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2021 DIGILAW 47 (JK)

Manzoor Ahmad Bhat v. Nasir Hussain Bhat

2021-03-02

SANJAY DHAR

body2021
Judgment Sanjay Dhar, J.—Petitioner has sought quashment of complaint titled Nasir Hussain Bhat vs. Mohd Sayeed Najar and others, pending in the Court of Judicial Magistrate, 1st Class, Kulgam, and the cognizance taken thereon by the learned Magistrate in terms of his order dated 21.12.2016. 2. It appears from the record that a complaint was made by respondent No.1 herein before the Court of learned Judicial Magistrate 1st Class, Kulgam (hereinafter referred to as the trial Magistrate) alleging commission of offences under Sections 379, 417, 418, 420, 560 RPC read with Section 120-B RPC by petitioner herein as well as by respondents 2 and 3. As per the contents of complaint, the respondent No.1 had purchased vehicle bearing No.JK03D-9520 from respondent No.2 on the basis of an affidavit dated 12.11.2014 executed by respondent No.2. Respondent No.1, the complainant, alleges that he had paid the consideration amount of Rs.6,00,000/- to respondent No.2 and at the time of entering into the transaction, the respondent No.2 had assured the respondent No.1 that the vehicle in question is not hypothecated to any financial institution. It is alleged that about 20 days back, when respondent No.1 was plying his aforesaid vehicle, he was apprehended by petitioner and respondent No.3 and his aforesaid vehicle was taken away without any rhyme and reason. On the next day, when respondent No.1 on the asking of the accused persons approached Jammu and Kashmir Bank, Cheeni Chowk Anantnag, he saw all the three accused sitting over there but they refused to return the vehicle to him and he was told that the vehicle in question is hypothecated to Jammu and Kashmir Bank, Cheeni Chowk Branch. It is further alleged that the respondent No.2 un-necessarily abused him in presence of other two accused. 3. Upon presentation of the aforesaid complaint before the learned Magistrate, it appears that the preliminary statement of the complainant and one of his witnesses was recorded, where after the learned Magistrate decided to resort to enquiry under Section 202 of the Code of Criminal Procedure directing SHO, P/S, Kulgam, to undertake the enquiry. The trial court record shows that the report of enquiry was submitted by the police but the learned Magistrate, feeling dissatisfied with the enquiry conducted by the police, directed the complainant to produce more witnesses. 4. The trial court record shows that the report of enquiry was submitted by the police but the learned Magistrate, feeling dissatisfied with the enquiry conducted by the police, directed the complainant to produce more witnesses. 4. It appears that preliminary statements of two more witnesses were recorded by the learned Magistrate, where after order dated 09.03.2016 came to be passed whereby cognizance of offences under Section 379, 420 RPC read with 120-B RPC was taken against the accused persons including the petitioner herein and they were directed to be summoned by issuance of bailable warrants. It further appears that on an application filed by the complainant before the learned trial Magistrate an order came to be passed on 21.12.2016 directing the petitioner herein as well as respondent No.3 not to dispose of /alienate the vehicle till the disposal of main case. This order as well as the complaint including the proceedings initiated thereon are under challenge by way of this petition before this Court. 5. It is the case of the petitioner that the vehicle, which is subject matter of the complaint, stands registered in the name of respondent No.2 who had taken loan from the Jammu & Kashmir Bank and the vehicle is hypothecated to the said Bank in terms of hire purchase agreement executed by the registered owner with the Bank. According to the petitioner, in terms of the covenants of the agreement, the Bank is well within its rights to take over possession of the vehicle in question in case of default in repayment of installments of loan. The respondent No.2, according to the petitioner, defaulted in repayment of loan which compelled the petitioner, who happens to be the Branch Manager of J&K Bank Ltd. Branch Cheeni Chowk, to take over possession of the vehicle in question. It is further case of the petitioner that so far as the transaction between the petitioner and respondent No.2 is concerned, the Bank has nothing to do with that and it was for the complainant to see as to whether the vehicle which he has purchased is free from all encumbrances. On these grounds, it is urged that the learned Magistrate has erred in taking cognizance of the complaint as against the petitioner as well as in passing the impugned order directing the petitioner Bank not to dispose of/alienate the said vehicle. 6. On these grounds, it is urged that the learned Magistrate has erred in taking cognizance of the complaint as against the petitioner as well as in passing the impugned order directing the petitioner Bank not to dispose of/alienate the said vehicle. 6. I have heard learned counsel for the parties and perused the pleading and record of the trial court. 7. Learned senior counsel, appearing for the petitioner, has contended that the petitioner being an employee of the Jammu and Kashmir Bank has acted only in compliance to the directions of its employer and reclaimed the possession of the hypothecated vehicle in accordance with the terms and conditions of hire purchase agreement which the respondent No.2 had executed with the bank. On this basis, it has been contended that no case of theft, as alleged by the complainant, in the complaint can be conceived against the petitioner. 8. So far as the offence of cheating is concerned, the learned senior counsel has submitted that if at all the complainant has been subjected to cheating, neither the Bank nor its employees are responsible for it as the transaction between the complainant and respondent No.2, the registered owner of the vehicle in question, is entirely a private affair between them with which petitioner has no concern. 9. Learned counsel for the respondent No.1, on the other hand, has contended that the contents of the complaint and the preliminary statements of the witnesses recorded by the trial court, prima facie, make out offences under Section 379, 420 RPC read with 120-B RPC against all the accused including the petitioner herein. He has further submitted that a financial institution cannot take recourse to unlawful means to recover outstanding loan amount by taking resort to forcible possession of hypothecated assets. In this regard, the learned counsel has relied upon the judgments of the Supreme Court reported in (2007) 2 SCC 711 and (2012) 1 SCC 01. 10. Learned counsel for the respondent No.1 has further contended that the question whether any offence has been committed by the petitioner and whether he was in league with main accused i.e. respondent No.2, can be determined only after trial of the case and not at this stage. Therefore, neither the complaint nor the proceedings before the trial Magistrate can be quashed at this stage. 11. Therefore, neither the complaint nor the proceedings before the trial Magistrate can be quashed at this stage. 11. It is a settled law that a Magistrate before issuing the process against the accused has to be satisfied on the basis of the material before it that there are grounds for proceeding against the accused, inasmuch as the offences complained of are, prima facie, made out against the accused. In this regard, it has to be seen whether in the instant case, the contents of the complaint, that was lodged by respondent No.1 before the learned trial Magistrate, do disclose commission of any offence against the petitioner herein. 12. A perusal of the complaint reveals that primary grievance of the respondent No.1 is against the respondent No.2, the registered owner of the vehicle in question. It is admitted by the respondent No.1 in the complaint that he had purchased the vehicle in question for a consideration of Rs.6.00/- lacs on the basis of an affidavit executed by respondent No.2, which means that the respondent No.1/complainant is not the registered owner of the said vehicle. It is also admitted by respondent No.1 in the complaint that he was told by the accused persons including the petitioner herein that the vehicle in question is hypothecated to Jammu and Kashmir Bank Ltd. and it is for this reason that they had taken over possession of the vehicle in question. In view of this position, the learned Magistrate rightly, before issuing process against the accused persons, thought it proper to go for enquiry in terms of Section 202 of Cr.P.C. The report of enquiry was received by the learned Magistrate from SHO, P/S Kulgam. 13. A perusal of the report of enquiry, which is on record of the trial court, shows that it has been brought to the notice of learned Magistrate that the vehicle in question had been purchased by respondent No.1 after taking a loan of Rs.4.00/- lacs from the Jammu and Kashmir Bank Ltd. Cheeni Chowk, Anantnag. The report of enquiry is accompanied by a letter of Business Unit Head Jammu and Kashmir Bank Ltd. Cheeni Chowk, Anantnag, as well as statement of account pertaining to loan account of respondent No.2, which shows that the loanee had committed default in repayment of loan amount. The report of enquiry is accompanied by a letter of Business Unit Head Jammu and Kashmir Bank Ltd. Cheeni Chowk, Anantnag, as well as statement of account pertaining to loan account of respondent No.2, which shows that the loanee had committed default in repayment of loan amount. It was also brought to the notice of learned Magistrate by way of the aforesaid enquiry report and the documents attached thereto that the possession of vehicle in question was taken over by the Bank in terms of the covenants of hypothecation agreement executed by the registered owner with the Bank. The report of the SHO categorically goes on to state that the respondent No.1 has, without ensuring that the vehicle which he had purchased is clear from all encumbrances, taken the risk of purchasing the same on the basis of an affidavit and, as such, he has no cause of action against the Bank and its officials. 14. In spite of the aforesaid record, learned trial Magistrate without giving any cogent reason for discarding the aforesaid enquiry report, proceeded ahead to record preliminary statements of more witnesses of the complainant and issued process against the accused including the petitioner herein. Even the complainant and his witnesses in their preliminary statements have stated nothing material against the petitioner or any other Bank official i.e. respondent No.3. According to them, it is the respondent No.2 who represented to respondent No.1 that the vehicle in question is not hypothecated to any bank and it is he who gave false representation to respondent No.1, who in turn relying upon the same paid an amount of Rs.6.00/- lacs to respondent No.2. Thus even the evidence led by the complainant before the learned Magistrate does not make out any offence against the petitioner and respondent No.3. 15. The Supreme Court in State of Haryana & Ors Vs. Ch. Bhajan Lal & Ors, AIR 1992 SC 604 , has illustrated the cases where High Court in exercise of its powers under Section 482 of the Cr.P.C. is empowered to quash the criminal proceedings. One of such illustrations is the case where no offence is made out against the accused from the contents of a complaint/FIR and the material in support thereof. One of such illustrations is the case where no offence is made out against the accused from the contents of a complaint/FIR and the material in support thereof. The instant case falls squarely in the aforesaid illustration as the material on record before the learned Magistrate as well as the allegations made in the complaint filed by respondent No.1 do not disclose commission of any offence by the petitioner and respondent No.3. Therefore, the complaint as well as the proceeding emanating there from including the order dated 21.12.2016, whereby the petitioner has been directed not to dispose of the vehicle in questions, deserves to be quashed. 16. Accordingly, the complaint and the order of taking cognizance, so far it pertains to petitioner and respondent No.2, are quashed and consequently order dated 21.12.2016 shall also stand quashed. The complaint and the proceedings shall, however, continue as against the respondent No.2. 17. The trial court record along with a copy of this order be sent back.