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2010 DIGILAW 739 (CAL)

Raj Amitava Mitra v. STATE OF WEST BENGAL

2010-07-02

S.P.TALUKDAR

body2010
JUDGMENT S.P.Talukdar, J 1. The petitioners by filing The instant application under Section 482 of Code of Criminal Procedure sought for quashing of The proceeding, being Jadavpur P.S. case No. 539 of 2009 dated 14th October, 2009, corresponding to B.G. R. No. 5174 of 2009, now pending before The Learned Court of Additional Chief Judicial Magistrate, Alipur, 24 Parganas (S) under Sections 323/386/427/406/504/506/34 of The Indian Penal Code. The crux of The controversy, As raised In The instant application, is whether or not following Mechiavellian code of ethics, this Court would accept that "ends justify The means". 2. The people of this country are groomed with The ideas and thoughts of Mahatma Gandhi, The Father of The Nation. He believed, that 'right means must be employed to achieve right ends'. The backdrop of The present case is : - Opposite party No. 2 filed a petition of complaint before The Learned Court of Additional Chief Judicial Magistrate, Alipur, 24Parganas (S) with The prayer for referring The said complaint to police authority for investigation after treating The same As The First Information Report under Section 156 (3) of The Code of Criminal Procedure. Claiming to be The owner of Hyundai Accent Car, being registration No. WB 02L-2002, he admitted that he purchased The same by taking loan from HDFC Bank Limited In The month of July, 2008. It was a second hand car. He took loan of an amount of Rs. 1,90,000/- on The terms and conditions that The said amount with interest could be repaid by monthly instalments of Rs. 5,811/-. He went on paying The E.M.I. and It was last paid on 9th September, 2009. On 22nd September, 2009 at about 1.30 P.M., when he was coming from Garia and moving towards Jadavpur, The accused Nos. 3 and 4 came In front of The car near Ganguli Bagan bus stop and stopped The car under leadership of accused Nos. 1 and 2. Some miscreants forcibly opened The door of The car and wrongfully trespassed inside. They abused him In filthy language and assaulted him with fists and blows. He was, thereafter, thrown out of The car. They forced him to sign In The surrender letter and thereafter, left with The car As well As The original documents like blue book, driving licence, tax token etc. which were inside The vehicle. They abused him In filthy language and assaulted him with fists and blows. He was, thereafter, thrown out of The car. They forced him to sign In The surrender letter and thereafter, left with The car As well As The original documents like blue book, driving licence, tax token etc. which were inside The vehicle. Failing to contact Officers of The HDFC Bank, he approached The Jadavpur Police Station and lodged a written complaint. He was advised by The concerned police authority to approach The Court In order to obtain necessary legal order. Since he sustained injury, he was advised by The police personnel to go to M.R. Bangur Hospital for necessary medical treatment. He alleged that all The accused persons being The petitioners herein thus committed The offence of mischief, extortion, criminal trespass and also voluntarily caused hurt In collusion with each other to The complainant/opposite party No. 2 and criminally intimidated him. They also forced him to put his signature on The purported surrender letter. 3. The Learned Court In response to The prayer made by opposite party No.2, being The complainant before The Learned Court, referred The matter to The concerned police authority for investigation. This gave rise to registration of The Jadavpur P.S. case No. 539 dated 14thOctober,2009 corresponding to B.G.R. 5174 of 2009, now pending before Learned Court of ACJM, Alipur, 24 Parganas (S). 4. Mr. Debasish Roy, Learned Counsel appearing for The petitioners submitted that The entire case is based on factual misrepresentation and The case had been cooked up on The basis of wild allegations with The sole intention to bypass The legitimate claim of The concerned bank. He further submitted that The present petitioners being associated with The HDFC Bank Limited could have had hardly any involvement In The alleged crime. Mr. Roy submitted that In May, 2008, The opposite party No.2/complainant, approached The concerned bank for providing him with a loan for purchase a four-wheeler. The said application was duly processed and The authority of The bank agreed to finance a sum of Rs. 2,04,131/-. It was mutually agreed upon that opposite party No. 2 would repay The said amount by monthly instalments of Rs. 5,811/- only. Payment of such instalment was to commence on 5th July, 2008. An agreement was accordingly exempted by and between The parties on 26th May, 2008. On that very day, The aforesaid amount of Rs. 2,04,131/-. It was mutually agreed upon that opposite party No. 2 would repay The said amount by monthly instalments of Rs. 5,811/- only. Payment of such instalment was to commence on 5th July, 2008. An agreement was accordingly exempted by and between The parties on 26th May, 2008. On that very day, The aforesaid amount of Rs. 2,00,000/- and odd was disbursed. The complainant was lackadaisical In making monthly repayments and many of his cheques towards repayment were dishonoured. On 4th of August, 2009, he was informed by The bank and was asked to pay The outstanding dues amounting Rs. 1,93,471.80/- within a period of 7 days from The date of receipt of The letter. He was informed that In The event of his failure to do so, The concerned authority of The bank would be constrained to take re-possession of The vehicle. 5. Subsequently, The bank after recovery of The vehicle disposed of The same and this was done with full knowledge of opposite No.2. The letter dated 7th October, 2009 issued by such opposite party No. 2 was duly replied by The said bank. 6. Mr. Debasish Roy submitted that In such facts and circumstances, It cannot be said that any wrong whatsoever was committed by The accused persons being The petitioners herein. Mr. Kasem Ali Ahmed, Learned Counsel appearing for The State, submitted that there could be no justification for any manner of interference at The stage of commencement of investigation. 7. Learned Counsel for The private opposite party, being The complainant, submitted that The proceeding under reference does not deserve to be quashed at this stage. 8. Deriving support and strength from The Apex Court decision In The case between The Managing Director, Orix Auto Finance (India) Ltd. V. Sri Jagmander Singh and Anr, reported In JT 2006 (2) SC 344, It was submitted by Mr. Roy since The hire purchase agreement provided for re-possession, It was clearly permissible. If The agreements provide for such re-possession, there can be no legal impediment. The Apex Court In The backdrop of The said case held that The matters being essentially contractual The scope for interference by High Courts is practically non-existent unless It is shown that The contract is unconscionable or opposed to public policy. If The agreements provide for such re-possession, there can be no legal impediment. The Apex Court In The backdrop of The said case held that The matters being essentially contractual The scope for interference by High Courts is practically non-existent unless It is shown that The contract is unconscionable or opposed to public policy. The said observation of The Apex Court, however, was In The context of application under Sections 115 and 151 of The Civil Procedure Code and Order 39 Rules 1 and 2 of The said Code. Referring to The decision of The Apex Court In The case between Sardar Trilok Singh and Others V. Satya Deo Tripathi, reported (1979) 4 SCC, It was submitted on behalf petitioner that In case of financier seizing vehicle on default In payment of instalment, initiation of criminal prosecution or its continuation would be abuse of The process of The Court and The dispute is essentially of a civil nature. 9. Mr. Roy submitted that The law recoznises The principles of self-defence against injury to human body As well As against certain categories of offences committed against property. The law also recognizes The principle of self-redress or self-help. The real justification for these principles of self-defence or self- redress is necessity of immediate action to save injury to person or property. In this context, he referred to a Single Bench decision of The Allahabad High Court In The case between The Pooran Mal and Others Vs. Sadho Ram, 1965 All. L.J. 214. Mr. Roy categorically submitted that The manner In which a false complaint made by The present opposite party No. 2 before The Learned Court of CJM was entertained, by itself, reflects abuse of judicial process of Court. Reference was made to The decision of The Apex Court between. Manipal Finance Corpn. Ltd. Vs. T.Bangarappa and Another, reported In 1994 Supp (1) SCC 507. 10. In The case between The Charanjit Singh Chadha and Others Vs. Sudhir Mehra, (2001)7 Supreme Court Cases 417, The Apex Court after taking into consideration The facts of The particular case held that The said facts could not make out any offence against The financiers In hire purchase agreement. The dismissal of The application under Section 482 of Criminal Procedure Code was thus held to be unsustainable. In course of submission, reference was also made to Single Bench decision between Sanjoy Roy and Anr. Vs. The dismissal of The application under Section 482 of Criminal Procedure Code was thus held to be unsustainable. In course of submission, reference was also made to Single Bench decision between Sanjoy Roy and Anr. Vs. The State of W.B. and Anr., 2000 C.Cr.L.R. (Cal) 114 As well As The case between The Palash Chatterjee Vs. State of W.B. and Anr., reported In 2007 (2) E.Cr.N 1510. 11. In fact, unreported decision of this Bench In CRR No.1016 of 2004 was also referred to. 12. Mr. Roy, thereafter, contended that unless and until all The instalments are paid by The borrower, The financier continues to be The owner and is entitled to its custody. This follows from The decision reported In (1989) to 2 OCR 6 and 1989 Cr.L.J. 1546. In fact, on an earlier occasion It was observed by this Bench that to have a proper claim of custody of vehicle, It is not necessarily enough to be The registered owner, particularly when there is a counter claim made by The financier who is yet to get back The money spent for purchase of The said vehicle. If things go well, there is no problem As there is no antagonistic contradiction between The registered owner and The financier, who can be described As actual owner, till payment of The money but In case of a conflict between The two The former cannot get precedence and The claim of The financier cannot just be ignored. On The other hand, on behalf of The opposite party No.2/complainant reference was made to The decision of The Apex Court In The case between (-------- -------------------------) reported In AIR 2007 SC 1349 . It was categorically submitted that law must be allowed to take its own course and when there is a complaint before The police reflecting commission of cognizable offence, this Court should not ordinarily interfere. 13. As regards 'precedence', It was submitted on behalf of The petitioner that a decision deserves to be treated As given per incuriam when It is given In ignorance of The terms of a statue or of a rule having The force of a statue. He sought to derive inspiration from an Apex Court decision In The case between The Municipal Corporation of Delhi Vs. Gurnam Kaur has reported (1989) 1 SCC 101 . 14. He sought to derive inspiration from an Apex Court decision In The case between The Municipal Corporation of Delhi Vs. Gurnam Kaur has reported (1989) 1 SCC 101 . 14. In The case between The Central Board of Dawoodi Bohra Community and Another Vs. State of Maharashtra and Another, reported In 2005 SCC (Cri) 546 The Apex Court held :- "The doctrine of binding precedent As The has The merit of promoting certainty and consistency In judicial decisions, and enables an organic development of The law, besides providing assurance to The individual As to The consequence of transactions forming part of his daily affairs". Lord Halsbury In Queen Vs. Leathem, [1901 ] AC 495 said :- " Every judgement must be read As applicable to The particular facts proved or assumed to be proved, since The generality of expression which may be found there are not intended to be exposition of The whole law but govern and are qualified by The particular facts of The case In which such expression are to be found" What emerges from The aforesaid discussion is that The bank authority, which had granted loan to a person on certain terms and conditions, would be perfectly justified In taking action or steps In accordance with such terms and conditions. Clause 14 of The car loan agreement relates to "enforcement". It provides that In The event of default, The bank, therefore, its Officers, agents or nominees shall have The right to take any one or more than one of The accounts As provided therein without specific intervention of a Court or any Court order. This Clause certainly recognizes The right or power of The bank authority to re- possess a vehicle In The event of default In repayment of The loan amount. As mentioned In The beginning, The question is how It is to be done ? Does It permit The bank authority to forcibly re-possess a vehicle i.e., by hiring goons and thereby, showing thumb to The rule of law and The law enforcement agencies ? The answer perhaps will be "No". It only recognizes The right to re-possess The vehicle by taking recourse to law. Otherwise, It would invite many other problems and may invite highhandedness on The part of The Officer of a bank or financial organisation. 15. It may be mentioned that there can not be any straight jacket formula In this regard. The answer perhaps will be "No". It only recognizes The right to re-possess The vehicle by taking recourse to law. Otherwise, It would invite many other problems and may invite highhandedness on The part of The Officer of a bank or financial organisation. 15. It may be mentioned that there can not be any straight jacket formula In this regard. Ownership of The vehicle In question continues to be with The bank which granted The loan till repayment of The same. So far As The present case is concerned, admittedly The opposite party No.2/complainant could not repay The entire amount. Having regard to The copies of various documents annexed to The application, It is difficult to dispute that such opposite party No. 2 chose not to respond to The communication sent by The bank. There had been some calculated indifference, if not willful negligence, on his part. 16. Learned Counsel for The petitioner In such context was quite justified In submitting that complainants rushing to The police station and from there to The hospital and that too, being advised by The police deserves to be looked into In its proper perspective. In The backdrop of The above facts and circumstances, I find It difficult to brush aside The grievances As ventilated on behalf of The petitioners. I find that The allegations made In The complaint, filed before The Ld. Court of CJM, which had been treated As First Information Report, do not seem to have any sound rational basis. In view of The inherent improbability and latent inconsistency such a complaint does not deserve to be proceeded with. Accordingly, without being a 'prisoner of precedence', In The background of particular facts and circumstances of The present case, this Court considers that continuation of proceeding will amount to abuse of The process of law and result In miscarriage of justice. Thus, The present application, being CRR No 4004 of 2009, be allowed. The criminal proceeding, being Jadavpur P.S. case No. 539 of 2009, accordingly stands quashed. The petitioners/accused persons, if on bail, be released from their respective bail bonds and if not arrested As yet, process issued against them, if any, be immediately recalled. Send a copy of The judgement to The Ld. Court for information and necessary action. Criminal Department is directed to supply xerox certified copy In due compliance with procedural formalities, on priority basis, if applied for.