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2006 DIGILAW 1246 (PAT)

Tirth Raj Himat-singka v. State Of Bihar

2006-12-13

GHANSHYAM PRASAD

body2006
Judgment 1. Heard. 2. This is an application under sec. 482 Cr.P.C. for quashing of the order of cognizance dated 1.3.2006 passed by Shri Sandeep Mishra, Judicial Magistrate, 1st Class, Vaishali in Complaint Case No. CI 2541 of 2005, Trial No. 1132 of 2006 as well as entire criminal proceeding arising out of the said complaint case. The learned Magistrate vide impugned order has taken cognizance under sections 420 and 406 I.P.C. against the petitioners. 3. The short facts which gave rise to the proceeding are as follows: The petitioner no.1 is Proprietor of Non-Banking Institution named and styled as Ideal Financing Corporation Ltd., Kolkota and petitioner no. 2 is its local agent. The complainant-opposite party no. 2 entered into a«hire-purchase agreement with petitioner no. 1 for purchase of a Chasis of the truck on price of Rs. 5,60,000/-. Accordingly, hire-purchase agreement was executed on 27.8.2001. Twenty percent of the said same price amounting to Rs. 1,12,100.00 was paid at the time of agreement and the rest amount of Rs. 4,48,000.00 was to be re-paid to the petitioner no.1 in 35 instalments as per the agreement, which is Annexure-2. After payment of some instalments as agreed upon the vehicle met with an accident the insurance amount was taken by the petitioner no.1. Thereafter, the opposite part no. 2 defaulted in payment of the instalments as a result the vehicle was seized by the petitioners and taken away. There after, the opposite party no. 2 filed this criminal case. 4. It is submitted by the learned counsel for the petitioners that the entire case is false and baseless. Prosecution of the petitioners is abuse of process of the court. The allegations contained in the complaint petition do not disclose ingredient of the breach of trust. It is further submitted that the case has been filed with ulterior and oblique motives just to pressurise the petitioners not to insists for payment of the instalments. The real fact is that the hirepurchase agreement contains default clause and is also accompanied by arbitration agreement. As the opposite party no. 2 made default in payment of the instalment, the petitioners invoked arbitration agreement and filed Misc. Case bearing No.121 of 2004 against the opposite party no.2. A receiver was appointed by the court on 29th January, 2004 vide Annexure-4. The receiver in pursuant to the courts order and direction seized the vehicle in question. As the opposite party no. 2 made default in payment of the instalment, the petitioners invoked arbitration agreement and filed Misc. Case bearing No.121 of 2004 against the opposite party no.2. A receiver was appointed by the court on 29th January, 2004 vide Annexure-4. The receiver in pursuant to the courts order and direction seized the vehicle in question. Final award in favour of the petitioners has already been prepared, which is Annexure-4. It is further submitted that it is purely a civil dispute and the opposite party no. 2 has wrongly chosen the forum of criminal court just to harass and humiliate the petitioners. 5. In this regard, the law has already been settled by the Apex Court in several decisions including in Charanjit Singh Chadha & Ors. vs. Sudhir Mehra reported in 2001(7) SCC 417 . Repossession of goods in terms of hire-purchase agreement does not amount to criminal offence. In paragraph-17 of the above decision, it has been held as follows: "17. 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 term of the agreement may not amount to any criminal offence. The agreement (Annexure P-1) specifically gave authority to the appellants to repossess the vehicle and their agents have been given the right to enter any property or building wherein the motor vehicle was likely to be kept. Under the hire-purchase agreement, the appellants have continued to be the owners of the vehicle and even if the entire allegations against them are taken as true, no offence was made out against them. The learned Single Judge seriously flawed in his decision and failed to exercise jurisdiction vested in him by not quashing the proceedings initiated against the appellants. We, therefore, allow this appeal and set aside the impugned judgment. The complaint and any other proceedings initiated pursuant to such complaint are quashed." 6. Thus, in view of the settled law, this prosecution case is apparently abuse of process of the court and it has actually been filed with ulterior and oblique motive and not to obtain conviction of the petitioners. Therefore, the order in question alongwith entire prosecution is fit to be quashed. 7. Thus, in view of the settled law, this prosecution case is apparently abuse of process of the court and it has actually been filed with ulterior and oblique motive and not to obtain conviction of the petitioners. Therefore, the order in question alongwith entire prosecution is fit to be quashed. 7. Accordingly, this application is allowed and the impugned order alongwith entire criminal prosecution is hereby quashed.