IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28274 of 2007 1. Deepak Kathotia @ Deepak Kathodia , Son of Sri Sumermal Kathotia , Proprietor ( Director), Snehil Trading Associates Ltd. 10(B) , Indra Kumar Karnani Street, Kolkatta. 2. Vishwanath Mundhra, Son of Late Ram Chandra Mundhra, Manager, Snehil Trading Associates Ltd. 3. Krishna Sadhandey @ Christo, Driver, Snehil Trading Associates Ltd. ------------------- Petitioners Versus 1. THE STATE OF BIHAR 2. Sunita Devi Wife of Late Shiv Shanker Singh, resident of Village Lohara, P.S. Harnaut, District-Nalanda. ------------------- Opp.Parties. ----------- For the petitioners : M/S Devendra Kumar Sinha, Sr. Advocate Pramod Kr. Sinha, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no. 2 : None. --------------- O R D E R The three petitioners, who are impleaded as accused in Complaint Case No.18 (C) of 2003 are aggrieved by and have prayed for the quashing of the order dated 19.6.2003 passed therein by Sri Manoj Kumar Roy, Judicial Magistrate, First Class, Biharsharif , whereunder he has taken cognizance of offences under Sections 419,341,323 and 506, 379/34 I.P.C. and has issued process against them. It may be stated at the very outset that although Opp.Party no.2, the complainant, had appeared to contest the case by filing Vakalatnama yet curiously at the time of hearing ,neither she nor her accredited lawyer was present. One Sunita Devi, the complainant , impleaded herein as - 2 - Opp.Party no.2 filed the complaint on 6.1.2003 inter alia stating that her late husband Shiv Shankar Singh had purchased a truck bearing registration no.BR-1G-1596 on hire purchase basis from accused no.2 in the year 1997 and out of the cost of Rs.5,00,000/- for the Chasis a sum of Rs.1,00,000/- had been deposited in cash and further amounts were deposited in instalments. It was stated that a sum of Rs. 2,00,000/- was spent over building of the body for the truck. The further statement is that the said truck got involved in an accident resulting in Lakhisarai P.S. Case no.269 of 1999, wherein the truck was seized and the husband of the complainant received serious injuries in the accident which eventually culminated in his death and, thereafter , the complainant filed a case for her succession to the properties of the late husband and filed a petition in the court at Lakhisarai for release of the said vehicle seized by the police which was opposed by accused no.1 by claiming to be the owner of the vehicle. The court after hearing the parties released the vehicle in favour of the complainant in view of the fact that the vehicle was registered in the name of her late husband. It was further stated that since the said vehicle had been standing in the Police Station for a long period, it was not in a position to ply on the road and during that period several costly parts were stolen and as a result thereof the complainant brought the truck to a garage at Biharsharif for repairing and in which she spent about Rs.2, 00,000/- over the repair works. It is alleged that about noon on 24.12.2002 the accused persons came to her house and asked her to clear the outstanding dues - 3 - to the tune of Rs. 3,00,000/- and if the said amount was paid then no further claims would be made . It is said that the complainant handed over Rs. 3,00,000/- to accused no.1 in presence of the witnesses present and when she asked for a receipt therefor she was told by accused nos.1 and 2 that they had forgotten the receipt and requested the complainant to send her driver to their Kolkata office where the receipt and the clearance certificate would be given . It is alleged that after the accused had left the place her devar Subindar Kumar and two witnesses Dwarika Prasad and Narendra Prasad went to the garage at about 7.00 A.M. to fetch the truck .Thereafter, they proceeded with the truck and when they reached N.H.31 south to Rupaspur village, all the accused who were present there from before signaled the truck to stop and requested Subindar Kumar and the two witnesses to come down in order to hold some discussions. They were taken away to some distance. In the meanwhile the unattended truck was driven away. Objections were raised by the devar who complained that they had taken the money as also the truck whereat accused nos. 1 and 2 allegedly pointed a pistol at him and threatened him with dire consequences if he raised any alarm. The men of the complainant were then assaulted and threatened not to make any efforts to get back the truck or obtain a money receipt. Assailing the impugned order, it has been submitted that petitioner no.1 is the Director of a firm running in the name and style of “ Snehil Trading Associates Ltd.” which financed private persons whereas petitioner nos.2 and 3 are Receiver and Law Officer of the - 4 - said firm . It is further submitted that on a request being made by the late husband of the complainant in May, 1997 for financing the truck in the name of his wife where the devar would stand as a guarantor, the firm financed him to purchase the truck and a hypothecation agreement was entered into between them whereunder monthly instalments would be paid by the husband and on full payment of all instalments along with other dues , the complainant‟s husband would become full owner of the truck .The complainant‟s husband failed to pay the monthly instalments of Rs. 21,900/- notwithstanding repeated demands, whereafter a notice to terminate the agreement was given on 6.11.1997 and in terms of the agreement and the matter was referred to arbitration on 5.1.1998. Subsequently, an award was passed by the Arbitrator on 18.5.1998 and the said truck was seized on 30.7.1998 by Sri S. Mandal , Advocate, by his authorized agent who had been appointed as receiver in Misc.Case No.1024 of 1998 by the learned Judge, Civil Court, Kolkata . It was also submitted that after seizure of the truck, the complainant „s devar Subindar Kumar who was the guarantor came to the office of the petitioners and filed a compromise petition for himself and his brother who was reported to be indisposed at the relevant time and specifically undertook to pay the monthly instalments regularly as mentioned in the compromise petition and on such undertaking the truck was entrusted to Subindar Kumar . It was further submitted that after paying a few monthly instalments he defaulted and Rs.5,59,909 along with interest @ 18 % a total amount of Rs.9,96,638/- became due and payable by the - 5 - complainant‟s husband and devar till the alleged date of occurrence . It is said that in the meantime the complainant‟s husband died whereafter the complainant and her devar took possession of the truck but no instalment along with interest was paid and a notice was served on Subindar Kumar on 20.6.2003 requesting him to produce the said truck before the receiver. That notwithstanding the complainant and her devar failed to either pay the instalment or produce the said truck and with a view to misappropriate the entire dues they had disposed of the said truck by hatching a conspiracy and with a view to put pressure upon the firm the present case has been filed on concocted allegations. Without discussing the merits and pros and cons of the case of the respective parties it would be gainful to refer the decisions of the Apex Court in Charanjit Singh Chadha Vrs. Sudhir Mehra reported in ( 2001) 7 SCC 417 and Trilok Singh Vrs. Satyadeo Tripathy ( AIR 1979 SC 850) wherein it was held that in a case of purchaser launching criminal prosecution against the financer, the dispute raised was purely of 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 conditions for transfer of the property to him have been fulfilled.Therefore, the repossession of goods as per the terms of the agreement may not amount to any criminal offence.” Even in a later decision the Apex Court in Managing - 6 - Director , Orix Auto Finance ( India ) Ltd. Vrs. 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 that such disputes were purely of civil nature and also in the facts and circumstances of the case, the criminal prosecution against the petitioners deserves to be quashed. Accordingly, the application so far as the petitioners are concerned is allowed and the impugned order as against them is hereby quashed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 28th May,2009 Nawal Kishore Singh/ A.F.R.