IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7884 of 1999 1. SWAMI JIWAN NANDA @ G.P.NAIYAR, S/O LATE GOPALAN NAIYAR, AT PRESENT RESIDEING AT DUMKA, P.S.DUMKA, DIST- DUMKA. 2. MOHAN BABU @ MOHAN HIMMATSINKA @ LAMFSINGKA S/O LATE RAMJIWAN HIMMATSINKA, R/O LAYAK BHAWAN, EAST BORING CANAL ROAD, P.S. BUDHA COLONY, DIST- PATNA. 3. VEER SINGH @ BRAJENDRA SINGH, S/O LATE DR. RAMANUJ SINGH R/O ANANDPURI, P.S. KRISHNAPURI, DIST- PATNA……………………………………………...PETITIONERS Versus 1. STATE OF BIHAR 2. DINESHWAR CHOUDHARY, S/O LATE DUDHNATH CHOUDHARY, R/O MIRGANJ, P.S. MIRGANJ, DIST-MIRGANJ……….OPPOSITE PARTIES with Cr.Misc. No.8046 of 1999 1. U. K. GOEL S/O LATE JAGDISH PRASAD GOEL, GENERAL MANAGER, HIRE PURCHASE OF M/S TELCO LTD. 27TH FLOOR WORLD TRADE CENTRE, BOMBAY-5. 2. P.S.GURU S/O LATE SRIDHAR GURU, SENIOR HIRE PURCHASE OFFICER OF M/S TELCO LTD. ADHARSHILA COMPLEX, GANDHI MAIDAN, P.S. GANDHI MAIDAN, DIST-PATNA. 3. M/S TATA ENGINEER & LOCOMOTIVE COMPANY LTD, JAMSHEDPUR, THROUGH ITS P.J. VAJIFDAR, SR. MANAGER (LAW)……………………………………………..…PETITIONERS Versus 1. STATE OF BIHAR 2. DINESHWAR CHOUDHARY, S/O LATE DUDHNATH CHOUDHARY, R/O MIRGANJ, P.S. MIRGANJ, DIST-GOPALGANJ……….OPPOSITE PARTIES ----------- For petitioners (Cr.Misc.No. 7884/99):- Sri Akhileshwar Pd. Singh, Adv Sri Vinay Krishna Tripathy, Adv Sri Gadadhar Pd. Singh, Adv. For petitioners (Cr.Misc.No.8046/99):- Sri Rana Pratap Singh, Sr.Adv Sri Arun Kumar Singh, Adv. -------------- 7. 28-July-2010 Heard learned counsel for the petitioners in both these quashing applications filed under Section 482 of the 2 Code of Criminal Procedure. 2. Both the cases have been heard together because they arise out of same complaint case bearing no. 989 © of 1998 (TR 1545/1998) lodged by complainant, O.P. No.2. Altogether six persons have been named as accused in the aforesaid complaint case. Three of them who are Deputy General Manager, Director and Manager respectfully of M/s Phooltas Auto Ltd are petitioners in Cr. Misc. No. 7884 of 1999 and the remaining three accused persons related to M/s Telco Ltd. are petitioners in the other application. They have challenged order of cognizance dated 25/26-3-1999 passed by Sri B.K. Sinha, Judicial Magistrate, 1st Class, Patna in the aforesaid complaint case whereby cognizance has been taken for offence under Section 420 and 120B of the IPC and process has been issued against the petitioners. 3. Although the name of the counsel for the complainant, O.P. No.2 appears in the daily cause list but nobody has appeared on his behalf. The State of Bihar is merely a formal party as it is a complaint case. 4. On behalf of petitioners the averments in the complaint petition were highlighted to show that as per statement in the complaint petition the complainant is a 3 Manager of one Adalat Singh who is registered as owner under a Hire Purchase Agreement, of one Light Commercial Vehicle of Tata make bearing Registration No. BR-04A/0451. The said Adalat Singh had admittedly taken loan for purchase of the said vehicle by obtaining finance from M/s Telco on terms and conditions which are not in dispute. The loan amount was required to be paid back in instalments. The said Adalat Singh claims to have paid some instalments to the financier through its authorized dealer M/s Phooltas Auto Ltd, Patna. As per allegations, in October 1997 the said vehicle was left in the work-shop of M/s Phooltas Auto Ltd for repair but it was not returned back. The complainant received a letter of DTO, Chapra dated 23.5.1998 and came to know that vehicle in question was auctioned in favour of one Mrityunjay Mukherjee by Telco Ltd. The complainant came to know from letter of M/s Telco Ltd dated 2.2.1998 addressed to the District Transport Officer that the vehicle in question was seized by the Company and thereafter a request for transfer of the ownership in favour of Sri Mrityunjay Mukherjee was made by the Company. 5. It has been submitted on behalf of the petitioners that admittedly the vehicle was financed by M/s Telco Ltd and 4 even as per registration book it was under a Hire Purchase Agreement. A copy of the Hire Purchase Agreement is available on the record as an Annexure. Emphasis was placed upon Clause 5, 6 and 7 of that agreement. As per Clause-5, the Hirer agreed that the Financier described as owners would have the right to recover possession of vehicle and to determine the agreement on default of payment of any of Hire payments. As per Clause-6, the Hirer agreed to hold the vehicle as a bailee of the owners and shall not have any propriety right or interest as purchaser until he exercised his option of purchase under the terms of the agreement by payment of the whole amount due under the agreement and provided the owners made over to him their right title and interest in the vehicle. Under Clause-7, the owners i.e., the financier may terminate, with or without previous notice, the agreement and forthwith retake and recover possession of the vehicle on account of various events including if, for any reason any Hire payment or part thereof is in arrears and remains unpaid for a period of seven days after the date fixed for payment. 6. In the quashing applications it has been highlighted that if the instalments had been paid by the Hirer in 5 time, the entire amount would have been paid with the 23rd instalment and the Hirer could have exercise the option of purchasing the vehicle in January 1996 itself but admittedly no such option was exercised because the instalments were not paid in time. According to the petitioners, Adalat Singh had paid in all about Rs. 1,50,000/- and dues outstainding were in excess of Rs. 1,00000/- and for that reason the vehicle was repossessed. On 27.06.1997 the said Adalat Singh is said to have paid a sum of Rs.20,000/- with assurance to liquidate the entire dues and on such assurance the vehicle was returned to him. When the dues were not paid as per assurance, then in October 1997, Adalat Singh surrendered the vehicle to M/s Phooltas Auto Ltd which acted as agent of M/s Telco Ltd and took custody of the vehicle. 7. Averments have also been made in the quashing applications that the case of the complainant that he left the vehicle from October 1997 till May 1998 for the purpose of repairs by the M/s Phootas Auto Ltd cannot be worthy of any reliance because no prudent business man will leave a commercial vehicle for repairs for such a long time without taking any further steps. 8. As noticed earlier, there is no contest by the 6 complainant to these quashing applications and the averments made therein. The terms of the Hire Purchase Agreement are not in dispute nor have the averments made in the quashing applications been disputed. Since the facts are not in dispute, the main issue is whether in view of the stipulations in the Hire Purchase Agreement, the allegations levelled by the complainant make out any offence of breach of trust and cheating or not. According to learned counsel for the petitioners, no criminal offence is made out in the facts of the case when admittedly 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 petitioners has placed reliance upon two judgments of the Supreme Court:- (1) Sardar Trilok Singh Vs. Satya Deo Tripathi, AIR (1979) SC 850 and (2) K. A. Mathai @ Babu and Anr Vs. Kora Bibbikutti & Anr, (1996) 7 SCC 212 as well as upon a recent judgments of this Court in a similar case of U.K. Goel & Anr. Vs. State of Bihar (Cr. Misc.No. 18514/1998) and in the case of Ajay Kumar Sinha & Anr. Vs. State of Bihar (Cr.Misc.No.25954/1998) disposed of on 2.4.2010. 7 9. The facts in the aforesaid cases were almost identical and in similar facts and circumstances the Apex Court held that launching of criminal case in the given facts, by the purchaser against the 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. 10. 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. perwez (Shiva Kirti Singh,J.)