station was approached by the petitioner immediately after the incident and also as per our direction on 8/5/09, Trombay Police Station refused to take cognizance of the complaint. He submitted that grave injustice is done to the petitioner by the highhanded behaviour of the agents of Magma Fincorp when admittedly Magma Fincorp had not financed the petitioner’s vehicle and he is not a defaulter. The vehicle was financed by The Chembur Nagrik Sahakari Bank Ltd. A certificate issued by the said bank dated 17/6/09 is tendered in the court by learned counsel for the petitioner which states that The Chembur Nagrik Sahakari Bank Ltd., has never issued any seizure notice for the said vehicle. This certificate is taken on record and marked “Z”. Learned Counsel submitted that Trombay Police Station failed to register the petitioner’s complaint and take action as per law against Magma Fincorp and its recovery agents. 11. We find substance in the submission of learned counsel for the petitioner. The Trombay Police Station should have attended to the petitioner’s complaint when he first visited it. In any case when the petitioner attended the Trombay Police Station as per our direction on 8/5/09, the officers of the Trombay Police Station should have looked into his grievance. In defiance to our order instead they made him wait for six hours and sent him away without noting his complaint. This allegation is denied by Ms. Kantharia. But prima facie looking to the manner in which the Trombay Police have handled the matter, we are inclined to believe the petitioner. 12. Had the Trombay Police Station taken note of the petitioner’s complaint, when he first visited it and called the officers from Magma Fincorp and recorded their statements justice would have been done. Magma Fincorp would have at that time informed Trombay Police Station that the petitioner was not a defaulter and that they had wrongly repossessed the said vehicle. The wrongdoers ought to have been dealt with in accordance with law. Because of inaction of Trombay Police Station the petitioner had no option but to rush to this court. 13. Admittedly the vehicle is wrongly repossessed. The petitioner must get back the vehicle but necessary inquiry must be made . Whether the alleged recovery agents exceeded their duties, whether they used force and attacked Anwar Khan, the driver of the petitioner, which resulted in injuries being caused to Anwar Khan, needs to be inquired into. Trombay Police Station ought to have got Anwar Khan medically examined. When we asked this question to learned APP, she informed us that on 30/3/09 the petitioner had merely given application to the inward section and it was not received by the concerned police officer. This explanation surprises us. Any application received in the inward section must be scrutinized by the officers. Complaints made at the police station cannot lie in inward section unattended. They must be looked into by some officers. We are informed that after it was received it was marked to the concerned police officer after two days. That makes the matter still worse. Even after two days no action was taken and the petitioner had to come to this court. No citizen should be treated by the police in this manner. The petitioner is not a defaulter. His vehicle was wrongly repossessed in a barbaric manner. His driver was attacked. The petitioner’s complaint was not noted. His driver was not medically examined. The petitioner has told us that he was humiliated at the Trombay Police Station. This prima facie appears to us to be a gross case of injustice. Deonar Police Station was busy recording statement of Magma Fincorp. Magma Fincorp perhaps wanted to settle the matter to avoid consequences of its highhanded action. But the first priority of the police should have been to find out how recovery agents can repossess a vehicle in this manner by humiliating and attacking a person who is unconcerned with Magma Fincorp and its alleged outstanding loan. 14. We record our total dissatisfaction about the manner in which the police have dealt with the petitioner. It is high time that Trombay Police Station takes measures to improve its working. The petitioner wants his complaint to be investigated. Learned counsel for the petitioner states and, in our opinion, with justification that some independent agency may be asked to look into the complaint. 15. In the circumstances, we direct that this complaint be investigated by Chembur Police Station instead of Deonar Police Station or Trombay Police Station. The petitioner shall cooperate with the police. 16. Petition is disposed of. JUDGE JUDGE