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Rajasthan High Court · body

2012 DIGILAW 698 (RAJ)

K. Shriniwasan v. State of Rajasthan

2012-03-21

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant Misc. petition has been preferred by the petitioner who is a Hub Manager of the Finance Company, namely Ashoka Leyland Finance Company Limited seeking to have the order taking cognizance and the proceedings of the criminal case filed against the petitioner by the respondent No, 2 for the offence under Section 420 Indian Penal Code quashed by this Court in the exercise of inherent power under Section 482 Criminal Procedure Code 2. Succinctly stated the facts of the case are that the respondent No. 2 complainant had purchased a vehicle bearing registration No. RJ 09 G 3535 from the Finance Company in the year 2003 under a hire purchase agreement. When the hire purchaser, who is the complainant in the instant misc. petition failed to make the payment of the instalments of the vehicle taken on hire purchase, the Finance company re-possessed the vehicle and thereafter sold the same in terms of the hire purchase agreement in the year 2005. After more than three years of the sale of the vehicle, the respondent No. 2 complainant filed a complaint on 2.2.2009 in the Court of Additional Chief Judicial Magistrate, Nimbaheda against the petitioner who is an officer of the Finance Company and certain other persons. The allegation made in the complaint was that the Finance Company seized the vehicle despite the fact that the complainant purchaser was making the regular payment of the instalments to the Finance Company and thereafter, the vehicle was sold at a throw away price while the actual cost of the vehicle was much higher. It was alleged that the sale of the seized vehicle was made by the officers of the Finance Company to their own relatives at a lower price deliberately for the purpose of causing loss to the complainant and corresponding wrongful gain to the relatives of the accused. 3. The said complaint was forwarded to the police for investigation and the police after investigation submitted a Final Report in the matter. On the final report so being submitted, the complainant filed a protest petition and on the protest petition, the learned Magistrate has proceeded to take cognizance against the petitioner and other officers of the company and has directed summoning of the accused for the offence under Section 420 Indian Penal Code by the order impugned. On the final report so being submitted, the complainant filed a protest petition and on the protest petition, the learned Magistrate has proceeded to take cognizance against the petitioner and other officers of the company and has directed summoning of the accused for the offence under Section 420 Indian Penal Code by the order impugned. The said order has been challenged by way of the instant misc. petition. 4. Dr. S.S. Jodha, learned counsel appearing for the petitioner submits that in this case, there is no material to show that the petitioner fraudulently or dishonestly induced the complainant to part with any property and thereby caused any loss to the complainant. Learned counsel for the petitioner submits that it is the admitted case of the complainant that the re-possession of the vehicle was done because of the non-payment of the instalments. He submits that once the vehicle is re-possessed for non-payment of the instalments, then the Finance Company is entitled to recover its dues against the loan amount by selling the vehicle in the open market as per the terms of the agreement. Learned counsel submits that vehicle was duly sold by the Finance Company and the dues recovered way back in the year 2005. The complainant chose to keep silent for a period of three years and then without any justification, the complaint was filed after an undue delay of three years, for which there was no explanation available on the record, It is submitted that there is no material available on record to show that the petitioner induced the complainant fraudulently and thereby deprived the complainant from any valuable security. Thus, it is submitted that order taking cognizance amounts to abuse of the process of the Court and deserves to be quashed. 5. Per contra, Shn Gopal Acharya, advocate has opposed the averments made by the counsel for the petitioner and submits that the prosecution is at the initial stage and does not call for any interference by this Court in the exercise of its inherent powers under Section 482 Criminal Procedure Code. 6. Having considered the arguments advanced at bar and after having gone through the order impugned and the material available on record, an irrefutable conclusion can be reached that the re-possession of the vehicle was done by the Finance Company in terms of the hire purchase agreement. 6. Having considered the arguments advanced at bar and after having gone through the order impugned and the material available on record, an irrefutable conclusion can be reached that the re-possession of the vehicle was done by the Finance Company in terms of the hire purchase agreement. The complainant who was duty bound to make payment of the instalments against the hire purchase agreement, did not made the due payments as warranted under contract. Resultantly, the Finance Company was very much entitled to exercise its right of re-possession of the vehicle. The complainant waited for a period of three years before taking any action in relation to the alleged wrong committed upon her. There is no material available on the record of the case which can show that the vehicle seized by the Finance Company was sold with any fraudulent intention or motive. The allegation regarding sale of the vehicle at a low price is the bald allegation of the complainant which is not supported by any material on the record. Thus, in the opinion of this Court, the highest allegations of the complainant as levelled in the complaint do not disclose any of the ingredients of the offence under Section 420 Indian Penal Code so as to permit the prosecution of the petitioner who is the officer of the Finance Company as well as the other accused persons. If at all, the complainant was aggrieved about her vehicle having been sold at a lower price and loss having been caused to her, the proper course of action would have been for her to have taken recourse to the remedies available under the Civil law for damages. That part, it is informed to his Court that in terms of the conditions of the contract, the arbitrator was approached and he has also decided the matter in favour of the company. 7. Resultantly, the misc. petition succeeds and the order dated 1.2.2011 whereby cognizance has been taken for the offence under Section 420 Indian Penal Code and all the proceedings subsequent thereto are hereby quashed. Stay petition also stands disposed of.Petition allowed. *******