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2006 DIGILAW 2212 (PNJ)

Kanwal Aggarwal v. State of Haryana

2006-05-17

VINEY MITTAL

body2006
JUDGMENT Viney Mittal, J. - The petitioner before this Court is Kanwal Aggarwal who is Director of M/s. Bansal Credits Pvt. Ltd., New Delhi. The petitioner has approached this Court through the present petition filed under Section 482 Criminal Procedure Code for quashing of FIR No. 361 dated December 10, 1995, registered with Police Station Gohana, under Sections 392/34 Indian Penal Code. Additionally, a prayer has been made for quashing of resultant proceedings including the final report submitted under Section 173 Criminal Procedure Code and under Sections 392/34/120-B Indian Penal Code. 2. The company M/s. Bansal Credits Pvt. Ltd is engaged in the business of financing vehicles on hire-purchase basis. In the course of aforesaid business, the hire-purchase agreement dated January 18, 1995 was entered between the company and one Harbans with regard to one Tata 407 vehicle bearing registration No. HR 10-A-1090. One Ashok Kumar and another Rameshwar Singh stood as guarantors for the due performance of the conditions of the agreement. Harbans had agreed to pay the total hire-purchase amount of Rs. 1,00,250/-, besides interest and other charges as per agreement in 18 equated monthly instalments. A hire-purchase agreement was entered between the parties and as per the various stipulations contained therein, the company (owner) had a right to re-possess the vehicle on account of breach of terms and conditions of the hire-purchase agreement. 3. It has been maintained by the company that the aforesaid hirer Harbans committed default in payments and consequently, the company served notices of recall to the hirer and the guarantors requiring them to make payments of all the outstanding dues and also to return the vehicle to the owner. 4. An FIR No. 360 dated December 10, 1995 was lodged by one Azad Singh, respondent No. 2 to the effect that he had purchased the vehicle in question from Nahar Singh and Mahender Singh and given an advance of Rs. 10,000/- and that the remaining amount of Rs. 1,90,000/- was to be paid later on and the vehicle was to be transferred in his name. It was maintained by Azad Singh that on December 10, 1995, he had loaded the aforesaid vehicle with 40 bags of khandsari when three-four persons stopped the vehicle in the way and took forcible possession of the vehicle along with khandsari. No person was named in the FIR. 4. It was maintained by Azad Singh that on December 10, 1995, he had loaded the aforesaid vehicle with 40 bags of khandsari when three-four persons stopped the vehicle in the way and took forcible possession of the vehicle along with khandsari. No person was named in the FIR. 4. An FIR No. 360 dated December 10, 1995 was lodged by one Azad Singh, respondent No. 2 to the effect that he had purchased the vehicle in question from Nahar Singh and Mahender Singh and given an advance of Rs. 10,000/- and that the remaining amount of Rs. 1,90,000/- was to be paid later on and the vehicle was to be transferred in his name. It was maintained by Azad Singh that on December 10, 1995, he had loaded the aforesaid vehicle with 40 bags of khandsari when three-four persons stopped the vehicle in the way and took forcible possession of the vehicle along with khandsari. No person was named in the FIR. 5. It appears that the police later on, after investigation presented a report under Section 173 Criminal Procedure Code under Sections 392/34/120-B Indian Penal Code against various persons including Harbans and the present petitioner Kanwal Aggarwal. It also appears that later on the aforesaid khandsari bags were recovered from Harbans who was the original hirer. It also transpired from the record that the aforesaid vehicle was given on superdari to the company (owner), since the vehicle was registered in the name of company. 6. It is, in these circumstances, that the petitioner Kanwal Aggarwal has approached this Court for quashing of the FIR and the resultant proceedings. 7. The claim of the petitioner has been contested by the respondents. Separate replies have been filed on their behalf. 8. I have heard Shri R.S. Cheema, the learned senior counsel appearing for the petitioner, Shri Dinesh Arora, the learned Assistant Advocate General, Haryana for respondent No. 1 and Shri R.C. Dimri, the learned counsel appearing for respondent No. 2 and with their assistance have also gone through the record of the case. 9. Shri R.S. Cheema, the learned senior counsel appearing for the petitioner has vehemently argued that the bare perusal of the contents of FIR and the report submitted by the Investigating Agency does not disclose the commission of any offence by the petitioner. 9. Shri R.S. Cheema, the learned senior counsel appearing for the petitioner has vehemently argued that the bare perusal of the contents of FIR and the report submitted by the Investigating Agency does not disclose the commission of any offence by the petitioner. Shri Cheema has maintained that even if it be taken that the possession of vehicle in question was taken over by the petitioner, still the same would not amount to commission of any offence, inasmuch as the vehicle in question was duly given on hire-purchase agreement to Harbans with a specific stipulation that he shall not transfer or hand over possession thereafter to any other person till the entire payments etc. had been made to the owner-company and till the vehicle stood transferred in the name of hirer, after exercise of the due option. Shri Cheema has placed specific reliance upon two judgments of the apex Court in the case of Charanjit Singh Chadha and others v. Sudhir Mehra, JT 2001(7) SC 226 and in the case of The Managing Director, Orix Auto Finance (India) Ltd. v. Shri Jagmander Singh and another, 2006(1) Apex(Crl.) 594 : JT 2006(2) SC 344. 10. On the other hand, the learned counsel appearing for the respondents have maintained that no case for quashing of the FIR and the consequential proceedings was made out under the inherent powers of this Court, inasmuch as, the various pleas raised by the petitioner were liable to be adjudicated upon by the trial Court. Shri R.C. Dimri, the learned counsel appearing for respondent No. 2 has even argued that the very execution and existence of the hire-purchase agreement between the company and Harbans was denied and was yet to be proved. 11. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties. 12. The record of the case shows that the agreement dated January 18, 1995 has been appended as Annexure P-3 with the present petition. The aforesaid agreement pertains to vehicle No. HR-10A-1090 and has been executed between the company M/s. Bansal Credits Pvt. Ltd. and the hirer Harbans. 12. The record of the case shows that the agreement dated January 18, 1995 has been appended as Annexure P-3 with the present petition. The aforesaid agreement pertains to vehicle No. HR-10A-1090 and has been executed between the company M/s. Bansal Credits Pvt. Ltd. and the hirer Harbans. The various terms and conditions of the agreement show that the hirer had no right to sell, assign, transfer, mortgage, pledge, hypothecate, let or otherwise deal with or part with the possession of the vehicle in question in any manner and any such arrangement made by the hirer was not treated to be binding upon the owner. It has further been stipulated in the agreement that the hirer held the motor vehicle as bailee of the owners and was not to have any right, title or interest as purchaser of the vehicle, until the owners transferred to him all their rights, title or interest in the vehicle. There is another stipulation with regular payment of hire charges. In default thereof, the owner had a specific right to re-possess the vehicle. 13. A perusal of the order dated December 15, 1995 (Annexure P-4/A) passed by the Sub-Divisional Judicial Magistrate, Gohana further shows that the vehicle is registered in the name of the company and the name of Harbans son of Ram Chander is entered as a hirer. As a matter of fact, the name of the complainant Azad Singh is not even reflected in any of the documents. On that basis, the superdari of the vehicle in question was handed over to the company. 14. A perusal of the FIR shows that Azad Singh, complainant had alleged that he had bought the vehicle in question from Nahar Singh and Mahender Singh. The aforesaid two persons Nahar Singh and Mahender Singh are shown to be having no connection with the vehicle. In these circumstances, it is apparent that if Harbans had parted with the possession of the vehicle in the name of two aforesaid persons Nahar Singh and Mahender Singh who in turn had handed over the possession to Azad Singh, then under all circumstances, in terms of the agreement, the ownership vested with the company only and in case of a default by the hirer, the company had a right to repossess the vehicle. 15. 15. The Honble Supreme Court in India in Charanjit Singh Chadhas case (supra) has held that the hire-purchase agreement in law is an executory contract of sale and confers no right in rem in hirer until the conditions for transfer of the property to him have been fulfilled. Therefore, the re- possession of goods as per the term of the agreement may not amount to any criminal offence. It was further observed by the Apex Court that the agreement specifically gave authority to the owners to re-possess the vehicle and their agents have been given the right to enter into the property wherein the motor vehicle was likely to be kept. Under the hire purchase agreement, the company has continued to be the owner of the vehicle and even if the entire allegations against them were taken to be true, no offence was made out against it. The aforesaid law laid down by the Apex Court fully applies to the facts and circumstances of the present case as well. 16. In The Managing Director, Orix Auto Finance (India) Ltd. case (supra), the Apex Court again held that the matter of re-possession of the vehicle by the owner under a hire purchase agreement was a matter of contract between the parties and if the agreement permitted the financier to take possession of the finance vehicle, then there is no legal impediment on such possession being taken. 17. At this stage, another argument raised by Shri Dimri, the learned counsel for the complainant be also noticed. Shri Dimri has argued that there was a specific allegations with regard to illegal and unauthorised possession of 40 bags of khandsri having been taken by the accused persons. Thus, it is argued that taking over the possession of the aforesaid khandsari bags was not covered by any hire-purchase agreement. 18. I have given my thoughtful consideration to the argument of the learned counsel but find that there is no force in the said argument as well. 19. A report dated December 15, 1995 submitted by ASI/SHO, P.S. Gohana to the trial Magistrate shows that the aforesaid 40 bags of khandsari were recovered from accused Harbans. 18. I have given my thoughtful consideration to the argument of the learned counsel but find that there is no force in the said argument as well. 19. A report dated December 15, 1995 submitted by ASI/SHO, P.S. Gohana to the trial Magistrate shows that the aforesaid 40 bags of khandsari were recovered from accused Harbans. There is absolutely no material on the record, and none has been produced before me by the prosecution as well, to show that there was any allegation whatsoever against the present petitioner with regard to taking over the possession of the aforesaid 40 bags of khandsari. 20. As a result of the aforesaid discussion, I find that the lodging of the FIR against the petitioner and continuation of the proceedings against him on the basis of the aforesaid FIR is clearly a misuser of the process of criminal law. Consequently, the present petition is allowed and the FIR No. 361 dated December 10, 1995, registered with Police Station Gohana, under Sections 392/34 Indian Penal Code against the petitioner is ordered to be quashed. As a result thereof, all the consequential proceedings, including the report submitted under Section 173 Criminal Procedure Code against the petitioner shall also stand quashed. Petition allowed.