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Himachal Pradesh High Court · body

1998 DIGILAW 65 (HP)

GARJA RAM v. STATE OF H. P.

1998-05-13

R.L.KHURANA

body1998
JUDGMENT R.L.Khurana, J.: By virtue of the present petition preferred under Section 482, Code of Criminal Procedure read with Art 227 of the Constitution of India, the petitioner has approached this Court for the quashing of FIR No. 137 dated 23.6.1997 of Police Station, Sadar Bilaspur and the consequent proceedings in pursuance thereof in Criminal Case No. 7/1 of 1998 pending before the learned Additional Chief Judicial Magistrate, Bilaspur. 2. The facts of the case leading to the present petition, briefly, may be thus stated. One Smt. Sunita Thakur wife of Shankar Singh Thakur of village Sai-Noduan, Pargana Bahadurpur, Tehsil Sadar of District Bilaspur, entered into a hire -purchase agreement with Messrs. Libra Finance Pvt. Ltd. Delhi, hereinafter referred to as the financier, for the purchase of a mini bus No. HP-24-3402 (Tata make) at New Delhi on 3.4.1995. The financer advance a loan of Rs. 3,35,000/- to the said Smt Sunita Thakur (here in after referred to as the complainant) for the purchase of the mini- bus. The amount of loan was to be repaid with interest in 29 installments. As per the terms of the hue-purchase agreement the complainant was to pay back a total amount of Rs. 4,77,375/-in 29 installments. 3. The petitioner is the Branch Manager of the financer at Bilaspur. He on the request of Nathu Ram, husbands brother of the complainant and a close friend of the petitioner, stood guarantor for the complainant for the repayment of loan. 4. As per the terms of the hire-purchase agreement, the financer is to remain the owner of the mini-bus till the entire amount of loan and interest thereon was paid by the complainant It was stipulated in the agreement that in the event of any installment remaining unpaid for a period of seven days after due date, the financer for his agent or any person employed and authorised by it in this behalf, shall have the right to take possession of the vehicle from die complainant or any other person using and /or possessing die same. 5. The complainant became irregular in repayment of installments. Up to 30.5.1997 though a total of 24 installments should have been paid, only 16 installments were paid by her. She thus committed default to die extent of Rs. 1,32,800/-. In addition, due to die defaults in repayment of installments. 5. The complainant became irregular in repayment of installments. Up to 30.5.1997 though a total of 24 installments should have been paid, only 16 installments were paid by her. She thus committed default to die extent of Rs. 1,32,800/-. In addition, due to die defaults in repayment of installments. the complainant also became liable for over due charges to die tune of Rs. 37,362.29 paise. A notice was given to the complainant on 30.5.1997 by die financer calling upon her to pay the arrears of Rs. 1, 70,162.29P to the petitioner was authorised to take possession of the vehicle. The complainant on the receipt of such notice paid a sum of Rs. 16,600/- only- to die petitioner and promised to pay die balance amount within a week. The complainant failed to pay die amount and on 18.6.1997expressed her inability to pay the balance amount Consequently, die petitioner on behalf of die financer took possession of die mini-bus when me same was found parked within die compound of die Bus -Stand at Bilaspur. 6. The complainant 6n 23.6.1997 lodged a complaint, to die learned Chief Judicial Magistrate, Bilaspur, who forwarded die same to the police under Section 156(3), Code of Criminal Procedure and on the basis of which a case under Section 392 and 427 read with Section 34 Indian Penal Code, came to be registered at police station, Sadar - Bilaspur vide FIR No. 137/97. 7. After investigation as case for the offences under Section 384 and 427 read with Section 34 Indian Penal code, came to be presented before the learned Additional Chief Judicial Magistrate, Bilaspur, against the petitioner and one Jagat Ram. 8. At the very but set it may be stated that the dispute between the parties is purely of a civil nature and the criminal proceedings initiated by the complainant are clearly an abuse of the process of the court. 9. In Trilok Singh & Ors. v. Satya Deo Tripathi, (AIR 1979 SUPREME COURT 850) the dispute between the parties related to the purchase of a truck by the complainant therein. A hire-purchase agreement was entered into between the complainant and the Finance Company. The loan was repayable by monthly installments. According to the agreement, on default of only one installment the financer had the right to terminate the agreement even without notice and seize the truck. A hire-purchase agreement was entered into between the complainant and the Finance Company. The loan was repayable by monthly installments. According to the agreement, on default of only one installment the financer had the right to terminate the agreement even without notice and seize the truck. On the complainant having committed default in respect of the third installment the truck was seized by the financer. A complaint was filed by the complainant against the financer in this connection for certain offences including dacoity. The Magistrate after enquiry directed the issuance of summons to the financer. A petition under Section 482 Code of Criminal Procedure for quashing of the complaint was therefore made by the financer. The High Court of Allahabad dismissed the petition. On appeal before the apex Court, it was held: "We are clearly of the view that it was not a case where any processes ought to have been directed to be issued against any of the accused. On the well-settled principles of law it was every suitable case where the criminal .proceeding ought to have been quashed by the High Court in exercise of its inherent power. The dispute raised by the respondent was purely of civil nature even, assuming the facts stated by him to be substantially correct. Mondy must have been advanced to him and his partner by die financier on the basis of some terms settled between the parties. Even assuming that the agreement entered on 29th March, 1973 was duly filled up and the signature of the complainant was obtained on a blank form, it is to be noticed that the amount of the two monthly installments admittedly paid by him was to the tune of Rs. 3,5 66 exactly @ Rs! 1,783 per month. The complaint does not say as to when these two monthly installments were paid. In the First Information Report which he had lodged he had not stated that the third monthly installment was payable on July 31,1973. Rather, from the statement in the First Information Report it appears that the installment had already become due on 28.7.73, when the complainant went out of Kanpur according to his case The question as to what were the terms of the settlement and whether they were duly incorporated in die printed agreement or not were all questions which could be properly and adequately decided in a civil Court. Obtaining signature of a person on blank sheet of paper by itself is not an offence of forgery or the like. It becomes an offence when the paper is fabricated into a document of the kind which attracts the relevant provisions of the Penal Cods making it an offence or when such a document is used as a genuine document Even assuming that the appellants either by themselves or in the company of some others went and seized the truck on 30.7.1973 from the house of the respondent they could and did claim to have done so in exercise of their bona fide right of seizing the truck on the respondents failure to pay the third monthly installment in time. It was, therefore, a bonafide civil dispute which led to the seizure of the trick. 10. The apex court accordingly allowed the appeal and the criminal proceedings instituted by the complainant therein were quashed. 11. Similarly in KA. Mathai alias Babu & Anr. v. Kora Bibbikutty & Anr. (1996)7 SCC 212, the apex court on similar facts, had quashed the criminal proceedings by holding that under the terms of the hire-purchase agreement, on the failure on the part of the loanee (hirer) to make payment of installment, the financer had the right to resume possession of the vehicle even if the agreement did not contain a clause as to resumption of possession of the vehicle. Such a clause has to be read in the agreement. 12. The ratio laid down by the apex court applies to the facts of the present case on all fours. 13. Resultantly, the present petition is allowed and FIR No. 137/97, Police Station, Sadar- Bilaspur and the consequent proceedings pending before the learned Additional Chief Judicial Magistrate in Criminal Case No. 7/1 of 1988 are quashed. 14. Let a copy of this judgment be sent to the learned Additional Chief Judicial Magistrate for information and compliance.