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2010 DIGILAW 794 (JHR)

Jagdish Chand Kapur v. State of JharKhand

2010-08-09

D.G.R.PATNAIK

body2010
Order Despite service• of notice upon the Opposite Party No.2, he has neither appeared in person nor through lawyer and as such, this case has been taken up for disposal of the case at the stage of admission. 2. Heard the learned counsel for the petitioners and the learned counsel for the State. 3. The petitioners, in this application, have challenged the impugned 9rderdated 17.4.2006, passed by the learned Chief. Judicial Magistrate, Koderma in Complaint Case No. 27 of 2006, whereby cognizance for the offences under Sections 406, 420 and 120B of the I.P.C. was taken against the petitioners and they were summoned to face trial. The petitioners have also challenged the impugned order of the Sessions Judge, dated 20.4.2007, whereby the Sessions Court had dismissed the Cr. Revision Application filed by the petitioners vide Cr. Revision No. 27 of 2006 against the impugned order of cognizance, passed by the C.J.M. 4. The facts of the case in brief, relevant for the disposal of the case, are as follows:- The Opposite Party No. 2 had obtained financial assistance by way of loan from the petitioners who run a financing Company, for purchase of a Maruti Car. As per the terms of the agreement, the complainant/Opposite Party No.2 had deposited the margin money in proportion to the cost of the vehicle. Thereafter, the petitioners had extended a loan of Rs.2,37,000/- to the Opposite Party No. 2 and on the basis of the finance, the Opposite Party No.2 purchased the Car. As per the terms of Agreement, the Car was hypothecated with the financier and under the terms of the Agreement, the borrower had to repay the loan amount in 29 equal monthly installments. The complainant's allegation is that he had repaid the entire amount of loan and thereafter, demanded from the financier to issue a 'No Dues Certificate' for enabling transfer of ownership of the vehicle in his name but even after receiving the entire payments, the petitioners had illegally refused to issue the 'No Dues Certificate' for transferring the ownership of the vehicle in favour of the complainant. This, according to the complainant, constitute offences under Sections 406 and 420 of the I.P.C. It further appears that in" course of enquiry, on the basis of the statements of the complainant and his witnesses recorded on SA and on the basis of the statements and the averments contained in the complaint petition, the learned Chief Judicial Magistrate proceeded to take cognizance of the aforementioned offences against the petitioners. The Revision Application filed by the petitioners against the impugned order of cognizance was dismissed by the Sessions Court on the ground that there was no illegality or infirmity in the impugned order of the learned C.J.M. 5. Learned counsel for the petitioners argues that the impugned order of cognizance is totally misconceived and was apparently passed mechanically without application of judicial mind to the facts of the case. Learned counsel argues that even as admitted by the complainant, the complainant had obtained a loan from the financier and such loan was to be repaid by him in 29 equal monthly installments but after paying nine installments, the complainant had altogether failed to deposit any further amount to the financier. Learned counsel submits that the complainant has intentionally suppressed the material facts and has made false and misleading statements in the complaint petition as also in the statements recorded on S.A., concealing the fact that he had failed to repay the entire amount of loan. Learned counsel refers in this context to the statements of the complainant and his witnesses recorded by the Magistrate on SA in course of enquiry under Section 202 of the Cr.P.C. and submits that even from the statements of the complainant, it would transpire that the documents produced by him had disclosed that he had not paid the outstanding balance of Rs.2,03,900/- including principal and interest and furthermore, he had produced only eight money receipts, which were issued to him on receipt of the monthly . installments and did not produce any further receipt to confirm that he had paid the entire amounts of balance. Learned counsel argues further that even otherwise, the mere fact that the petitioners did not issue a 'No Objection Certificate' for enabling the transfer of ownership of the vehicle in the name of the complainant, in itself, would not constitute any of the offences either under Section 406 or under Section 420 of the I.P.C. 6. Learned counsel argues further that even otherwise, the mere fact that the petitioners did not issue a 'No Objection Certificate' for enabling the transfer of ownership of the vehicle in the name of the complainant, in itself, would not constitute any of the offences either under Section 406 or under Section 420 of the I.P.C. 6. Learned counsel for the State on the other hand by referring to the impugned order of the Sessions Judge would argue that the learned Sessions Judge had considered the facts of the case relating to the attraction of criminal liability even if the facts disclosed that a civil dispute is made out and after distinguishing the several judgments filed by the petitioners has held that the impugned order of cognizance as passed by the Magistrate, did not suffer from any illegality or infirmity. 7. I have heard the learned counsel for the parties and I have also gone through the materials available on record including the allegations in the complaint petition, the statements of the complainant and his witnesses recorded on SA, and the impugned orders passed both by the Magistrate as also by the Sessions Judge. 8. From the admitted facts it is apparent that the complainant had borrowed money from the petitioners-financiers and such money was to be repaid in 29 equal monthly installments. This was exclusively a commercial transaction between the financier and the complainant. Admittedly, after obtaining the loan amount, the complainant had purchased the vehicle and ever since the date of its purchase, the vehicle was in the possession, use and occupation of the complainant, even though the vehicle was hypothecated in favour of the financier. The dispute raised between the parties as to whether the loan amount has been refunded entirely or not, may not doubt be a matter of consideration by the appropriate Court in course of trial or enquiry but such dispute, in my opinion, does not invite the ingredients either of Section 406 or Section 420 of the I.P.C. Admittedly, there was no entrustment of any property to the petitioners and therefore, it cannot be said that they had committed any breach of trust merely because of non-release of 'No Objection Certificate'. Likewise, there does not appear any ingredients which constitute the offence under Section 420 of the I.P.C. as because there is no allegation that the complainant was dishonestly induced by the petitioners to deliver any property to them. It appears from the impugned order of the courts below that neither the Magistrate nor the Sessions Judge have considered the relevant aspects of the complainant's case nor find out as to whether even on the basis of the allegations in the complaint, whether any criminal offence is made out against the petitioners. 9. In this view of the matter, I find that both the impugned orders suffer from illegality and impropriety and the same cannot be sustained in law. For the reasons mentioned above and finding merit in this application, the same is allowed. The impugned order dated 17.4.2006 passed by the learned Chief Judicial Magistrate, Koderma in Complaint Case No. 27 of 2006 and also the impugned order dated 20.4.2007, passed by the Additional Sessions Judge (F.T.C.), Koderma in Criminal Revision No. 27 of 2006 are hereby quashed and the entire criminal proceedings pending before the court below, following the impugned order of cognizance is also hereby quashed.