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2006 DIGILAW 1243 (PAT)

Alok Kumar Gupta v. State Of Bihar

2006-12-13

ABHIJIT SINHA

body2006
Judgment Abhijit Sinha, J. 1. This application u/s. 482 of Cr.P.C. is directed against the order dated 10.09.2003 passed by Sri K. Lal, learned Judicial Magistrate, Ist Class, sherghati (Gaya) in complaint Case No. 95/03 whereby he has taken cognizance of the offences under Secs. 379, 323 and 504 of the Indian Penal Code, 1860 and directed for issuance of summons. 2. Complainant Mahendra Mishra filed the aforesaid complaint stating, inter alia, that he had purchased a truck bearing Registration No. BR-16G-515l from M/S Tewari Bechar which was financed by M/S Paragon Finance Ltd., Kokar, Ranchi, in pursuance of an agreement prepared between the parties. It has been stated that the complainant had paid a total sum of Rs. 5,33,636.00 through instalments to M/s Paragon Finance Ltd. and a further sum of Rs. 1,66, 642.00 to M/s Tewari Bechar. It is alleged that at about 4 P.M. on 12.03.2003, while the said truck was enroute to Bihta from Jamshedpur, carrying scraps and had reached near Dobhi, Alok Kumar Gupta, the petitioner herein, alongwith ten others came on a Sumo Car, stopped the truck, dragged out the driver and Khalasi and abused and assaulted them. It is further alleged that where as Alok Kumar Gupta snatched away Rs. 3000.00 from the pocket of the driver, upon his orders the battery and axle of the vehicle were removed as a result whereof the complainant had been put to a loss of Rs. 5000.00 . It has also been asserted that the incident was communicated to him by the driver over telephone on 14.03.2003 following which he approached the police of Dobhi and Barachatty where no action was taken. He then approached the S.P. at Gaya, who directed the Officer Incharge, Barachatty Police Station for taking action but instead the complainant was insulted and chided by the Barachactty Police. Hence, he approached the court through the complaint. It was also asserted that the complainant had suffered loss due to the high handed less of the accused who had not only committed theft and criminal breach of trust but had also cheated him. 3. Hence, he approached the court through the complaint. It was also asserted that the complainant had suffered loss due to the high handed less of the accused who had not only committed theft and criminal breach of trust but had also cheated him. 3. The case of the petitioner, herein, on the other hand, is that he is the Manager of the Ranchi, Branch office of M/s Paragon Finance Ltd. (hereinafter referred to as "the company"), a corporate body registered under the companies Act with its head office at Koikata and deals with advancing financial loans against commercial vehicles. 4. It appears that the complainant took a loan of Rs. 66,000.00 on 9.8.2001 from the said Company against the truck bearing Registration No. BR-16G-5151 for a period of six months and as per the agreement (Annexure-1) he was to pay Rs. ll,000.00 per month on the 9th o: of each succeeding calendar month starting from September, 2001. It is stated that the complainant again purchased a bus in the name of his full brother, Jay Kumar Mishra, bearing Registration No. BR - 41P - 1730 on hire purchase basis from the Company and took a total loan of Rs. 8,17,000.00 (inclusive of Finance charges of Rs. 34, 2000.00 ) and pledged his truck bearing Registration No. BR-16G-5151 with a stipulation that the loan amount would be repaid in 36 monthly instalments, each of Rs. 22, 700.00 from 22.4.2001. The copy of Hire Purchase Agreement has been appended as Annexure-2 to the petition. It is alleged that the complainant failed to make the payment of the full amount of loan. It is further said that on 5.3.03, the complainant filed an affidavit (Annexure-3) before the Company admitting therein, inter alia, that he had taken a loan of Rs. 4,75,000.00 from the Company for purchasing the bus bearing Registration No.BR-4IP-1730 and that he had pledged his truck No. BR-16G-5151 to the Company against the said loan. It was also stated therein that although the said bus stands registered in the name of Jay Kumar Mishra, but in fact it was he who was responsible for plying and looking after the said vehicle and also to make the payments of the loan amount and that for the same he alongwith his brother Jay Kumar Mishra are jointly and severally liable. 5. 5. The further case of the petitioner is that on 19.2.2003 the complainant issued a cheque (Annexure-4) for Rs. 4,66,000.00 in favour of the Company towards repayment of instalments of hire purchase of the bus but the said cheque was dishonoured due to insufficient funds in the Account. Accordingly a legal notice was given on 27.03.2003 and as there was no response a complaint under Section 138 of Negotiable Instruments Act was filed, bearing Complaint Case No. 256(C) of 2003. When no payment was made even thereafter the Company had no option but to seize the truck Anil Kumar Tripathi, the authorised agent of the Company took possession of the truck at Dobhi after informing the police at Barachatty P.S. for which a S.D. Entry was made (Annexure-6). 6. It has been submitted or behalf of the petitioner that even if the petitioner either himself or in the Company of some others went and seized the truck from the possession of the purchasery he/they could and did claim to have done so in exercise of their bonafide right of seizing the truck on the purchasers failure to pay the loan amount in time according to the learned counsel for the petitioner it was a bonafide civil dispute which led to the seizure of a truck, In this connection a reference was made to the case of Trilok Singh and Ors. V/s. Satya Deo Tripathy. 7. The learned counsel further sought to submit that it weald be clear from a reading of Annexure-6 that it was not the petitioner but one Anil Kumar Tripathy who after written information to the police seized the truck and the petitioner herein had no hand to play in the seizure of the truck which had been pledged and against which loan had been taken but not repaid. The learned counsel also sought to submit that it weald be apparent from the impugned order that the cognizance had been taken not for the theft of the truck but for the alleged theft of money from driver and assault and abuse of the driver and khlalasi and the Finance Company had the right to seize the truck. The learned counsel further sought to point out the fallacy in the a ferments in the complaint petition inasmuch as whereas the Company had given a loan of over to. The learned counsel further sought to point out the fallacy in the a ferments in the complaint petition inasmuch as whereas the Company had given a loan of over to. 4 lacs in pursuance of an agreement it could not have an odocity to steal a meagre sum from the driver of the illfated truck. 8. On the other hand, it was submitted on behalf of the purchaser that the alleged agreement was the pure defence of the petitioner herein and the same could not be looked into in an application for quashing the impugned order. He has also pointed out that the alleged affidavit said to have been sworn by Mahendra Mishra and the receipt purportedly given by Mahendra Mishra were false and fabricated by the petitioner and his Company 9. Two things are admitted from the materials available on record. Firstly the truck No.BR-16G-5151 was stopped by one Anil Kumar Tripathy, the authorised agent of the Finance company after he had lodged a written information with the Barachatti police station vide Annexure-6 and this fact is also available in the impuged order where in the learned Magistrate has: referred to the police report and the fact that it was Anil Kumar Tripathy and authorised agent of Paragon Finance company who had seized the truck against non-payment of loan after informing the police station. subsequently cognizance had teen taken. The learned Magistrate in the impugned order has clearly stated that no offence is made act for the seizure of the truck but it was for the theft of money, assault and abuse which has been Corral borated by the complainants witness that a prima facie case under Secs. 379,323 and 504 of the Indian Penal code had been made out. 10. I have given my anxious thought to the facts and circumstances of the case. 11. It is, therefore, clear that the cognizance had been taken for the alleged assault and abuse of the driver and khalasi and theft of money from the driver of the truck and the learned Magistrate has found sufficient materials in course of the enquiry against the petitioner and has, therefore, summoned the present petitioner. The learned Magistrate has not taken any cognizance against Anil Kumar Tripathy who is said to have lawfully seized the truck after informing the police. 12. I do not find any merit in this application which is accordingly dismissed.