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2018 DIGILAW 744 (JK)

Amrik Singh v. State of J&K

2018-09-28

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. This petition under Section 561-A Cr.P.C. seeks quashing of the Challan No. 168 of 2016 dated 27.10.2016 as well as the order dated 11.07.2017 passed by the learned Judicial Magistrate 1st Class (Sub-Judge) Jammu in case titled State vs. Amrik Singh and Others, by virtue of which the petitioners have been charged under Sections 382/506/34 RPC as also the criminal proceedings launched subsequent to the filing of the challan against the petitioners. 2. The brief facts necessary for adjudication of the petition are that on 21st of July, 2016 one Daljeet Singh S/o Harbans Singh R/o H. No. 168, Ward No. 3, Govind Pura Satwari Cantt. Jammu filed a complaint in the Court of Chief Judicial Magistrate, Jammu. The learned Chief Judicial Magistrate, Jammu forwarded the complaint in original to Station House Officer, Police Station, Trikuta Nagar, Jammu under Section 156(3) Cr.P.C. for investigation under law. The said complaint was investigated and the petitioners were allegedly shown to have committed offence under Section 382/506/34 RPC. 3. Learned counsel for the petitioners states that according to the final report submitted before the Court under Section 173 Cr.P.C. the case set out by the complaint is that the complainant filed a complaint under Section 156(3) Cr.P.C. seeking direction to SHO Police Station, Trikuta Nagar to register FIR under Sections 323, 341, 379, 504, 506 and 109 RPC against the accused on the allegation that on 06.07.2016 at around 12.30 PM, the complainant was taking his Truck No. JK02U-1055 from Transport Nagar Yard No. 1 Narwal Jammu to his house, one person not known to the complainant, but the complainant can identify him, came in front of the Truck and gave signal to stop the Truck and complainant on his request stopped the truck. The said person and the accused persons 2 and 3, who are well known to the complainant immediately came in driver side seat and caught the complainant from the collar of the shirt, after pulling him out, all the three persons, one unknown person and accused No. 2 and 3 started beating the complainant with fist and blow and nobody turned up to save the complainant from the hands of the said persons and that the complainant ran away from the place of occurrence to save his life, the said accused persons in connivance with each other forcibly took away the truck of the complainant to unknown place. The Police Station, Trikuta Nagar, Jammu later on registered the FIR under Section 139 of 2016 dated 26.07.2016 against the petitioners under Section 341, 323, 379, 504, 506, 109 RPC. Subsequent upon registration of FIR, the concerned Police authorities have presented the challan under Sections 382/506/34 RPC. 4. Learned counsel for the petitioners further states that right from the date of complainant having taken loan, no installment was paid by him but in order to avoid payment of the loan amount raised by him towards getting his vehicle financed, the complainant in conspiracy with the police authorities have got false and frivolous case registered against accused persons motivated with the ulterior motive to distract the payment of loan amount to the finance company and rather to avoid payment of the same by keeping the finance as well as other persons involved in false and frivolous police case and the present challan is the result of the conspiracy hatched by the complainant to avoid payment of the loan amount. It is stated that the complainant developed malice against the petitioners and has taken into his head to settle score with the petitioner No. 1 who had financed the vehicle of the complainant and the off-shoot of the present challan is the result of the conspiracy hatched by the complainant in connivance with the police authorities and the false and frivolous prosecution is nothing but have been so launched against the petitioner to wreck vengeance and is thus nothing but abuse of the process of law. It is stated that petitioners sought their discharge from the prosecution of the case on number of grounds by pleading before the Trial Court, which include that the criminal prosecution launched against the petitioners is motivated and intended just to involve the petitioners in the commission of the crime when admittedly, the petitioners were not involved in commission of crime nor they have indulged in any crime but the complainant who had launched personal vendetta against the petitioners to distract and avoid making the payment of the loan amount. It is further stated that the allegations made in the charge-sheet coupled with the statement of the witnesses even if taken at their face value and accepted in entirely do not disclose the essential ingredients of the offences alleged against the petitioners and that there is nothing in the challan which prima-facie or either remotely connect the petitioners with the commission of the crime. 5. Learned counsel for the petitioners submits that vide order dated 11.07.2017, the learned Judicial magistrate 1st Class (Sub-Judge) Jammu framed the charges against the petitioners under Sections 382/341/506/34 RPC and the prosecution has been directed to lead evidence. It is stated that despite having filed written arguments by the petitioners, the trial Court has not at all discussed the defense raised in the written arguments. 6. It is stated that despite having filed written arguments by the petitioners, the trial Court has not at all discussed the defense raised in the written arguments. 6. The petitioners have filed the instant writ petition challenging the impugned challan/ order dated 27.10.2016 and 11.07.2017 respectively on the grounds that the allegations made in the FIR and in the charge sheet resulting into filing of the challan against the petitioners are absurd and there was no sufficient ground for proceedings against the petitioners as the same is manifestly attended with mala-fide and the proceedings have been maliciously instituted so as to avoid making the payment of the Loan money raised by the complainant for financing his vehicle; that the allegations made against the petitioners in the charge sheet and the statement of the witnesses recorded if taken on their face value and accepted in their entirety do not prima-facie disclose the essential ingredients of the offences alleged against the petitioners; that the allegations made against the petitioners is a result of conspiracy hatched by the complainant to falsely involve the petitioners in false and frivolous case and to tarnish the image of the petitioners; that the challan and the statement of the witnesses as recorded under Section 161 Cr.P.C. by police further show that none of the so called eye-witnesses are speaking the truth and rather have connived with the complainant to falsely involve the petitioners in commission of the alleged crime; that the complainant in his complaint under Section 156(3) Cr.P.C. has alleged the occurrence to have taken place at 12.00 pm and in his statement under Section 161 Cr.P.C. he has shown occurrence to have taken place at 11.00 am and further in his complaint, the complainant has mentioned that none came on spot, then how eye witnesses cited in the challan relied upon are claimed to be present on spot. 7. Learned counsel for the petitioners submits that whatever the prosecution has alleged in the challan, it does not fulfill the basic ingredients of the offence for which the petitioners have been charged by the court below. 7. Learned counsel for the petitioners submits that whatever the prosecution has alleged in the challan, it does not fulfill the basic ingredients of the offence for which the petitioners have been charged by the court below. It is stated that the police authorities have acted in undue haste in registering the FIR against the petitioners and then filing the charge-sheet in the court of law and the respondent No. 2 has not held appropriate preliminary enquiry in the matter particularly when the allegations so contained in the complaint are so absurd, vague, unfounded. There was no justification in registration of the case, commencing of the investigation, filing of the charge sheet and framing of charges by the trial Court is also unreasoned. 8. It is pertinent to mention that pursuant to order dated 23.05.2018, petitioner No. 1 has filed supplementary affidavit seeking placing on record certain documents viz. copy of Hire purchase agreement dated 23.05.2011 executed between the complainant and M/s J.H. Finance Corporation; copy of voucher executed by the complainant evidencing the loan raised and payment received by the complainant to the extent of Rs. 1,00,000/- upon his vehicle bearing No, JK02U 1055; copy of the certificate issued by the office of RTO Jammu certifying that vehicle No. JK02U 1055 of Daljeet Singh S/o Harbahs Singh R/o Govind Pura Satwari is under hypothecation agreement with M/s JH Finance Corporation; and income Tax returns for the assessment years 2011-12, 2016-17 and 2017-18 reflecting the name of M/s JH Finance Corporation as assesse from the year 2011-12 onwards. 9. Supporting his contention, learned counsel for the petitioners has placed reliance upon the Supreme Court decisions, reported in Sardar Trilok Singh and Ors. vs. Satya Deo Tripathi, 1979 AIR SC 850, Charanjit Singh Chadha and Ors. vs. Sudhir Mehra, 2001 AIR (SC) 3721and Anup Sarmah vs. Bhola Nath Sharma and Ors. 2012 (4) ACC 697 . 10. I have considered the rival contentions. Admittedly in present case, petitioner no. 1 is financier and running finance company under the name and style M/s J.H. Finance Corporation, having office at Transport Nagar Jammu; petitioner no. 1 is one of the partners in said finance company; and complainant took loan of Rs. 1 lakh for purchase of old Truck no. I have considered the rival contentions. Admittedly in present case, petitioner no. 1 is financier and running finance company under the name and style M/s J.H. Finance Corporation, having office at Transport Nagar Jammu; petitioner no. 1 is one of the partners in said finance company; and complainant took loan of Rs. 1 lakh for purchase of old Truck no. JKO2U-1055 from finance company; it is also case of complainant that a Hire Purchase agreement was executed between him and financer on 23.5.2011; RTO office has also endorsed this fact in R/C; complainant was required to pay this amount along with interest Rs. 9700/- pm which he failed and so possession of truck was taken back by the financer. 11. Now question arises as to whether on these facts offences under section 382/506/34 can be made out. In Sardar Trilok Singh and Ors. vs. Satya Deo Tripathi, 1979 AIR SC 850 Apex court has held that in Hire Purchase agreement, if financer takes back motor vehicle due to default in payment of installment, no process could be issued against the financer u/s 395 IPC on the basis of exaggeration version of the complainant. In Charanjit Singh Chadha and Ors. vs. Sudhir Mehra, 2001 AIR (SC) 3721 the Apex Court has held that re-possession of vehicle on hire purchase agreement does not amount to criminal offence of 379 IPC. In Anup Sarmah vs. Bhola Nath Sharma and Ors. 2012 (4) ACC 697 the apex has held as under:- “We have considered the rival submissions raised by the learned counsel for the parties and perused the records. 5. In Trilok Singh & Ors. v. Satya Deo Tripathi, AIR 1979 SC 850 , this Court examined the similar case wherein the truck had been taken in possession by the financier in terms of hire purchase agreement, as there was a default in making the payment of instalments. A criminal case had been lodged against the financier under Sections 395, 468, 465, 471, 12-B/34, I.P.C. The Court refused to exercise its power under Section 482, Cr.P.C. and did not quash the criminal proceedings on the ground that the financier had committed an offence. However, reversing the said judgment, this Court held that proceedings initiated were clearly an abuse of process of the Court. The dispute involved was purely of civil nature, even if the allegations made by the complainant were substantially correct. However, reversing the said judgment, this Court held that proceedings initiated were clearly an abuse of process of the Court. The dispute involved was purely of civil nature, even if the allegations made by the complainant were substantially correct. Under the hire purchase agreement, the financier had made the payment of huge money and he was in fact the owner of the vehicle. The terms and conditions incorporated in the agreement gave rise in case of dispute only to civil rights and in such a case, the Civil Court must decide as what was the meaning of those terms and conditions. 6. In K.A. Mathai alias Babu & Anr. v. Kora Bibbikutty & Anr. (1996) 7 SCC 212 , this Court had taken a similar view holding that in case of default to make payment of installments financier had a right to resume possession even if the hire purchase agreement does not contain a clause of resumption of possession for the reason that such a condition is to be read in the agreement. In such an eventuality, it cannot be held that the financier had committed an offence of theft and that too, with the requisite mens rea and requisite dishonest intention. The assertions of rights and obligations accruing to the parties under the hire purchase agreement wipes out any dishonest pretence in that regard from which it cannot be inferred that financier had resumed the possession of the vehicle with a guilty intention. 7. In Charanjit Singh Chadha & Ors. v. Sudhir Mehra, JT 2001 (7) SC 226 : (2001) 7 SCC 417 , this Court held that recovery of possession of the vehicle by financier-owner as per terms of the hire purchase agreement, does not amount to a criminal offence. Such an agreement is an executory contract of sale conferring no right in rem on the hirer until the transfer of the property to him has been fulfilled and in case the default is committed by the hirer and possession of the vehicle is resumed by the financier, it does not constitute any offence for the reason that such a case/dispute is required to be resolved on the basis of terms incorporated in the agreement. The Court elaborately dealt with the nature of the hire purchase agreement observing that in a case of mere contract of hiring, it is a contract of bailment which does not create a title in the bailee. However, there may be variations in the terms and conditions of the agreement as created between the parties and the rights of the parties have to be determined on the basis of the said agreement. The Court further held that in such a contract, element of bailment and element of sale are involved in the sense that it contemplates an eventual sale. The element of sale fructifies when the option is exercised by the intending purchaser after fulfilling the terms of the agreement. When all the terms of the agreement are satisfied and option is exercised a sale takes place of the goods which till then had been hired. While deciding the said case, this Court placed reliance upon its earlier judgments in M/s. Damodar Valley Corporation v. State of Bihar, AIR 1961 SC 440 , Instalment Supply Pvt. Ltd. & Anr. v. Union of India & Ors. AIR 1962 SC 53 , K.L. Johar & Co. v. Deputy Commercial Tax Officer, Coimbatore, AIR 1965 SC 1082 and Sundaram Finance Ltd. v. State of Kerala & Anr. AIR 1966 SC 1178 . 8. 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 latter. Thus, in case the vehicle is seized by the financier, no criminal action can be taken against him as he is re-possessing the goods owned by him. 9. If the case is examined in the light of the aforesaid settled legal proposition, we do not see any cogent reason to interfere with the impugned judgment and order. The petition lacks merit and, accordingly, dismissed.” 12. In view of above law on the point, this petition is allowed; order dated 11.07.2017 passed by Court below thereby framing charges u/s 382/506/34 RPC against petitioners herein, is quashed and challan no. 164 of 2016 pending before Sub-Judge, Jammu, under sections 382/506/34 RPC, is dismissed.