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2012 DIGILAW 765 (PAT)

Ranvir Singh @ Ranvir v. State of Bihar

2012-05-10

ASHWANI KUMAR SINGH

body2012
JUDGMENT The petitioners have invoked the inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure with a prayer for quashing of the order dated 20.1.2007 passed in Complaint Case No. 359(C) of 2006, corresponding to Trial No. 1983 of 2007, by Mr. Ashutosh Kumar, learned Judicial Magistrate, 1st Class, Muzaffarpur whereby and where under finding a prima facie case to be made out under Sections 120B, 467, 468 and 471 of the Indian Penal Code he has summoned the petitioners to face trial. 2. Heard Mr. Akhileshwar Prasad Singh, learned Senior Counsel appearing for the petitioner, Mr. Suraj Narayan Prasad Sinha, learned Senior Counsel appearing for opposite party no. 2 and Mr. Matloob Rub, learned A.P.P. appearing for the State. 3. The prosecution case arises out of a complaint instituted by the opposite party no. 2 who has alleged, inter alia, that she purchased a truck bearing registration no. WB-15-7655 under hire purchase She paid Rs. 2,26,500/- (two lakhs twenty six thousand five hundred) to the petitioner no. 1 in his office who is alleged to be working as a Manager of Shrachi Securities Ltd. in presence of the witnesses. At the time of delivery of the truck, in question, no original document, relating to the vehicle was handed over to her rather, a duplicate certificate of registration was given to her. The total cost of the vehicle in question was fixed to be Rs. 5,25,525/- between the parties. In token of receiving of Rs. 2,26,500/- the petitioner no. 1 is alleged to have given a receipt to the complainant. The remaining amount was to be paid in thirty six monthly instalments of Rs. 13,500/- each. The complainant alleges that the made payment of eleven instalments for which receipts were also issued to her. She, thereafter, demanded the original certificate of registration from the accused persons but the accused persons failed to deliver her the original certificate of registration. She made enquiry regarding authenticity of the registration of the vehicle in question from the District Transport Office, Muzaffarpur and upon enquiry she came to know that the old registration number of the vehicle was already surrendered and new registration number was allotted to the vehicle, in question, and the same stood registered in the name of some one else. The complainant, thus, alleges that the accused persons, though realized Rs. The complainant, thus, alleges that the accused persons, though realized Rs. 3,75,000/- from her, but, delivered her a stolen truck deliberately in order to cheat her. She alleges that she is• facing difficulty in plying the vehicle for want of original paper of the vehicle. 4. It is further alleged that the complainant met the petitioners and requested them to deliver original papers. She states that unless and until the original papers are delivered to her she would not make payment of remaining instalments of the vehicle. She also made an alternative offer to the petitioners to take back the vehicle in question and return her Rs. 3,75,000/- which they had already realized from her. She further alleges that she has instituted a case in the District Forum, Muzaffarpur against the accused persons for deficiency in service which is pending adjudication, in the meantime, the petitioners sent a notice dated 1.12.2005 to her demanding Rs. 2,72,04/- (sic). The petitioners are also "alleged to have misbehaved with the driver and husband of the complainant for non-payment of instalments. 5. Based on the aforesaid allegations, Complaint Case No. 359(C) of 2006 was instituted in the Court of Chief Judicial Magistrate, Muzaffarpur. The complainant was examined on oath. In her deposition before the court she has stated that she purchased the truck from M/s Shrachi Securities Ltd. on hire purchase basis and made payment of Rs. 3,75,000/-. She was given the owner book which was subsequently found to be forged. When the financier started coercing her she lodged a complaint. When she demanded back her money she was chided and asked to go from the chamber and in reply to court's question she has stated that the vehicle in question (truck) is registered in her name. 6. In support of the complaint three witnesses, namely, Hari Prasad Singh, Anil Kumar Singh and Yogesh Chandra Giri were examined in course of enquiry. After examining the complainant on oath and conducting enquiry the learned Magistrate by order dated 20.1.2007 found a prima facie case to be made out under Sections 120B, 420, 467, 468 and 471 of the Indian Penal Code and summoned the accused persons. 7. It is stated and submitted on behalf of the petitioners that the complaint has been made for oblique purpose by leveling false accusation and suppressing the material facts. 7. It is stated and submitted on behalf of the petitioners that the complaint has been made for oblique purpose by leveling false accusation and suppressing the material facts. A hire purchase agreement was arrived at between M/s Shrachi Securities Ltd., a company incorporated under the Indian Companies Act, 1956 and the complainant for purchase of a truck. The total amount of hire purchase was fixed at Rs. 4,68,325/- which was to be paid in 35 instalments. The first payment was to be made on 2nd day of August, 2003 and each subsequent payments were to be made on or before 2nd day of each succeeding calendar month. In terms of agreement 1st to 34th instalments were fixed at Rs. 13,500/- whereas the last instalment was fixed at Rs. 9,325/-. Besides the aforesaid hire amount the hirer i.e. the complainant had to pay a sum of Rs. 1,92,000/- as initial payment by hirer under the agreement which was not refundable under any circumstance. The agreement of hire purchase arrived at between the parties has been brought on record and marked as Annexure-6 to the petition. Besides the hire purchase agreement, the parties also entered into an agreement of arbitration on 2nd July, 2003 itself: Mr. Partha Sarthi Ghosh had been appointed as the sole arbitrator in terms of the agreement of arbitration which has been brought on record and marked as Annexure-7 to the petition. 8. It is submitted that out, of the agreement amount of Rs. 4,68,325/- to be paid in 35 instalments, the complainant has paid only 14 instalments and that too were paid after due date as according to hire purchase agreement the payments were to be made on 2nd of each succeeding calendar month. The complainant stopped payment of due instalments since September, 2004, as a result, a huge amount fell due against her. Thus, a notice was sent to her demanding the due amount and just in order to avoid payment of the due amount, a criminal complaint has been instituted with oblique motive. 9. The complainant stopped payment of due instalments since September, 2004, as a result, a huge amount fell due against her. Thus, a notice was sent to her demanding the due amount and just in order to avoid payment of the due amount, a criminal complaint has been instituted with oblique motive. 9. Learned counsel for the petitioners draws my attention to clauses 5, 7 and 12 of the hire purchase agreement and submits that the hirer acknowledged that he held the vehicle as a mere bailee of the owner and she had no propriety or any other right, title or interest as a purchaser therein until she having exercised in writing her option to purchase the vehicle in terms of the agreement, inter alia, by making payment of the whole amount due under the agreement and the owner i.e. the company had a right to dispose of the motor vehicle after repossession thereof either by a private sale or by public auction or rehiring without any notice to the hirer on such terms as it thought fit. 10. It is also submitted that the allegation regarding delivery of forged papers with respect to the vehicle in question is without any substance. The company in question has neither committed any forgery nor cheated the complainant. 11. On the other hand, Mr. Suraj Narain Prasad Sinha, learned Senior Counsel appearing on behalf of opposite party no. 2, submits that the dispute is not of non-payment of instalments due against the opposite party no. 2 but the dispute is that the original papers have not been given to the complainant rather the duplicate papers had been given to her in respect of the vehicle in question which are forged and fabricated papers. 12. A counter affidavit has also been filed on behalf of the opposite party no. 2. Sri S.N.P. Sinha, learned Senior Counsel, submits that in spite of repeated request to give the original certificate of registration, the accused evaded on one count or the other and lastly the complainant was constrained to file a complaint case in consumer court for deficiency in service vide consumer case no. 55 of 2005. The case in the consumer court is still pending. 13. 55 of 2005. The case in the consumer court is still pending. 13. He also submits that the learned Magistrate had called for a report from the office of the District Transport Officer, Muzaffarpur (hereinafter to be referred to as "the D.T.O.") regarding status of the vehicle in question which also goes to suggest that though the vehicle was given to the complainant, the papers given to her relating to the vehicle were forged. 14. In reply Mr. Akhileshwar Prasad Singh, learned Senior Counsel for the petitioners, draws my attention towards Annexure-A to the counter affidavit filed on behalf of the opposite party no. 2 (the complainant) which is a report given by the D.T.O., Muzaffarpur on 9.1.2007 to the learned Magistrate, who took cognizance of the offence. It has been pointed out that a perusal of the report itself would show that the name of the complainant is shown as owner of the vehicle in question as per relevant register being Vol. No. 31 page 487. The said vehicle bearing registration no. WB-15-7655 is under hypothecation with Shrachi Securities Ltd., Calcutta. He, thus, submits that from the document annexed with the counter affidavit itself it is apparent that even in the official register of the D.T.O., Muzaffarpur the vehicle in question is shown in the name of the complainant under hire purchase agreement of the company with whom she had entered into an agreement and from whom she took the truck, in question, on hire. It is asserted, that the truck in question is still registered in the name of the complainant and she has made an out and out false allegation in the complaint. 15. Having heard the parties at length I find that admittedly the complainant entered into a hire purchase agreement with M/s Shrachi Securities Ltd., a company incorporated under the Indian Companies Act, 1956. The fact regarding delivery of vehicle stands admitted. It is also stands admitted that full and final payment of the hire amount has not been paid by the complainant to the company in question. She has not alleged that the vehicle in question has been repossessed by the accused person. She admits that she received a notice for payment of the balance amount due to the company which, as per the agreement, is the owner of the vehicle in question. She has not alleged that the vehicle in question has been repossessed by the accused person. She admits that she received a notice for payment of the balance amount due to the company which, as per the agreement, is the owner of the vehicle in question. She further asserts that a case has been instituted in the consumer court for deficiency in service. The report of the D.T.O., Muzaffarpur submitted to the learned Magistrate shows that the complainant is shown as owner of the vehicle in question which is under hire purchase agreement with the company in question. 16. In such circumstance, I am of the view that neither any offence of cheating nor any offence of forgery for the purpose of cheating is made out. From the documents annexed with the counter affidavit, it is apparent that in the official register of the D.T.O., Muzaffarpur, the complainant is the owner of the vehicle. An offence of cheating would be constituted when the accused has fraudulent or dishonest intention at the time of making promise or representation. In the present case, I find that no ingredient of any offence is made out against the petitioners. 17. I am of considered view that it was not a case where any process ought to have been directed to be issued against any of the accused. The complainant alleges that the original documents have not been given to her. If this is the allegation, that would make a case of deficiency in service, for which, she has already taken steps by filing a case before the District Consumer Forum which has been brought by the complainant. 18. It appears that the present complaint has been instituted in order to put undue pressure upon the petitioners with oblique motive. In such circumstance, it is the duty of the court to ensure that the proceedings before it are not used for settling scores or to pressurize the parties to settle the dispute. 19. Taking into consideration the arguments advanced on behalf of the parties and the facts of the case, I am of the view that allowing the present application to continue against the petitioners would be a gross abuse of the process of court. The dispute, if any, is of civil nature. 19. Taking into consideration the arguments advanced on behalf of the parties and the facts of the case, I am of the view that allowing the present application to continue against the petitioners would be a gross abuse of the process of court. The dispute, if any, is of civil nature. It was incumbent upon the Magistrate, before issuing process against the petitioners, to find out whether they would be legally responsible for the offence charged for Apparently the present proceeding is maliciously instituted with ulterior motive. 20. In the result, the application is allowed. The Complaint Case No. 359(C) of 2006, corresponding to Trial No. 1983 of 2007, pending in the Court of the learned Judicial Magistrate, 1st Class, Muzaffarpur is hereby quashed.