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2014 DIGILAW 1632 (RAJ)

HDFC Bank Limited v. State of Rajasthan

2014-10-09

NISHA GUPTA

body2014
JUDGMENT 1. - This petition u/S.482 Cr.P.C. has been filed on behalf of the petitioner for quashing of FIR No.604/2009 registered at Police Station Vaishali Nagar, Jaipur City (South) for offences u/Ss.384, 323 and 143 IPC. 2. The contention of the counsel for the petitioner is that petitioner is a Company incorporated under the Companies Act and offering financial services to its customers. In the present case, an amount of Rs. 3,17,700/- has been advanced to respondents No.2 and 3, but they have not paid the money and 23 defaults are there of not paying the installments. The petitioner has right to resume the possession of the vehicle in view of the term of the hire purchase agreement and after due intimation to the concerned police station, vehicle has been repossessed as respondents No.2 and 3 have neither produced vehicle for inspection nor paid the monthly installment. In the backdrop of these facts, impugned FIR has been lodged against the present petitioner for the offence under Sections 384, 323 and 143 IPC on the ground that it has dishonestly taken the possession of the vehicle, whereas respondents No.2 and 3 are the defaulters and repossession has been rightly taken by the present petitioner, no offence has been committed by it hence, the FIR be quashed.Per contra, the contention of the Public Prosecutor is that present petitioner has no right to repossess the vehicle by way of muscle power and specific allegations have been lodged in the FIR hence, the FIR is maintainable. 3. Heard the learned counsel for the petitioner, learned Public Prosecutor and perused the impugned FIR. 4. The contention of the present petitioner is that under the hire purchase-agreement, it has repossessed the vehicle and no criminal proceedings could be initiated for extortion. Respondents No.2 and 3 are defaulters in payment and after intimation to them and to the concerned police station, vehicles has been repossessed and to put pressure on the petitioner, this FIR has been lodged and to fortify his contention, reliance has been placed on Charanjit Singh Chadha & ors. Respondents No.2 and 3 are defaulters in payment and after intimation to them and to the concerned police station, vehicles has been repossessed and to put pressure on the petitioner, this FIR has been lodged and to fortify his contention, reliance has been placed on Charanjit Singh Chadha & ors. v. Sudhir Mehra, AIR 2001 SC 3721 wherein it has been held: "Where the hire purchase agreement between the parties specifically gave authority to the non-banking finance Company to repossess the vehicle and their agents were given the right to enter any property or building wherein the motor vehicle was likely to be kept and under the hire purchase agreement, said Company continued to be the owners of the vehicle, no offence of cheating, criminal breach of trust or theft of vehicle could be said to have been committed by the Company, who was the owner of vehicle, when on failure of hirer to pay the installments due, the Company took possession of the vehicle from the motor mechanic who was in possession of vehicle for certain repairs to be carried out. The hire-purchase agreement in law is an executory contract of sale and confers no right in rem on hirer until the conditions for transfer of the property to him have been fulfilled. Therefore, the repossession of goods as per the term of the agreement may not amount to any criminal offence." Further reliance has been placed on K.A. Mathai @ Babu & Anr. v. Kora Bibbikutty & Anr., (1996) 7 SCC 212 wherein it was held: "... the financier took possession of the bus from the complainant with the aid of the appellants. It cannot thus be said that the appellants, in any way, had committed the offence of theft and that too, with the requite mens rea and requisite dishonest intention. The assertion of rights and obligations, accruing to the appellants under the aforesaid two agreements, wiped out any dishonest pretence in that regard from which it could be inferred that they had done so with a guilty intention." 5. In Trilok Singh & ors. v. Satya Deo Tripathi, AIR 1979 SC 850 , it was held: "that the proceeding initiated was clearly an abuse of the process of the court. It was not a case where any process ought to have been directed to be issued against the accused (appellants). In Trilok Singh & ors. v. Satya Deo Tripathi, AIR 1979 SC 850 , it was held: "that the proceeding initiated was clearly an abuse of the process of the court. It was not a case where any process ought to have been directed to be issued against the accused (appellants). On the well-settled principles of law if was very suitable case where the criminal proceeding ought to have been quashed by the High Court in exercise of its inherent power. The dispute raised by the respondent was purely of a civil nature even assuming the facts stated by him to be substantially correct." Further reliance has been placed on Aarif Khan v. State of Raj., 2008 (1) R.C.C. 309 wherein it has been held that where possession has been taken under the hire-purchase agreement and dispute arose out of terms and conditions of the agreement are civil in nature and also relied on Bharath Mehta v. State by Inspector of Police, Chennai 2008 (2) Supreme 596 and Managing Director, Orix Auto Finance (India) Ltd. v. Shri Jagmander Singh & Anr., 2006 (1) Supreme 708 . Lastly reliance has been placed on Anup Sarmah v. Bhola Nath Sharma & ors., (2013) 1 SCC 400 wherein it was held: "In view of the above, the law can be summarised that in an agreement of hire-purchase, the purchaser remains merely a trustee/ bailee on behalf of the financier/ financial institution and ownership remains with the later. Thus, in case the vehicle is seized by the financier, no criminal action can be taken against him as he is possessing the goods owned by him." 6. In the light of the above, contention of the present petitioner is that the vehicle has been handed over to respondents No.2 and 3 under the hire purchase agreement. Present petitioner is the owner and the trustee of the vehicle and ownership also lies in them and if the vehicle has been seized by the company, no offence has been committed by them.Per contra, the Public Prosecutor has relied upon Manager, ICICI Bank Ltd. v. Prakash Kaur & ors., JT 2007 (4) SC 39 where the Apex Court has condemned the practice of repossessing the vehicle with muscle power but at the same time, criminal proceedings have been quashed. 7. 7. Since the vehicle was under the hire-purchase agreement between the parties and prior to the lodging of the FIR, vehicle has been repossessed by the company and just to put pressure FIR has been lodged. In the present case, vehicle has been seized by the company under the hire purchase agreement, no criminal intention could be attributed to the present petitioner till the subsistence of the agreement, present petitioner is the owner and trustee of the vehicle and under the agreement, it has took the possession.In view of the above, this petition u/S.482 Cr.P.C. succeed and is allowed. Impugned FIR No.604/2009 registered at Police Station Vaishali Nagar, Jaipur City (South) for offences u/Ss.384, 323 and 143 IPC against present petitioner is quashed.Petition allowed. *******