IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.41668 of 2007 1. RAKESH AGRAWAL @ RAKESH KUMAR, S/O SHRI R.N. AGRAWAL, RESIDENT OF 19, R.N. MUKHERJEE ROAD, KOLKATA 700 001. 2. ARUN KUMAR SINGH @ ARUN SINGH, S/O SHRI BINDA SINGH, RESIDENT OF 209, ADHARSHILA COMPLEX, SOUTH GANDHI MAIDAN, P.S. GANDHI MAIDAN, DISTRICT- PATNA. …..Petitioners. Versus 1. THE STATE OF BIHAR 2. ABDUL RAJJAQUE, S/O MD. MOHIUDDIN, RESIDENT OF NARAYANPUR, P.S. MANASHI, DISTRICT KATIHAR. …..Opposite Parties. For the Petitioner : 1. Mr. S.D. Sanjay (Adv.) : 2. Mr. Gopal Prasad Gupta (Adv.) For the Complainant : 1. Mr. P.N. Jaipuriyar (Adv.) : 2. Mr. Anshuman Jaipuriyar (Adv.) For the State : Mr. Nirbhay Kr. Singh (APP) ----------- 04/ 16.04.2010 Heard learned Counsel for the petitioners, learned Counsel for the State and learned Counsel appearing on behalf of O.P. No. 2. The application has been filed for quashing of the order taking cognizance dated 20.02.2007 passed by the learned Judicial Magistrate, 1st Class, Katihar in Complaint Case No. CA-2394/2006 under Section 379 of the Indian Penal Code and the petitioner was summoned to face the trial. The complaint was filed by O.P. No. 2 before the Chief Judicial Magistrate, Katihar alleging therein that the accused persons 1 and 2 handed over Bolero DI Turbo Jeep costing Rs. 4,41,098/- bearing Registration No. BR-39B-3659 to the complainant on monthly installment of 2 Rs. 12,600/-. The complainant before receiving the vehicle deposited Rs. 2,06,000/- for which a receipt of Rs. 1,75,000/- was granted. After two months delivery of the vehicle, there was major defect in the said jeep and the complainant requested the Accused No. 1 and 2 to change the said jeep, but the Accused No. 2, after consultation with the Accused No. 1, directed to complainant to deposit Rs. 1,15,000/- and it was assured that the jeep would be changed. The amount was deposited in February, 2006 at the office of Accused No. 1 but in spite of payment of deposit the jeep was not changed nor any receipt showing the deposit of Rs. 1,15,000/- was shown. On 18.10.2006, the Accused No. 1 & 2 along with 3-4 unknown persons came to the house of the complainant in his absence and forcibly taken away the jeep. After taking cognizance the case was transferred under Section 192 of the Code of Criminal Procedure, 1973 and cognizance was taken. Learned Counsel for the petitioner has submitted that the allegations does not constitute the offence under Section 379 of the Indian Penal Code. So, the court has erred in 3 taking cognizance 379 of the Indian Penal Code. Reliance has been placed in the case of Rakesh Agrawal & Ors. Vs. the State of Bihar since reported in 2007(1) PLJR 313 and it has been submitted that under similar circumstances criminal prosecution based on allegation of re- possession of property under hire-purchase agreement was quashed. After hearing the learned Counsel for the petitioner and O.P. No. 2, it appears that the facts of the case is similar to the facts which was more or less involved in the reported which has been discussed above. The case relates to a hire-purchase agreement and in the facts and circumstances it cannot be said that the petitioners have committed any theft. Considering the facts and circumstances of the case, I am of the view that the present case is covered squarely from the decision reported (Supra). Accordingly, the order is quashed and the petitioner’s revision application is allowed. kksinha/ (Shyam Kishore Sharma, J.)