IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. .Misc. No.18514 of 1998 1 U.K.GOEL , SON OF LATE SRI JAGDISH PRASAD GOEL GENERAL MANAGER,HIRE PURCHASE OF M/S TELCO LIMITED,27TH FLOOR,WORLD TRADE CENTRE, BOMBAY-5. 2. P.S. GURU SON OF LATE SHREEDHAR GURU OFFICER, HIRE PURCHASE OF M/S TELCO LIMITED, PATNA. ADHARSHILA COMPLEX NEAR RESERVE BANK OF INDIA, GANDHI MAIDAN, PATNA, POLICE STATION,GANDHI MAIDAN,PATNA DISTRICT- PATNA……………………. …………….. PETITIONERS VERSUS 1. STATE OF BIHAR 2. BISHWANATH MANDAL SON OF LATE NARAYANMANDAL RESIDENT OF VILLAGE NIRMALI P.SPIPRA,DISTRICT- SUPAUL, COMPLAINANT… OPP. PARTIES WITH CR. MISC. NO.25954 OF 1998 1. 1. AJAY KUMAR SINHA, SON OF LATE SAHENDRA PRASAD,SALES OFFICER PHOOLTAS AUTOS LIMITED, N.H. 30, DIDARGANJ, P.S. DIDARGANJ,DISTRICT PATNA. 2. S.SWAMI JIVAN NANDA, SON OF LATE GOPALAN NAIR, EX-DEPUTY GENERAL MANAGER, , PHOOLTAS AUTOS LIMITED, LAYAK BHAWAN, EAST BORING CANAL ROAD, POLICE STATION- BUDHA COLONY, DISTT. PATNA……………………………PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. BISHWANATH MANDAL, SON OF LATE NARAYAN MANDAL, RESIDENT OF VILLAGE- NIRMALI, POLICE STATION- PIPARA, DIST. SUPAUL……………………………… RESPONDENTS. ----------------- 4 2-4-2010 Heard Mr. Rana Pratap Singh, Sr.Advocate in both the quashing applications. Also heard 2 learned counsel for the State Mr. Lala Kailash Bihari Prasad, Sr. Advocate and learned counsel appearing for opposite party no.2, the complainant. 2. Both these quashing applications under section 482 of the Code of Criminal Procedure have been heard together because they relate to same complaint case bearing no. 1023 © )/1997, Trial No. 1113/98 pending in the court of Judicial Magistrate, IstClass, Patna. The prayer made in both the applications is for quashing the order of cognizance dated 12-2-1998 whereunder order has been passed for issuance of process against the petitioners. A perusal of the complaint case contained in annexure-1 shows that altogether four persons have been made accused. Accused nos.1 and 2 are petitioners in Cr.Misc.No. 25954 of 1998 and the remaining two accused are petitioners in the 3 other case. According to the averments in the complaint petition as well as statement of the complainant on solemn affirmation a mini truck bearing registration no. BR-19-5042 was financed by M/s Telco Limited, Jamshedpur and pursuant to hire purchase, an agreement was executed between the complainant and M/S Telco Limited represented by the competent authority. The truck was given on hire to the complainant . On account of non-payment of instalments in time on 23-6-1997 the accused no.1 along with some other persons seized the said mini truck from a public road at Patna and repossessed the vehicle after preparing an inventory list which was handed over to the driver of the truck. Admittedly, the complainant contacted the local dealer M/s Phooltas Auto Limited for knowing the reasons as to why the vehicle was seized and he was 4 informed that the vehicle was seized because the instalment had become outstanding. Further grievance of the complainant as made in the complaint petition is that although he went ready with some bank draft and deposited the same in the office of Phooltas Auto Limited, ultimately the vehicle was not released in his favour but was sold. 3. The terms of hire purchase agreement are not in dispute. The agreement has been annexed as annexure-2 and Clauses (6) and (7) of the said agreement are to the effect that the complainant as a hirer held the vehicle only as a bailee of the owners without any proprietory right or interest, until he could exercise the right of purchase by payment of the whole amount due under the agreement and the owners make over to him all their rights, title and interest in the vehicle. According to Clause (7) 5 the owner can terminate, with or without any previous notice the agreement and forthwith retake and recover possession of the vehicle for various reasons including for arrears of hire payment or part thereof remaining unpaid for a period of seven days after the date fixed. 4. It is asserted in paragraph-8 of the quashing application ( Cr.Misc.No. 25954/98) that the complainant has also instituted a suit bearing no. 308 of 1997 which is pending before learned Sub-Judge- IV, Patna in relation to the same very vehicle and for a declaration that complainant is the absolute owner of the said vehicle. 5. From the submissions advanced on behalf of the parties, it is clear that facts of the case are not in dispute. The main issue is, whether on the allegations levelled by the complainant offence of breach of trust and 6 cheating are made out or not. According to learned counsel for the petitioner no criminal offence is made out in the facts of the case where the truck in question was under hire purchase agreement which contains a default clause and permits seizure of the truck by the financier in case of default in payment of instalments within the permissible time. In support of this plea learned counsel for the petitioner has placed reliance upon two judgments of the Supreme Court ;- (1) Sardar Trilok Singh Vrs. Satya Deo Tripathi, AIR 1979 SC 850 and (2) K.A. Mathai alias Babu and another Vrs. Kora Bibbikutti and another, (1996) 7 SCC 212 6. The facts in the aforesaid two cases were almost identical and in both the cases the Apex Court held that launching of criminal case in the given facts, by the purchaser against the 7 financier would be purely a dispute of civil nature and criminal proceedings amounted to an abuse of the process of the court and deserves to be quashed in the interest of justice. 7. Following the aforesaid principles of law settled by the Apex Court, both these applications are allowed. The criminal proceeding against the petitioners as noted above is hereby quashed. It is made clear that any observation made in this order shall not affect the claim of the complainant in the civil suit noticed above. ( Shiva Kirti Singh,J) Naresh