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. ----------- For the petitioners : Mr. Abhay Kumar Sinha, Advocate For the State : Mr.Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : None. ----------- O R D E R 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 - 2 - 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 - 3 - 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 - 4 - 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 - 5 - 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 -