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Madhya Pradesh High Court · body

2012 DIGILAW 787 (MP)

ANIL KALIYA v. STATE OF M. P.

2012-08-07

R.C.MISHRA

body2012
JUDGMENT : 1. Shri Manish Datt, Senior Counsel with Shri Ajay Mishra, Advocate for the petitioner. Shri Rahul Jain, G.A. for respondent No. 1-State. Shri Sharad Verma, Advs. for respondent Nos. 2 and 3. Arguments heard. 2. This is a petition, under section 482 of the Code of Criminal Procedure (for short "the Code"), for quashing of investigation into the case registered as Crime No. 85/2011 at P. S. Agasod, District Sagar for the offence punishable under section 392 of the Indian Penal Code. The offence appears to have been registered upon a complaint made by respondent Nos. 2 and 3 against Deepak Chouhan and the petitioner and forwarded to the SHO for investigation, under section 156(3) of the Code. 3. Deepak Chouhan and the petitioner who, at the relevant point of time, were working as Field Officer and Senior Area Sales Manager of Mahindra and Mahindra Financial Company Ltd with whom the respondent No. 2 had entered into an hire-purchase agreement in respect of Mahindra Tractor that was subsequently registered as Vehicle No. MP-15-L-0885. 4. Allegations against the petitioner and the co-accused, in short, are that on 9-12-2004, they had forcibly taken possession of the Tractor that was parked at the residence of the respondent Nos. 2 and 3 at Agasod despite the fact that price of the vehicle together with interest had already been paid. 5. Learned counsel for the petitioner has submitted that his prosecution is an abuse of the process of the Court in view of the fact that the vehicle was repossessed on 9-12-2004 after notice and intimation to Police regarding default in payment of installments. 6. 5. Learned counsel for the petitioner has submitted that his prosecution is an abuse of the process of the Court in view of the fact that the vehicle was repossessed on 9-12-2004 after notice and intimation to Police regarding default in payment of installments. 6. Sub-clause (iv) of Clause 14 of the agreement was couched in the following terms - "14 (iv) Consequences upon event of default : 14.1 Upon the occurrence of any event of default and any time thereafter, the Lenders shall without prejudice to its rights in law, be entitled to declare all sums due, and to become due hereunder for the full term of the agreement as immediately due and payable including the Borrower shall be liable to pay to the Lender foreclosure charges calculated as the percentage (as per Schedule 1) of the balance principal outstanding along with other dues including unpaid installments, service taxes, late charges etc., due as on date of such declaration and upon the Borrower failing to make the said payment in full within 7 days thereof, the Lender may, at its sole discretion, do any one or more of the following : (i) . (ii) Demand that the Borrower return the Product to the Lenders at the risk and expense of the Borrower, in the same condition it was delivered to him (ordinary wear and tear excepted) at such location as the Lender may designate and upon failure of the Borrower to do so within the period of demand, as agents and constituted attorney of the Borrower enter upon premises where the Product is located and take immediate possession of and remove the same without liability to the Lenders or their agents of such entry or for damage to property or otherwise. Upon such return of the Product or upon the Lender taking possession of the Product as hereinbefore stated the Loan herein granted by the Lender to the Borrower shall stand cancelled and provided however the remedies available to the Lender as herein given shall survive such cancellation of Loan and the Lender shall be entitled and authorized to exercise its right herein including in connection to recover its dues under this agreement. (iii) . (iv) . (v) . (vi) ." 7. (iii) . (iv) . (v) . (vi) ." 7. As explained by the Supreme Court in Charanjit Singh Chadha vs. Sudhir Mehra, AIR 2001 SC 3721 , repossession of vehicle by the financer in default of payment of installment as per terms of agreement would not attract criminal liability for the offence of cheating or theft /robbery. 8. It is true that the Apex Court in ICICI Bank Ltd. vs. Prakash Kaur, (2007) 2 SCC 711 , has deprecated the procedure resorted to by the lending bank/financial institution for recovering possession of the vehicles taken on hire-purchase basis forcibly on the ground that the borrower has defaulted in paying certain installments, but, in the present case, possession of the vehicle was taken over after due service of notice. If there was any dispute as to over payment of the price of the vehicle, the same ought to have been reflected in reply to the notice. In this view of the matter, the complaint was obviously filed with an ulterior motive of wreaking vengeance on the petitioner & the co-accused. 9. To sum up, even if the allegations made against the petitioner in the complaint, are taken at their face value and accepted in their entirety, no offence would be made out. As such, the case against the petitioner falls under categories (1) and (7) of the cases, as enumerated in State of Haryana vs. Bhajan Lal, AIR 1992 SC 604 , attracting interference under the inherent powers. 10. The petition, therefore, stands allowed. The investigation into the case registered as Crime No. 85/2011 (supra) is hereby quashed. However, nothing contained herein shall preclude the complainant from enforcing the agreement before a competent Civil Court.