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Gauhati High Court · body

1995 DIGILAW 215 (GAU)

Tarachand Bothra v. MD. Barek Ali

1995-09-08

B.N.SINGH NEELAM

body1995
This criminal revision petition is so filed under section 482 of the CrPC against the order dated 18.1.94 passed by the learned Chief Judicial Magistrate, Morigaon in Case No.20 of 1994 by virtue of which the learned Chief Judicial Magistrate after examining the complainant/opposite party Md. Barek Ali on solemn affirmation took congnizance of the offence under sections 379/403 of the IPC against the accused/petitioner and issued summons to the accused. 2. Heard Mr. Sahewalfa, learned counsel for the petitioner Tarachand Bothra and Mr. N. Dhar, learned counsel for the complainant/opposite party. 3. The fact of the case in short, giving rise to this criminal revision petition so preferred under section 482 of the CrPC is that the complainant figuring here as opposite party filed a complaint case before the learned Chief Judicial Magistrate, Morigaon stating therein that the complainant had purchased a truck bearing registration No. AXA 9199 of Model 1988 being financed by M/s Bothra Motor Finance Ltd of which Tarachand Bothra, the petitioner is one of the Directors - concern being a public limited company incorporated under the Companies Act engaged in the-business of hire purchase of motor vehicle etc. The further case of the complainant was that the monthly instalment for the repayment of loan amount was so paid by the complainant/opposite party yet the accused/petitioner seized the truck forcibly at Jagiroad on 25.12.03 which even after request could not be released. According to the complainant/opposite party the seizure of the truck by the said Bothra Brothers Finance Ltd was arbitrary and illegal. It was also the case of the complainant/opposite party that the owner book of the truck in question was in the name of the complainant and thus after the payment of the loan amount the complainant was the absolute owner of the truck in question and any sort of interference by the financier was not at all justified. At the foot of the complaint petition the description of the vehicle is given by indicating Chassis No. Engine No. etc. Against the order of the learned Chief Judicial Magistrate dated 18.1.94 taking cognizance under section 3797 403 of the IPC, the accused/petitioner being aggrieved, thus preferred this revision petition. 4. Mr. GN Sahewalla. At the foot of the complaint petition the description of the vehicle is given by indicating Chassis No. Engine No. etc. Against the order of the learned Chief Judicial Magistrate dated 18.1.94 taking cognizance under section 3797 403 of the IPC, the accused/petitioner being aggrieved, thus preferred this revision petition. 4. Mr. GN Sahewalla. learned counsel for the petitioner by pressing into service all the points so taken-in this criminal revision petition as good grounds for setting aside the impugned order dated 18.1.94 rather quashing the proceeding itself pointed out that there was no prima facie material before the learned Court below as to take cognizance of the offence by also issuing summons to the accused/petitioner rather the complaint petition would have been dismissed observing that dispute if any arising between the parties was purely of civil nature. It is further pointed out that the complainant was to pay the loan amount in equal instalments commencing from 30.11.88 as per terms and conditions of the agreement the financier was the owner of the vehicle and the complainant/opposite party was nothing but the bailee. In this connection conditions as referred to the clause of the agreement; one of the conditions being that the Hirer acknowledges that he holds the vehicle as a bailee of the owners and shall not have any proprietory right or interest as purchaser therein until he shall have exercised his option of purchase as herein before provided and shall have paid the whole amount due under the agreement or under any term thereof. On behalf of the petitioner certain documents are filed. Annexure 1 is the proposal form and Annexure II is the agreement with terms and conditions so entered therein. By referring to Annexure I, Mr. Sahewalla the learned counsel for the petitioner has further pointed out that the owner book of the vehicle in question with the details of vehicle was so prepared in the name of Barek Ali the details tallying with the details of the vehicle so given at the foot of the complaint petition but, in the said owner book it has been incorporated that the person is registered as registered owner under a Hire Purchase Agreement with M/s Bothra Motor Finance Ltd. That being the position, Mr. Sahewalla has pointed out that mere registration of the vehicle in the name of Barek Ali would not make him the absolute owner of the vehicle unless the full loan amount is paid and that being the position the petitioner/accused was very much within its limit as to seize the truck in question and take possession of the same for which the financier was very much legally entitled. By referring Annexure IV it is pointed out that after such seizure and repossessing of vehicle on 22.12.93 for default in non-payment under Hire Purchase Agreement, intimation was sent telegraphically to the Officer-in-charge, Dispur PS. A photo copy of the said telegraphic message is annexed to this petition as Annexure IV. Mr. Sahewalla has further pointed out that in case of any violation of the agreement under the Hire Purchase Scheme, the person so aggrieved has a right to take shelter before the Court for redressal. The dispute being purely of civil nature and therefore, on no count it can be said that the petitioner/accused had committed any theft as claimed by the complainant/opposite party. That being the position, the prayer is that the impugned order of the learned Chief Judicial Magistrate, Morigaon taking cognizance of the offence against the petitioner summoning him to face the trial is bad in law and continuance of which will be nothing but the abuse of process of Court and as to meet the ends of justice it is necessary to be quashed. Lastly, it is also pointed out that there was no prima facie material before the learned Chief Judicial Magistrate, Morigaon as to entertain the said complaint petition, the complainant had not shown as single chit of paper with regard to his making full payment as fictitiously claimed by him. In this connection Mr. Sahewalla learned counsel for the petitioner has referred to a deicision of the Supreme Court in State of Harayana & others vs. Bhajanlai & others, 1992 Supp (1) SCC 335 in which it has been held that where a criminal proceeding is manifestly attended with rnalafide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spiel due to private and personal grudge the revisional Court can rather quash the whole proceeding. It is pointed out that the financier/petitioner took possession of the vehicle because of non-payment of loan amount as per terms and conditions so agreed upon under written agreement deed in this Hire Purchase Agreement. It is further pointed out that the financier had thus the option to terminate the agreement for non-payment of monthly instalment and to take possession of the vehicle and in such case if the financier is being unwarrantedly arraigned for his such act, the High Court can exercise inherent powers as to quash the proceeding against the financier. In support of his contention, he has also referred to a decision of the reported case in Subhash Chandra Betala vs. Shri Dwizen Chandra Kalita, (1988) 1 GLR 467 [1988 (1) GLJ NOC 29]. It is pointed out by Mr. Sahewalla that the present dispute is purely of a civil nature and criminal proceeding initiated was an abuse of the process of the Court. In such case it is pointed out that the proceeding deserves to be quashed. In support of his contention, he has referred to a decision of the reported case in Trilok Singh & others vs. Satya Deo Tripathy, AIR 1979 SC 830, by particularly referring to paragraph 5 of this judgment where it was held that the dispute in between the financier and hirer for breach of trust and conditions of the agreement is a civil dispute to be settled by a competent Court particularly when in the instant case in support of the complainant contention of making full payment, not a single chit of paper is filed as to make out a prima facie case. 5. Mr. N.Dhar, learned counsel for the complainant/opposite party on the otherhand, has pointed out that having found the prima facie material, the learned Chief Judicial Magistrate has rightly taken cognizance of the offence, process was issued and the proceeding be thus not quashed. The plain reading of the complaint petition as pointed out by Mr. Dhar, has made out an offence under section 379. 403 of the IPC and that the financier had gone out of way seizing the vehicle and taking possession of the same forcibly causing great hardship to the complainant/opposite party. In support of his contention Mr. Dhar has referred to a decision reported in Shri Gopal Singh vs. Dhanraj Dev & others, 1994 (1) Crl LJ 1652. Mr. 403 of the IPC and that the financier had gone out of way seizing the vehicle and taking possession of the same forcibly causing great hardship to the complainant/opposite party. In support of his contention Mr. Dhar has referred to a decision reported in Shri Gopal Singh vs. Dhanraj Dev & others, 1994 (1) Crl LJ 1652. Mr. Dhar has further pointed out that the owner book of the vehicle shows that the registration of the vehicle was in the name of the complainant/opposite party which fortifies the complainant's case .with regard to his making full payment. Mr. Dhar has pointed out that the power of quashing a criminal proceeding by the High Court under section 482 of the CrPC should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extra-ordinary or inherent power does not confer an arbitrary jurisdiction on the Court to act according to its own whim or caprice. The Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. Lastly, it is submitted that if the impugned order is set aside and the proceeding so initiated against the accused at this stage is quashed it will cause great prejudice to the interest of the complainant/opposite party, hence the prayer is that the criminal revision petition be dismissed. 6. After hearing the learned counsel for the parties. I have carefully gone through the content of the complaint petition, the impugned order so passed which is dated 18.1.94 with that of context of the present revision petition along with documents so filed marked as Annexure I to Annexure IV. I find by going through the terms and conditions of the agreement that the status of the purchaser was that of a bailee unless the whole amount due in the agreement was paid and the complainant in his complaint petition has not given details claiming full payment said to have been made in support of which as to make out a prima facie case, not a single chit of paper was filed. Furthermore, in such circumstances, the financier in my opinion had the right as to terminate the agreement and to take possession of the vehicle in question which was so done sending intimation of the same to the Officer-in-charge of the Dispur Police Station. As regards the registration of the vehicle so done in the name of the complainant in the present case, the owner book also discloses that the name of the accused/petitioner is also shown in the owner book at the appropriate column indicating therein that the vehicle was so registered in the name of the owner under a Hire Purchase Agreement, the financier being M/s Bothra Brothers Motor Finance Ltd. That being the position, simply the name of the complainant/opposite party being shown in the owner book in the present case will not entitled him to be absolute owner of the vehicle unless there is clearance chit of making full payment of loan amount to which the complaint petition is completely silent and even in the argument so advanced by Mr. Dhar, learned counsel for the complainant/opposite party, nothing has been submitted. 7. Taking that view, I find it to be a fit case in which the impugned order dated 18.1.94 so passed in VCR Case No.20 of 1994 by the learned Chief Judicial Magistrate warrants interference. The violation in connection with the agreement so entered into between the parties under Hire Purchase Scheme is a dispute of civil nature and that being the position continuance of this criminal proceeding will be nothing but the abuse of the process of the Court. 8. Consequently, the impugned order is thus hereby set aside and the proceeding so initiated against the petitioner/accused is quashed. This criminal revision petition is allowed.