1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR MISC. CRMINAL APPLICATION (ABA) NO. 247 OF 2011 ( SHIVKUMAR SINGH & OTHERS...VS..STATE OF MAH. THR. PSO DATTAWADI.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Anil S. Mardikar. Advocate for Applicants. Mr.S.S.Doifode, A.P.P. for Respondent/State. Mr. P.C. Madkholkar, Advocate for Complainant. CORAM : M.N.GILANI, J. DATE : NOVEMBER 11, 2011. 1. This is an application under Section 438 of the Code of Criminal Procedure for pre-arrest bail in Crime No. M2/2011, registered with Police Station, Dattawadi under Section 395 of the Indian Penal Code read with Sections 25(3) and 25(4) of the Arms Act. 2. M/s. Shriram Transport Finance Company Limited, Nagpur having its head office at Mumbai and Regional Office at Nagpur is engaged in advancing loan for purchase of vehicles. On 10.03.2005 one Smt. Surjeet Kaur borrowed loan of Rs.2,38,878/- from M/s. Shriram Transport Finance Company (in short “Finance Co.”) which was to be repaid in 23 monthly installments on or before 10.02.2007. The borrower committed defaults in payment of installments and therefore, the vehicle was taken possession of in the year 2005. On undertaking of the borrower to make regular payment, the vehicle was delivered back. Again there was a default and for that notices were issued. On 15.03.2011 the vehicle was taken possession of. Again the borrower promised to make payment, but in vain. The matter was referred to Arbitrator as per arbitration clause contained in the agreement. In the meanwhile, Smt. Surjeet Kaur filed complaint case before Judicial Magistrate First Class, Nagpur who referred the said complaint to the Police under Section 156 (3) of the Code of Criminal Procedure and also 2 directed to register the offence punishable under Section 379 of the Indian Penal Code vide order dated 24.05.2011. Apprehending arrest, the applicants who are office bearers and employees of the Finance Company, have filed this application seeking pre-arrest bail. 3. Heard learned counsel for the parties, including Shri Madkholkar appearing for Smt. Surjeet Kaur (Complainant). 4. Shri Mardikar, learned counsel for the applicants relied upon the decision in Charanjit Singh Chadha Vs. Sudhir Mehra, reported in (2001) 7 SCC 417, wherein it is held that where hirer had defaulted in installment payments of motor vehicle and agreement specifically provided that the financier was authorized to enter any premises for the purpose and actually recovered possession of the vehicle, no offence is made out. This was followed by the single Judge of this Court in Jivan Vinayakrao Baride Vs. Dinesh Ramdulare Gupta, reported in 2009 Cri.L.J. 2540. 5. Shri Madkholkar appearing for the complainant contended that there was no higher purchase agreement between the parties but simplicitor it was a loan transaction, though styled as “Higher-Purchase Finance Agreement”. For that he placed reliance on the decision in case of Trun Bhargava Vs. State of Haryana, reported in AIR 2003 Punjab and Haryana 98 and to buttress his contention that no high handedness or coercive action in taking possession of the vehicle is permissible, he relied upon a decision in ICICI Bank Vs. Shanti Devi Sharma & Ors., reported in 2009 CRI. L.J. 327 and in Manager, ICICI Bank Ltd. vs. Prakash Kaur, reported in 2007-SCC-2-711. 6. There are broad circumstances which according to me, are relevant and decisive in allowing this application : 3 (i) The loan of Rs.2,38,878/- was advanced as early as in the year 10.03.2005 which was to be repaid in 23 installments on or before 10.02.2007. (ii) The borrower defaulted in payments of installments and therefore on 01.06.2005 notice was issued. This was followed by seizure of vehicle and issuance of another notice dated 20.06.2005 declaring intention of the Finance Company to auction the vehicle. (iii) The borrower assured repayment of installment. The vehicle was released. Part payment was made on 25.01.2006 and on 12.05.2006. (iv) Again there was default in payment of the installments, hence, notices were issued on 23.01.2010 and 27.05.2010. (v) This was followed by seizure of the vehicle on 15.03.2011. On 16.03.2011 the borrower agreed to make repayment. (vi) After seizure of the vehicle i.e. 17.03.2011 the Finance Company issued notice to the borrowers and on 28.05.2011 the vehicle was to be auctioned. (vii) Again on 14.04.2011 the Finance Company had made a communication to the borrower. (viii) The matter was referred to Arbitrator. (ix) A complaint case was filed by the borrower after two months of this seizure i.e. on 16.05.2011 and two months thereafter an order referring the complaint to the police for investigation was passed by the learned Magistrate. 7. The averments in the complaint lodged by the borrower before the learned Magistrate reveal that despite the assault and coercive method of high degree used by the applicants and other persons at their behest, they took two months to approach the Magistrate. The record shows that the complaint dated 15.03.2011 was submitted to the Police Station Officer, Wadi only on 19.03.2011. It is 4 pertinent to note that in the complaint lodged before the Magistrate the Finance Company is shown as Non-applicant No.1 and the Branch Manager is shown as Non-applicant No.2 only. The learned Additional Sessions Judge while rejecting the bail application commented upon the actual amount borrowed and the amount which is being claimed by the Finance Company and further observed that it is seven and half times the original amount. 8. Without examining in detail legal as well as factual aspects, broad circumstances like seizure of the vehicle in the year 2005 and its release on assurance of repayment by the borrower, exchange of notices between the parties, borrower approaching the Magistrate after two months of the incident, the Finance Company intimating to the borrower about their intention to put the vehicle to the auction etc. do not rule out the possibility of the complainant exaggerating the account of the procedure followed by the Finance Company while seizing the vehicle on 15.04.2011. 9. This appears obvious after reading paragraph 2 of the reply filed by the learned Additional Public Prosecutor wherein it is stated that just to over power the driver and cleaner, there were 10 to 12 persons armed with weapons like sword, iron rod, pistol etc. This is hard to believe. Further the contention of the prosecution that the custodial interrogation of the applicant is necessary to unearth the crime and to complete the chain of investigation appears ill-founded. Whatever had happened even as per rival versions is very much clear and many things have been documented. The vehicle is in possession of the Finance Company. 10. In the light of these peculiar facts and circumstances, I am inclined to exercise discretion under Section 438 of the Code of Criminal Procedure and direct release of the applicants No.1 to 4 on 5 their furnishing P.R. Bond of Rs. Fifty Thousand each and two sureties in the like amount with a further direction to attend Police Station as and when called and with condition to allow the police to seize the vehicle if it is deemed necessary for the purpose of investigation and then to deal with it according to law. The application stands disposed of accordingly. JUDGE RR..