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2022 DIGILAW 800 (HP)

Meena v. Sanjay Kumar

2022-12-09

SATYEN VAIDYA

body2022
JUDGMENT : Satyen Vaidya, J. By way of instant petition, petitioner has prayed for quashing of Complaint No.3 of 2021, titled as Sanjay Kumar vs. Meena & others and all subsequent proceedings pending before the learned Judicial Magistrate, 1st Class, Court No.3, Mandi, H.P. 2. Brief facts necessary for adjudication of petition are that the petitioner had purchased a vehicle (Innova Crysta) for plying the same as taxi and had obtained financial assistance from AU Small Finance Bank. Petitioner entered into an agreement to sell dated 11.8.2020 with respondent, whereby the aforesaid vehicle was agreed to be transferred to respondent against total consideration of Rs. 21,44,000/-. Out of the aforesaid consideration amount, a sum of Rs. 2,30,000/- was paid to the petitioner and remaining amount of Rs. 19,14,000/- was to be paid to the financer AU Small Finance Bank in equal monthly installments of Rs. 33,000/-. Possession of the vehicle was handed over to the respondent. Allegedly, respondent defaulted in payment of installments to the AU Small Finance Bank. Petitioner re-possessed the vehicle. Before possessing the vehicle, petitioner had issued a legal notice to respondent on 5.3.2021. The notice was replied on behalf of the respondent vide reply dated 23.3.2021 and it was mentioned that as per agreement, the vehicle could be repossessed only on default of three consecutive installments. 3. Respondent filed an application before learned Chief Judicial Magistrate, Mandi under Section 156 (3) of Cr.P.C., seeking direction to the SHO, Police Station, Sadar to lodge FIR against the petitioner. The grievance of the respondent was that despite his depositing the overdue amount of Rs. 63,404/- with interest, the petitioner on 18.3.2021 had taken forcible possession of the vehicle at Shimla. Respondent had filed complaint to the police at Shimla but no action was taken. Respondent further alleged that later the vehicle was found at Manali and the respondent had made a request for handing over the vehicle to him and on his request, the vehicle was in fact handed over to him. However, on complaint of the petitioner, the vehicle was taken in possession by police and was wrongly released in favour of the petitioner. 4. However, on complaint of the petitioner, the vehicle was taken in possession by police and was wrongly released in favour of the petitioner. 4. Petitioner by way of instant petition has contended that though from perusal of contents of application, filed by respondent, no offence was made out against the petitioner, still learned Judicial Magistrate, 1st Class, Court No.3, Mandi has treated the application as complaint and has taken cognizance against the petitioner for commission of offence under Section 420 of IPC. It has further been contended on behalf of the petitioner that without admitting the commission of offence, the taking of cognizance by learned Judicial Magistrate, 1st Class, Court No.3, Mandi in aforesaid matter was without jurisdiction, as no offence was even alleged to have been committed within the jurisdiction of said Court. 5. I have heard the learned counsel for the parties and have also gone through the record carefully. 6. Perusal of application filed under Section 156 (3) of Cr.P.C. by respondent before learned trial Court reveals that reference has been made to agreement dated 11.8.2020 executed between the parties and on the basis of such agreement, respondent claimed right to possess of the vehicle. It was admitted in the application that an amount of Rs. 63,404/- had become due and payable to AU Small Finance Bank. Respondent further averred that he had received the legal notice from petitioner and thereafter he had cleared the overdue amount but despite of such clearance, the vehicle was re-possessed by petitioner at Shimla on 18.3.2021. Respondent further alleged that he had reported the matter to police at Shimla but no action was taken. It was further submitted that the respondent had found the vehicle at Manali and had made a request for handing over its possession to the petitioner. His request was acceded to but the petitioner lodged online complaint with the police and on such complaint, the police seized the vehicle at Bhunter and on the next day, the vehicle was released in favour of the petitioner. 7. Learned trial Court vide order dated 15.7.2021 treated the application of respondent as a complaint and directed the respondent to lead preliminary evidence. Respondent tendered his evidence by way of an affidavit and also placed on record a copy of agreement to sell dated 11.8.2020 as CW-1/B along with other documents. 7. Learned trial Court vide order dated 15.7.2021 treated the application of respondent as a complaint and directed the respondent to lead preliminary evidence. Respondent tendered his evidence by way of an affidavit and also placed on record a copy of agreement to sell dated 11.8.2020 as CW-1/B along with other documents. Perusal of evidence affidavit filed by respondent before learned trial Court reveals the same contents, as were contained in the application under Section 156 (3) Cr.P.C. Para-7 of the affidavit, was additionally incorporated as under:- “That the original agreement to sell for sale or purchase of the vehicle was executed at the office of Respondent No.2 AU Small Finance Bank Ltd at their office Lunapani where the deponent paid earnest money and take the possession but the documents lied in Shimla as such agreement was executed at Shimla as such oral agreement to sell and the possessory right of the vehicle was executed at the office of AU Small finance Bank Ltd. at Lunapani hence the part cause of action arose at Lunapani.” 8. Learned trial Court vide order dated 24.7.2021 took cognizance of the offence under Section 420 of IPC against the petitioner and proceeded to summon the petitioner. 9. Perusal of complaint, as also the documents, filed by the respondent before learned trial Court in evidence do not reveal the commission of offence under Section 420 IPC. There is no allegation that the petitioner had cheated the respondent and had thereby dishonestly induced him to deliver any property to the petitioner. There is also no allegation that the petitioner committed cheating and thereby dishonestly induced the respondent to alter or destroy the whole or any part of valuable security or anything which is signed or sealed or which is being converted into a valuable security. The allegation simplicitor was that the petitioner had re-possessed the vehicle on noticing default in payment of dues of the financer. It can simply be a case of violation of terms of agreement but it cannot be said to be a case of cheating and thereby dishonestly inducing the other to deliver any property to any person. The order dated 24.7.2021, passed by learned trial Court clearly is a non-speaking order. 10. It can simply be a case of violation of terms of agreement but it cannot be said to be a case of cheating and thereby dishonestly inducing the other to deliver any property to any person. The order dated 24.7.2021, passed by learned trial Court clearly is a non-speaking order. 10. Additionally, it can also be safely concluded that the material on record does not suggest the commission of any part of alleged offence within the jurisdiction of learned trial Magistrate. As per averments made in para-7 of the affidavit filed by respondent as evidence before learned trial Court, it was averred that the original agreement to sell was executed at Shimla. Copy of agreement placed on record as Ext. CW-1/B also evidences the same fact that the agreement was executed on 11.8.2020 at Shimla. The stamp paper for preparation of agreement to sell dated 11.8.2020 was purchased on the same date from District Treasury Shimla and in view of such admission and otherwise proved fact on record, the contradictory plea of respondent that the agreement was executed orally at the office of AU Small Finance Bank Ltd Lunapani in District Mandi had no meaning and could not be taken into consideration for holding that part of the offence was committed within the jurisdiction of learned Judicial Magistrate 1st Class, Mandi. 11. The jurisdiction of this Court under Section 482 Cr.P.C. though is restrictive but can always be exercised in order to stop the abuse of process of law. The continuance of the proceedings before learned trial Court in pursuance to the aforesaid orders passed by such Court will be is nothing but abuse of process of law. No prima-facie case under Section 420 of IPC is made out in the facts of the case against the petitioner. In alternative, even if such offence is presumed to have been committed, no part of it has been shown to have been committed within the jurisdiction of learned trial Court. Simply because respondent has residence within jurisdiction of learned trial Court will not vest such court with jurisdiction to proceed in the matter over which it otherwise had no jurisdiction. 12. In result, the petition succeeds. Simply because respondent has residence within jurisdiction of learned trial Court will not vest such court with jurisdiction to proceed in the matter over which it otherwise had no jurisdiction. 12. In result, the petition succeeds. The complaint No. 3 of 2021 titled Sanjay Kumar vs. Meena and others pending before learned Judicial Magistrate, 1st Class, Mandi along with order dated 24.7.2021 as also all subsequent orders passed in the aforesaid complaint are quashed and set aside in the interest of justice. Pending applications, if any, also stand disposed of.