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2022 DIGILAW 1267 (JHR)

Rajeev Kumar Sinha v. State of Jharkhand

2022-11-01

NAVNEET KUMAR

body2022
ORDER : 1. Learned counsels for the petitioner and learned Spl. P.P. for the State are present. 2. No one has appeared for the O.P. No. 2. 3. Heard the parties present. 4. Learned counsel appearing on behalf of the petitioner has submitted that this Cr.M.P. has been filed for quashing the entire criminal proceeding in connection with C.P. Case No. 1863 of 2008 including the order taking cognizance dated 01.12.2010 by which the learned Judicial Magistrate 1st class, Dhanbad passed the summoning order finding prima facie case for the offence punishable u/s 403 and 417 of IPC against the several accused persons including the petitioner Rajeev Kumar Sinha as one of them. 5. It has been submitted on behalf of the petitioner that the O.P. No. 2/complainant had filed one complaint vide Complaint Case No. 1863/2008 and briefly pointing out the allegations as set out in the said Complaint that the complainant/O.P. No. 2 was borrower of a financial institution namely IndusInd Bank for the purchase of a Tempo under Hire Purchase Agreement after getting finance from the said bank and this petitioner, at the relevant point of time, was the In-charge (legal) of the said bank and joined the organization in August 2006 and thereafter he left the service in July 2009. The complainant alleged in the aforesaid complaint petition that the said bank had financed for the purchase of the tempo on the monthly installment of Rs. 2,900/- and the complainant had deposited a sum of Rs. 60,000/- as advanced Hire money and Rs. 5,000/- towards the finance charges and after being financed on 11.03.2006 the complainant took the tempo. And thereafter the complainant deposited monthly installment for the 2-3 months in one time which the accused persons accepted and thus he had deposited total amount to a sum of Rs. 87,000/- through various monthly installments and after one year all of a sudden, the accused persons snatched the vehicle from the complainant driver of the vehicle without prior notice and information. It has further been alleged by the complainant that when complainant went to the finance company after seizing vehicle with a sum of Rs. 15,000/- for depositing the due hire amount of installment and for the return of the hired vehicle, the accused persons asked to deposit the entire amount otherwise vehicle would not be returned to the complainant O.P. No. 2. 15,000/- for depositing the due hire amount of installment and for the return of the hired vehicle, the accused persons asked to deposit the entire amount otherwise vehicle would not be returned to the complainant O.P. No. 2. It has further been alleged that the complainant was asked to deposit a sum of Rs. 99,000/- which could not be paid by the complainant due to financial constraints and as such the complainant alleged that Rs. 65,000/- (Rupees sixty five thousand) was cheated by accused person and also the new Tempo as the complainant had purchased the tempo under Hire-Purchase agreement for his unemployed son but after seizure of the tempo his son still got unemployed, so complainant was suffering huge loss due to accused person and lost Rs. 65,000/- (Rupees sixty five thousand) also. It has also been alleged by the complainant that at the time of issuing tempo he was deliberately induced with an intention to deceive the complainant fraudulently by taking possession of the Tempo as the accused person had knowledge that the complainant had no money to pay on time to meet the demand if they seized the Tempo. It has further been stated by the complainant in the said complaint petition that it was surprised to the complainant when the tempo was seized by the accused person because accused persons breached the verbal contract, which was agreed upon by the accused person before receiving the tempo that the complainant may make the payment of dues hire monthly installment at a time in the crisis period and as such it was alleged by the complainant that the terms of the agreement and the provisions of the Hire - Purchase Act has been violated by the accused persons by mentioning several provisions of the terms and conditions of the agreement. 6. The learned counsel appearing for the petitioner submitted that the petitioner has been falsely implicated in this case as there was no question of any cheating or any misappropriation of amount/fund and admittedly it is a case of payment /or repayment of loan amount arising out of Hire-Purchase agreement between the complainant and the accused persons. 6. The learned counsel appearing for the petitioner submitted that the petitioner has been falsely implicated in this case as there was no question of any cheating or any misappropriation of amount/fund and admittedly it is a case of payment /or repayment of loan amount arising out of Hire-Purchase agreement between the complainant and the accused persons. It has further been contended on behalf of the petitioner that there was legal recourse in the civil proceeding and it was not a case of the criminal proceeding and this petitioner being the in-charge of the legal cell of the financing bank at the relevant point of time has no role to play in the commission of the offence if any alleged against him and therefore it has been urged on behalf of the petitioner that the impugned order is bad in law and fit to be quashed. 7. It appears from the record that O.P. No. 2 has entered into appearance through vakalatnama but no one has appeared on behalf of the O.P. No. 2 to argue and assist this Court on behalf of O.P. No. 2. 8. The learned Spl. P.P. appearing on behalf of the State (O.P. No. 1) did not controvert the fact that it was a case for the sale and purchase of the tempo between both the parties vide Hire Purchase agreement under which the O.P. No. 2 took a tempo by getting the same financed by way of loan from the IndusInd Bank. It has further been submitted on behalf of the State that the allegations against the petitioner was that he was one of the officers of the said Bank as legal executive and when the complainant/O.P. 2 defaulted in the payment of the loan amount then it has been alleged by the complainant/O.P. 2 that the vehicle was seized by the financing Bank without notice and information and as such it has been alleged that the petitioner being the legal executive committed the offence of cheating and dishonest misappropriation of property within the meaning of sections 403 and 417 of the IPC. 9. Having heard the parties and perused the record of the case. 10. It is admitted case of the both the parties that the complainant O.P. No. 2 took the Bajaj Tempo under the Hire Purchase Agreement by getting finance from the IndusInd Bank. 9. Having heard the parties and perused the record of the case. 10. It is admitted case of the both the parties that the complainant O.P. No. 2 took the Bajaj Tempo under the Hire Purchase Agreement by getting finance from the IndusInd Bank. In this regard an agreement was executed between the complainant and the said Bank as Hire and Purchase agreement. It is also admitted that as per the terms and conditions of the agreement monthly installment was to be paid in order to repay the loan amount. It appears that the complainant did not comply the same and defaulted in the payment of monthly installment which is an admitted fact as evident from the complaint itself. Then the said vehicle Tempo was alleged to have been taken away by the said financer IndusInd Bank. 11. In view of aforesaid admitted facts it is manifest that the petitioner was the legal Executive of the IndusInd Bank at the relevant point of time. In the entire complaint petition, there is not even the slightest allegation of either cheating or dishonest misappropriation of property attributed against this petitioner in order to make out the offences of cheating or dishonest misappropriation of property within the meaning of sections 403 or 417 of the IPC against this petitioner. Further entire dispute between the parties arose under hire purchase agreement such as financing of Bajaj Tempo, payment/repayment of the loan amount seizure of vehicle, issuance of notice etc. under the Hire Purchase agreement which has been admittedly arrived at between the parties. Therefore the question as to who has violated the terms and conditions of the Hire Purchase agreement can be determined and ascertained by a proper authority/court of law in a civil proceedings as per the terms and conditions of the said agreement and not in a criminal proceedings in order to hold the guilt of the wrong doer for the offence punishable under sections 403 or 417 of the IPC. There is a claim and counter claim of the parties under the said agreement under which either it is said that the bank has acted upon as per the terms and conditions of the agreement or the bank has violated the terms and conditions of the hire purchase agreement and all these disputes can be resolved by a competent authority/court of law in accordance with terms and conditions of the agreement. At one hand it has been claimed by the petitioner that the O.P. No. 2 had breached the terms and conditions of the Hire Purchase agreement therefore in exercise of the rights conferred with the financer, the vehicle was reposed and vide notice dated 25.08.2008 it was intimated to the complainant about the commencement of the arbitral proceedings as per the terms and conditions of the Hire purchase agreement for the recovery of arrears of outstanding and the arbitration proceeding was commenced from 26.09.2008 and thereafter vide award dated 11.11. 2008 passed by sole Arbitrator, the complainant was held liable for payment of Rs. 1,00,733 (Rupees one lakh seven hundred thirty three) and the copy of the said award has also been annexed along with the main petition of the Cr.M.P. which is Annexure-3. On the other hand the from the perusal of the complaint/S.A. of the complainant Govind Goshwami it is manifest that he had purchased a tempo after getting financed but he did not deposit the installment in three months and the said Bank (the financer) snatched the tempo from the complainant in utter violation of sections 18 and 20 of Hire purchase Act without any notice and information. Thus all the aforesaid claims and counter claims of the parties are of civil nature arising out of the admitted Hire-Purchase Agreement between the parties and to be decided in a civil proceedings. The correctness and genuineness of the claims and counter claims as to who has violated the terms and conditions cannot be decided in a criminal proceedings for the offences punishable sections 403 or 417 of the IPC. 12. In this view of the matter it is well founded that it is a civil nature of dispute for payment and repayment of loan amount arising out of the agreement and no offences u/s 403 and 417 of IPC are made out. From the bare perusal of the complaint petition it is apparent that there are only general and omnibus allegations against the present petitioner. The complainant has assigned no specific role played by the petitioner in the alleged occurrence. Mere mentioning of sections is not the end of all matter. Rather it is required that the particulars of offence committed by each and every accused and role played by each and every accused in committing such offence has to be brought to the notice in clear terms. Mere mentioning of sections is not the end of all matter. Rather it is required that the particulars of offence committed by each and every accused and role played by each and every accused in committing such offence has to be brought to the notice in clear terms. For constituting an offence under section 403 of IPC the essential ingredients namely (a) the subject matter of offence is movable property, (b) it belonged to the complainant, (c) the accused misappropriated or converted to his own use of the said property and (d) the accused did this dishonestly. From the complaint petition it is clear that there was no specific allegation against the petitioner that he had taken away the vehicle in question from the complainant with dishonest intention. Similarly for constituting an offence under section 417 of the IPC, the essential ingredients are (a) deception of the complainant (b) the accused fraudulently or dishonestly induced the complainant, (c) he did so for delivery of some property either to the accused or some other person, (d) the accused intentionally induced the complainant to do or to omit to do anything which he would not do or omit to do if he was not so deceived and (e) which act or omission is caused or is likely to cause damage or harm to that person in body, mind, reputation or property. In the present case even if the entire prosecution story is taken to be true no offence under either under section 403 or under section 417 of the IPC is made out against the petitioner. The question as to whether the financer Bank has repossessed in terms of the right conferred upon the financer as per the terms and conditions of the Hire-Purchase Finance Agreement or not is to be adjudicated and determined by a competent authority in a civil proceeding and this cannot be decided in a criminal court of law for the offences punishable under sections 403 or 417 of the IPC. Hence it is worthy to mention that no offences under sections 403 or 417 of the IPC are made out against this petitioner. Hence it is worthy to mention that no offences under sections 403 or 417 of the IPC are made out against this petitioner. The learned court below did not apply its judicial mind and passed the impugned order in a sweeping manner simply mentioning the sections 403 and 417 of the IPC without discussing the allegations made out prima-facie against the petitioner for constituting the offences under sections 403 or 417 of the IPC. 13. In the backdrop the impugned order dated 01.12.2010 is bad in law and it is the abuse of the process of a criminal proceeding. 14. Accordingly, the entire criminal proceedings including the impugned order 01.12.2010 etc. passed by the learned Judicial Magistrate, 1st class, Dhanbad against this petitioner Rajeev Kumar Sinha in Complaint Case No. 1863/2008 is quashed and this Cr.M.P. is allowed.