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2019 DIGILAW 949 (ALL)

RAJNISH SHARMA v. STATE OF U. P.

2019-04-15

SUDHIR AGARWAL

body2019
JUDGMENT : Sudhir Agarwal, J. Heard Sri T.A. Khan, learned counsel for applicants and learned AGA for State. 2. This application under Section 482 Cr.P.C. has been filed for quashing of summoning order dated 17.07.2003 as well as the entire proceedings of Misc. Case No. 127 of 2003 (Ram Autar vs. Manu Garg and Others) under Section 392 IPC, Police Station Khekara, District Baghpat, pending in the Court of Additional Chief Judicial Magistrate, Baghpat. 3. It is admitted from record that Maruti Car bearing Registration No. UP17-9696 was financed by M/s Cholamandalam Investment and Finance Company Limited (hereinafter referred to as "Company"). Under the terms of loan agreement, it is said that in case of any default, Company was entitled to take possession of vehicle in question and that has been done so. Thus, it cannot be said that possession of vehicle in question taken by Company through its agents constitute any criminal offence. 4. In Sardar Trilok Singh and Others v. Satya Deo Tripathi, (1979) AIR SC 850, Court held that financier seized the truck in question on default in payment of installment and buyer therein launched criminal prosecution for offence under Section 395 of IPC. Court considered the issue threadbare and held the dispute to be a bona fide civil dispute between the parties and quashed the prosecution holding to be undeserving fully covered by Section 482 of Cr.P.C. as to be necessary to prevent the abuse of process of Court and pertinently observed as under: - "5. We are clearly of the view that it was not a case where any processes ought to have been directed to be issued against any of the accused. On the well-settled principles of law it 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. Money must have been advanced to him and his partner by the financier on the basis of some terms settled between the parties. ... The dispute raised by the respondent was purely of a civil nature even assuming the facts stated by him to be substantially correct. Money must have been advanced to him and his partner by the financier on the basis of some terms settled between the parties. ... Even assuming that the appellants either by themselves or in the company of some others went and seized the truck on 30-7-1973 from the house of the respondent they could and did claim to have done so in exercise of their bona fide right of seizing the truck on the respondent's failure to pay the third monthly instalment in time. It was, therefore, a bona fide civil dispute which led to the seizure of the truck. ..." 5. In K.A. Mathai alias Babu and another v. Kora Bibbikutty and another, (1996) 7 SCC 212 , Court has held that in case of hire-purchase agreement, in the event of failure to make payment of installment, financier has right to resume possession even if the agreement does not contain a clause of resumption of possession, that has to be read in the agreement and financier taking possession of bus with the help of appellants No.1 and 2, no offence of theft is made out. 6. Similarly, in The Managing Director, Orix Auto Finance (India) Ltd vs. Shri Jagmander Singh & Another, (2006) 2 SCC 598 , while considering the financier's right to take possession of financed vehicle in terms of hire-purchase agreement, Court held that if agreement permits the financier to take possession of financed vehicle, there is no legal impediment on such possession being taken, though the hirer can avail statutory remedy. 7. In view of above exposition of law, the application is allowed. Impugned summoning order dated 17.07.2003 as well as the entire proceedings of Misc. Case No. 127 of 2003 (Ram Autar vs. Manu Garg and Others) under Section 392 IPC, Police Station Khekara, District Baghpat, pending in the Court of Additional Chief Judicial Magistrate, Baghpat are hereby quashed.