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Chhattisgarh High Court · body

2009 DIGILAW 229 (CHH)

Guruprasad Jaiswal v. Ramakant Gupta

2009-08-27

T.P.SHARMA

body2009
ORDER 1. The present petition under Section 482 of the Code of Criminal Procedure, 1973 (for short `the Code') is for quashment of Criminal Complaint Case No.38/2003 pending before the Court of Judicial Magistrate First Class, Ramanujganj. 2. Quashment is prayed on the ground that if the allegation made in the complaint is admitted in its face value, even then conviction of the petitioner under Sections 392, 394 & 506 read with Section 34 of the I.P.C. would not be possible on the ground that the petitioner has took out the vehicle in question in compliance of the agreement executed between the parties. 3. Brief facts leading to filing of this petition are that respondent No.1 has purchased one bus under hire purchase agreement and the amount was financed by Shriram Transport Finance Co. Ltd. (for short `the Finance Company'). The petitioner is administrator of the Finance Company. Respondent No.1 has paid the amount of loan. On 15-12-2002 at about 4-5 p.m. the bus was standing in a work shop at Ambikapur. The petitioner along with other persons came to the said work shop and forcefully tried to snatch the key of the bus from the conductor of the bus, they used filthy language and threatened the bus conductor & respondent No.1 also, and after snatching the key of the bus they took out the bus forcefully. Respondent No.1 made a complaint to the Police and finally, filed complaint before the Judicial Magistrate First Class, Ramanujganj who made enquiry in terms of Chapter XV of the Code and registered criminal complaint case against the petitioner. 4. I have heard learned counsel for the parties and perused the record of the Court below. 5. Learned counsel for the petitioner submits that the petitioner is Director of the Finance Company and the bus was purchased under hire purchase agreement. The bus was hypothecated to the Finance Company and before payment of all installments & dues, the Finance Company was owner of the bus and it has a right to take possession in terms of the agreement. Clause 7 of the agreement authorizes the Finance Company to obtain re-possession of the vehicle after entering into the building, premises or place or site, where the vehicle was kept. Therefore the petitioner has not committed any offence and has acted under the agreement executed between both the parties. Clause 7 of the agreement authorizes the Finance Company to obtain re-possession of the vehicle after entering into the building, premises or place or site, where the vehicle was kept. Therefore the petitioner has not committed any offence and has acted under the agreement executed between both the parties. Learned counsel placed reliance in the matter of Trilok Singh and others v. Satya Deo Tripathi1 in which it has been held by the Apex Court that launching of criminal prosecution by purchaser against financer - Dispute raised was purely of civil nature and criminal proceeding would be an abuse of the process of the Court. Learned counsel further placed reliance in the matter of Charanjit Singh Chadha and others v. Sudhir Mehra2 in which it has been held by the Apex Court that if hire purchase agreement provides the clause that financer was entitled to repossess the vehicle in case of default, repossession of vehicle would not amount to any offence and criminal proceeding on the basis of such repossession would amount to abuse of the process of the Court. Learned counsel also placed reliance in the matter of Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another3 in which the Apex Court has held that law declared by the same Bench or larger Bench has a binding force and in case of any deviation, the subsequent Bench is required to refer the matter before larger Bench. Learned counsel further submits that the decision rendered in the matter of ICICI Bank Ltd. v. Prakash Kaur and others4 is judgment per incurian therefore, same is not binding or having force of law declared by the Apex Court. 6. On the other hand, learned counsel for respondent No.1 vehemently argued that in the present case, respondent No.1 has paid all installments & dues to the Finance Company, the Finance Company that is to say, the petitioner & others, have not only, simply, took out the bus from the premises of respondent No.1, but they have entered into the work shop where the bus was standing and after using filthy language and intimidating the conductor of the bus, forcefully snatched the key and took out the bus forcefully after threatening respondent No.1. The act committed by the petitioner is punishable under Sections 392, 394 & 506 read with Section 34 of the I.P.C. and if the allegation made in the complaint is admitted by the petitioner, same would be sufficient for conviction of the petitioner under the aforesaid provisions. Learned counsel further argued that at the time of consideration for quashment of criminal proceeding in terms of Section 482 of the Code, the Courts are required to see that if the allegation made in the complaint is admitted in its face value, then conviction would be possible or not. Learned counsel placed reliance in the matter of ICICI Bank (supra), in which the Apex Court has held that forceful recovery of possession of vehicle brought on hire purchase by the officers of the Bank to restore recovery is deprecated and needs to be discouraged, Banks are required to resort to procedure recognized by law to take possession of vehicles in cases where borrower has committed default instead of resorting to strong arm tactics. 7. Clause 7 of the agreement reads as follows: - "7. The Hirer agrees to pay on demand, all expenses incurred by the Owners in collecting or attempting to collect moneys, including inter alia, for collection of cheques, visits of representatives, etc. or in obtaining re- possession or attempting to re-possess the vehicle due to them, the Owners, the hire, and for the purpose of each re-possession, leave and licence is hereby given to the Owners, their agents or any other persons employed by them to enter any building, premises or place or site, where the vehicle is or is supposed to be and take possession of the same from the Hirer or any other person without being liable to any suit or other proceedings by the Hirer or any person claiming under him." 8. Clause 7 of the agreement authorizes the Finance Company to repossess the vehicle even by entering into the premises of the purchaser where the vehicle is standing. 9. In the matter of Charanjit (supra), the Apex Court has held that the Finance Company is authorized to enter into the premises of the purchaser for repossessing the vehicle and they may repossess the vehicle. Para 17 of the said judgment reads thus, "17. 9. In the matter of Charanjit (supra), the Apex Court has held that the Finance Company is authorized to enter into the premises of the purchaser for repossessing the vehicle and they may repossess the vehicle. Para 17 of the said judgment reads thus, "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." 10. In the matter of ICICI Bank (supra), the Apex Court has deprecated the practice of recovery of vehicle with the help of musclemen. Paras 16 & 28 of the said judgments read as follows: - "16. Before we part with this matter, we wish to make it clear that we do not appreciate the procedure adopted by the Bank in removing the vehicle from the possession of the writ petitioner. The practice of hiring recovery agents, who are musclemen, is deprecated and needs to be discouraged. The Bank should resort to procedure recognized by law to take possession of vehicles in cases where the borrower may have committed default in payment of the instalments instead of taking resort to strong-arm tactics. 28. In conclusion, we say that we are governed by the rule of law in the country. The recovery of loans or seizure of vehicles could be done only through legal means. The banks cannot employ goondas to take possession by force." 11. 28. In conclusion, we say that we are governed by the rule of law in the country. The recovery of loans or seizure of vehicles could be done only through legal means. The banks cannot employ goondas to take possession by force." 11. As regards the question of binding force of law declared by the Apex Court in the matter of ICICI Bank (supra), in the light of previous decision of the coordinate Bench in Charanjit`s case in which the Apex Court has held that the Finance Company has a right to enter into the premises and repossess the vehicle, the Apex Court has not held that the Finance Company or the person in terms of hire purchase agreement are authorized to take repossession of the vehicle forcefully. 12. On the other hand, in the matter of ICICI Bank (supra), the Apex Court has deprecated and discouraged repossession of vehicle with the help of musclemen and resorting to strong arm tactics. The Apex Court has further held that we are governed by the rule of law in the country. The recovery of loans or seizure of vehicles could be done only through legal means. If the Finance Company enters into the premises and repossesses the vehicle without further commission of crime, the act may be within the ambits of hire purchase agreement, but if officers or person of the Finance Company forcefully enters into the premises of the purchaser and forcefully takes the possession of the vehicle or at the time of taking forceful possession of the vehicle commits other offences, same is not permissible under the garb of any agreement or under clause 7 of the said contract. No person can be authorized to commit offence under the garb of any agreement. People of India are governed by the rule of law and not by the rule of muscle power. 13. In the matter of Charanjit (supra), the Apex Court has not held that party under the hire purchase agreement is empowered to take forceful repossession of the vehicle by committing further crime. In the present case, according to the material collected on behalf of the complainant, the petitioner has taken forceful repossession of the vehicle after forcefully making entry in the premises and also committed other crimes. In the present case, according to the material collected on behalf of the complainant, the petitioner has taken forceful repossession of the vehicle after forcefully making entry in the premises and also committed other crimes. Therefore, the law declared by the Apex Court in the matter of ICICI Bank (supra) is not the judgment per incurian and it is still binding as the law of land. 14. Power under Section 482 of the Code is inherent and exceptional in nature. In the matter of M/s. Zandu Pharmaceutical Works Ltd. and others v. Md. Sharaful Haque and others5 the Apex Court has held thus, "8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 15. For the foregoing reasons, taking of cognizance against the petitioner is well founded and continuance of proceeding against him would not amount to abuse of the process of the Court. Consequently, the petition is liable to be dismissed and it is hereby dismissed.