IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.54823 of 2006 RAVI TODI, S/o Shrawan Tody, Chairman, Chinar Builders and Constructions, Todi Mansion, 15 India Exchange Palace Extension, Kolkatta, Police Station Lal Bazar in the town and district of Kolkatta – 700073 (West Bengal) …………. Petitioner Versus 1. STATE OF BIHAR 2. Subodh Kumar, s/o Mukund Lal Das, R/o Mohalla Kalibagh, Rajendra Nagar, Bettiah, P.S. Bettiah, in the District of West Champaran ….. Opp. Parties ----------- For the petitioner : M/s Akhileshwar Pd. Singh & Ranjan Kr. Sharma For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. no. 2 : Mr. K.K.Tiwary, Advocate ------- O R D E R The petitioner one of the two accused of Complaint Case No. 197(C) if 1997 has prayed for the quashing of order dated 24.7.1999 passed therein by the erstwhile Sub Divisional Judicial Magistrate, West Champaran at Bettiah, whereby he has taken cognizance of offence under section 420 IPC against both the accused including the petitioner and has also directed for issuance of process against them. The prosecution case is based on a complaint petition filed on 10.4.2007 by one Subodh Kumar, impleaded as O.P. No. 2 herein, inter alia stating that at about 10 A.M. on 23.1.1997 while he was at his house, one Rajan Kumar arrived and disclosing himself to be a representative of M/s Chinar Builders and Constructions Company (hereinafter referred to as “the Company”) as also of M/s Serachi Security Ltd. (hereinafter referred to as “the Security Company”) requested the complainant to pay the balance amount outstanding towards the finance given by the Company for purchase by the - 2 - complainant of a Tata 407 minibus bearing registration no. BR – 05 M – 6591 and also threatened to get the vehicle seized. The complainant disclosed that he had got the vehicle financed from the Company for an amount of Rs. 1,25,000/- in the year 1990 and till 4.3.1993 he had already made payments of Rs. 1,38,525/- by different instalments and that no amount was presently due with him. It is alleged that the accused again began to threaten the complainant to get the vehicle seized and also harass him by getting him implicated in a case as the Chairman of the Company, the petitioner herein, was a weak person. It is further alleged that after interaction a sum of Rs. 10,000/- was demanded by the said Rajan Kumar who assured to get the matter settled by going to Kolkata and also to get the vehicle released from mortgage. It is further alleged that the said Rajan Kumar had tried to impress upon the complainant that he was fully authorized by the Chairman. The further contention of the complainant was that on being mislead by the said Rajan Kumar he had paid a sum of Rs. 10,000/- in presence of witnesses and on demand for receipt of the said payment the said Rajan Kumar gave out that as he had not come with the receipt book, assured to send the receipt and clearance certificate from Kolkata. The grievance of the complainant is that till date the said Rajan Kumar had neither sent the money receipt nor clearance certificate. It is further alleged that on 1.2.1997 said Rajan Kumar again came to Bettiah and got the vehicle seized in collusion with the Bettiah Mufassil Police , which was subsequently released in his favour - 3 - on 24.2.1997 under the orders of the learned Chief Judicial Magistrate, West Champaran at Bettiah passed in Case No. 10 of 1997. Thereafter it is said that the complainant went to Kolkata on 15.3.1997 talked to the accused and also demanded the money receipt and clearance certificate, whereupon the accused gave out that the money receipt and clearance certificate would be issued only after a further payment of Rs. 35000/-. On the aforesaid premise the complainant alleged that he had been cheated by the two accused who had misappropriated his money with bad intention. It is alleged that the accused persons had forcibly taken his signature on a plain bond in which several conditions had been incorporated with pen. While pleading that he had been falsely implicated the impugned order and the instant criminal proceeding was sought to be assailed as being malafide and with malicious intention for wreaking vengeance to satisfy private and personal grudge. It was further submitted that the complainant had suppressed the material facts so as to procure an illegal order from the Court. In this context it was sought to be submitted that the complainant took the vehicle in question on Hire Purchase Contract in respect whereof a Hire Purchase Agreement was executed on 8.8.1990, whereupon the complainant and his witnesses Rajesh Kumar and Shailendra Mishra had signed. In terms of the agreement the complainant was required to pay a total sum of Rs. 2,39,390/- in 23 monthly instalments of which Rs. 9,800/- was to be paid as the first instalment and the remaining 22 monthly instalments were fixed at Rs. 8,100/- . The complainant was also - 4 - required to pay compensation for delayed payment of instalments. It was also agreed that the vehicle in question would remain as Trust property and the complainant would hold the vehicle as bailee of the owners and would have no proprietory interest whatsoever as purchaser until he would exercise his option to purchase after payment of full amount and the owners had right to terminate the contract and take possession of the vehicle or to call upon the payment to restore possession in the events mentioned in the agreement. The owner also reserved rights in themselves to dispose of the vehicle after repossession in any manner. The owners also reserved the right in themselves to repossess the vehicle with all articles, goods and apparatuses. It was submitted that part of 23rd monthly instalment to the tune of Rs. 7,125/- fell due on 5.8.1992 which he had not paid till date Rs. 38,659/- also fell due against the complainant for delayed payment and for failure to make payment of 23rd monthly instalments Rs. 3,360/- was incurred by the owners in collecting monthly instalments and till 30.6.2006 a total sum of Rs. 49,144/- remained outstanding against the complainant and as a result thereof the seizure of the vehicle in question by his agent. It was further submitted that having defaulted in payment, the complainant raised a grievance of breach of cheating or criminal conspiracy against the petitioner and the co-accused moreso ignoring the terms of the agreement of the owners reserving right to repossess the vehicle. Even if allegation made in the complaint are taken at their face value, no - 5 - offence can be said to have been made out against any of the accused specially the petitioner. It was held in Charanjit Singh Chadha and another Vs. Sudhir Mehra reported in (2001) 7 SCC 417 and Trilok Singh & ors. Vs. Satyadeo Tripathy reported in AIR 1979 SC 850, that in a case of purchaser launching criminal prosecution against the financer, the dispute raised was purely by civil nature and criminal proceeding initiated is an abuse of the process of the Court and deserve to be quashed. It was held in Charanjit Singh Chadha’s case (supra): “ The Hire Purchase Agreement in law is an executory contract of sale and confers no right in rem on the hirer until the condition for transfer of the property to him have been fulfilled.” Therefore, the repossession of goods as per the term of the agreement may not amount to any criminal offence. Even in a later decision the Apex Court in Managing Director, Orix Auto Finance (India) Ltd. Vs. Jagmander Singh reported in 2006(2) SCC 598 observed that repossession in terms of the Hire Purchase Agreement is clearly permissible. In view of the categoric observations of the Hon’ble Apex Court, to the effect, that such transaction were purely of civil nature and also in the facts and circumstances of the case, the criminal prosecution against the petitioner deserves to be quashed. - 6 - Accordingly the impugned order taking cognizance, so far as the petitioner is concerned, is an abuse of the process of the Court and as such is quashed. The application, so far as the petitioner is concerned, is allowed. Patna High Court, Patna. Dated : The 11th of May, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)