IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.927 of 2005 KAUSHIK HIMMATSINGKA Versus STATE OF BIHAR ----------- 23 20.04.2009 Heard learned counsel for the petitioner. The petitioner is aggrieved by order dated 9.8.2004 passed by Judicial Magistrate, Ist Class, Samastipur in Complaint Case No. 1274 of 2003 (T.R. No. 615 of 2005) by which he has rejected the prayer of the petitioner for exemption from personal appearance in terms of Section 205 of the Cr.P.C. The learned Magistrate has rejected the application on the ground that warrant has been issued against the petitioner and there is no sufficient ground for granting exception :- The complainant Manoj Kumar Singh stated that his sister-in- law, one Usha Kumari took delivery of a truck on hire purchase basis from accused company in 1996. The vehicle bore the registration no. BR-IG 2012. The complainant alleged that against an outstanding due amount of Rs.2,25,000/-, a sum of Rs.1,00000/- was paid by draft and further sum of Rs.1,00000/- was to be paid in three months time. However, the accused persons repossessed the truck for five months so that they could ply and liquidate the outstanding amount of Rs.1,25,000/-. The accused persons refused to return the truck, even after expiry of five months on the ground that complainant should first withdraw the earlier complaint bearing Complaint Case No. 376 of 1998 filed by him levelling similar allegations. An application filed by accused in this court for quashing the prosecution case was dismissed. - 2 - The Magistrate after examining complainant on S.A. and witnesses in enquiry under Section 202 of the Cr.P.C. took cognizance of offence under Section 406 and 420 of the Indian Penal Code on 9.08.2004, which is impugned. The petitioner submits that earlier also a vehicle was financed to the complainant’s sister-in-law and it was repossessed, as the complainant and his sister-in-law miserably defaulted in payment of instalments. The complainant filed Complaint Case No. 376 of 1998 as a retaliation. It is true that the company moved this court for quashing of the proceeding, which was dismissed. However, the company moved the Hon’ble Supreme Court in S.L.P. (Criminal) No. 2390 of 2003 and after notice to the complainant, leave was granted on 3.12.2004 and appeal was admitted and appellant was ordered not to be arrested during pendency of the appeal. The complainant admits that petitioner is one of the Directors of the company which financed the vehicle. The sister-in-law of the complainant defaulted in payment of instalment as stipulated in the agreement as such the vehicle was repossessed. Subsequently, the vehicle was released in favour of sister of the complainant on assurance that she would pay the due instalment. However, the complainant’s sister-in-law again defaulted and consequently the vehicle was repossessed. It is well settled by judgments of this court as well as Apex Court, that in matters related to hire purchase agreement, the financier has a right to repossess the vehicle if there is default, and such action would not constitute a criminal offence. It is also submitted that the dispute, if any, would be a - 3 - civil one, as well as one of accounting, and would not entail any criminal liability. There seems no dispute to the fact that the complainant’s sister-in-law purchased the vehicle on basis of finance made available by Chandramohan Private Limited, a Finance Company, incorporated under the Companies Act. It is an admitted position that petitioner was one of the Directors of the aforesaid company. Even as per the complainant a sum of Rs.1,25,000/- had remained to be paid, though according to the petitioner, the amount was bigger. There is also no denial that an agreement was arrived at between the complainant’s sister-in-law and the company. Learned for complainant opposes the prayer of petitioner for grant of exemption. The dispute is primarily of a civil nature and of accounting. The petitioner is residing at Calcutta and has to move all over the country in respect of business of the company. An application under Section 205 of the Cr.P.C would be maintainable if summons has been issued at the first instance prior to issuance of warrant under Section 204 of the Cr.P.C. Learned counsel relies upon a decision of Ramesh Ghai Vs. State of Bihar reported in 2007(1) PLJR 128. As this court has already quashed the prosecution case, the instant application challenging the order rejecting the grant of exemption under Section 205 of the Cr.P.C. is dismissed as having become infructuous. Kundan (S. P. Singh, J.)