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Gauhati High Court · body

2007 DIGILAW 263 (GAU)

Kumud Kalita v. Lalit Sarma

2007-04-03

I.A.ANSARI

body2007
1. The petitioner herein took, on loan, a car oh the basis of a hire-purchase agreement, which had been entered into by him with M/s. Bikash Finance Corporation. In terms of the said hire-purchase agreement, the amount, advanced by the financier, was to be re-paid in 42 monthly instalments with interest as had been agreed upon by the parties concerned. This hirepurchase agreement stipulated that the hirer would not sell, assign, transfer, mortgage, pledge, hypothecate, let or otherwise deal with or part with the possession of the said motor vehicle or create any interest of any third party therein until the time all the payments, due to the financier, were made. Under this hire-purchase agreement, it was also stipulated by the parties that until payment of the entire dues of the financier, the financier, who was the owner of the vehicle, would remain the owner of the vehicle and that the vehicle would be transferred to the petitioner, when the financier's dues were cleared. The hire-purchase agreement vested in the financier the right to repossess the vehicle if the hirer committed default in making payment of his dues. When the petitioner sold the said vehicle to a third party, the financier, on 9.1.2006, lodged an FIR with Nalbari Police Station alleging, inter alia, that the hirer (i.e., the petitioner herein) had not made payment of his dues to the financier and that the hirer had threatened to kill the representative of the financier, when the said representative had gone to the hirer seeking payment of their dues. It was also alleged in the F.I.R. that the hirer had sold the vehicle to one Tirtha Sharma of Chaygaon village and given possession of the said vehicle to the said Tirtha Sharma. Based on this FIR, Nalbari Police Station Case No. 297/2006 under sections 406/420, IPC was registered against the petitioner. During investigation, police seized the said vehicle. 2. Though the petitioner applied for zimma of the vehicle, the learned Chief Judicial Magistrate, Nalbari, passed" an order, on 12.2.2007, rejecting the petitioner's prayer for zimma and directed that the vehicle be handed over to the financier after verification of all necessary documents and on execution of a bond of one lakh rupees. This order came to be challenged by the petitioner in Criminal Revision No. 08/2007. This order came to be challenged by the petitioner in Criminal Revision No. 08/2007. Though the learned Sessions Judge, Nalbari, admitted the revision and, initially, stayed the operation of the order, dated 12.2.2007, aforementioned, the revision was, eventually, dismissed on 19.3.2007. The basis for this dismissal was that the documents, produced in the court of the learned Sessions Judge, indicated that the petitioner had purchased the car on the basis of a hire-purchase agreement where under the financier had the right to repossess the vehicle and in the face of the terms and conditions of the hire-purchase agreement, the order, dated 12.2.2007, passed by the learned Chief Judicial Magistrate was correct and needed no interference. The petitioner is, now, before this court with this application, made under section 482, Cr.PC read with article 227 of the Constitution of India, seeking to get the FIR quashed and also for the purpose of receiving the zimma of the said vehicle. 3. Heard Mr. S.C. Biswas, learned counsel for the accused-petitioner and Mr. K. Munir, learned Addl. Public Prosecutor, Assam. 4. In this Criminal Petition, the petitioner prays for, inter alia, setting aside and quashing not only the impugned order, but the entire proceeding including the FIR. While considering the present petition, what needs to be borne in mind is that when the contents of an FIR, read as a while, disclose commission of an offence, such an FIR cannot be quashed merely on the allegation made by the accused that the allegations, contained in the FIR, are false. At the stage of quashing, a truth or falsity of the accusations made in the FIR cannot be examined, for, the High Court has to assume the contents of an FIR to be correct and true and on the basis of such an assumption, it has to decide as to whether the FIR discloses commission of a cognizable offence or not and if the FIR discloses commission of an offence, which incognizable, the FIR cannot be quashed unless the accusations made are improbable in nature. In a hire-purchase agreement, it is the financier, who remains the owner of the property purchased and the person, who receives the finance, holds the property, so financed, as a hirer and trustee of the financier. If the trustee acts in a manner, which attracts ingredients of section 405, IPC, the trustee can be prosecuted under section 406, IPC. In a hire-purchase agreement, it is the financier, who remains the owner of the property purchased and the person, who receives the finance, holds the property, so financed, as a hirer and trustee of the financier. If the trustee acts in a manner, which attracts ingredients of section 405, IPC, the trustee can be prosecuted under section 406, IPC. 5. In the present case, the accusations made against the petitioner are to the effect, inter alia, that the petitioner had purchased the car on the basis of a hire-purchase agreement, which made provisions not only re-possession of the vehicle by the financier, but also stopped the petitioner, as hirer, from selling the vehicle to anyone without clearing his loan. Though it is the petitioner's case that he has paid all his dues, the fact remains that the question as to whether the petitioner has really cleared his dues or not is a question, which can be determined only during investigation or at the trial, .if held and not in this proceeding for quashing. When the allegation is that the loan amount has not been paid and yet the vehicle has been sold and that such a sale, without making payment of the dues, is contrary to what had been stipulated in the hire-purchase agreement and when the further allegation is that when the representative of the financier had attempted to repossess the vehicle, the petitioner had threatened to kill him, it becomes transparent that the FIR did disclose commission of offence under sections 406/420, IPC. In the facts of the present case, neither the FIR can be quashed nor can the directions given by the learned court below that the vehicle be kept in the custody of the financier, until further order, be said to be suffering from any infirmity, legal or factual. 6. Because of what have been discussed and pointed out above, I do not find any reason to admit this Criminal Petition. This petition, therefore, fails and the same shall accordingly stand dismissed.