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2023 DIGILAW 610 (JHR)

Om Prakash Singh v. State of Jharkhand

2023-05-02

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Namit Kumar, learned counsel for the petitioner Mr. Sunil Kumar Dubey, learned counsel for the State and Mr. Prabir Kumar Chatterjee, learned counsel for the O.P. No. 2. 2. The petitioner has filed this application for quashing the entire criminal proceeding in connection with Govindpur P.S. Case No. 212 of 2010, corresponding to G.R. Case No. 1952 of 2010 arising out of C.P. Case No. 908 of 2010, pending in the Court of learned Judicial Magistrate, Ist Class, Dhanbad. 3. Initially a complaint being C.P. Case No. 908/2010 was filed which was converted into F.I.R. being Govindpur P.S. Case No. 212 of 2010 alleging therein that the Complainant/Informant (O.P.No. 2) has purchased a BOLERO vehicle (bearing Registration No. JH-10-S/0401 & Engine No.- G.A. 94 NO-51076, Chesis No. MAIPLGAK9247 & Model 2523CC) on 23.01.2009 and paid Rs.01,82,221/- only to the Distributer of the said vehicle namely Auto Planate Industry Pvt. Ltd., Dhanbad and availed finance facility of the rest amount from M/s Mahindra & Mahindra Financial Services Limited, Dhanbad Branch, in which petitioner was employed as a Manager. It was further alleged that the Complainant/O.P. No. 2 had to pay total amount of Rs.05,65,500/only for the purchase of the said vehicle in which the 1st EMI of Rs.12,120/- only was paid by him on the very same day on 23.01.2009. It was further alleged that the Complainant/O.P. No.- 2 had paid Rs.60,150/- only towards 5-EMI within time. It was further alleged that in between 30.06.2009 & 01.07.2009 the said BOLERO vehicle of the Complainant/O.P. No.- 2 was stolen and after search when it was not found then the information was given to the Govindpur P.S. bearing Case No.- 175/09 about the said incidence. It was further alleged that Complainant/O.P. No.- 2 has given information to the D.T.O. Dhanbad, Local officials of M/s Mahindra & Mahindra Financial Services Ltd. and Insurance Company also namely Bajaj Allianz Insurance Company from which the vehicle was insured. It has further alleged that petitioner's Company has taken the payment of Rs.4,95,646/- only from Insurance company on 01.10.2009 and after proper calculation, petitioner's Company is ready to pay Rs.21,677/- only to the complainant/O.P. No.- 2 as full & final payment amount. It was further alleged that accordingly petitioner’s company has betrayed the complainant/informant/O.P. No. 2 and by playing fraud taken entire amount. Thus, the said F.I.R. has been instituted. 4. Mr. It was further alleged that accordingly petitioner’s company has betrayed the complainant/informant/O.P. No. 2 and by playing fraud taken entire amount. Thus, the said F.I.R. has been instituted. 4. Mr. Namit Kumar, learned counsel for the petitioner submits that the complainant/O.P. No.2 had purchased a Bolero vehicle bearing Registration No. JH-10-S/0401 on 23.01.2009 and availed finance facility from the petitioner’s company namely, M/s Mahindra & Mahindra Financial Services Limited for its purchase after executing a Loan Agreement. He further submits that total cost of the said vehicle was Rs. 05,50,301/- and the loan of Rs. 3,90,000/- was granted in favour of the O.P. No.2 by the petitioner’s company for the purchase of the said vehicle. The complainant/O.P. No.2 paid down payment to the tune of Rs. 1,82,221/-. He submits that the E.M.I. was fixed in 47 installement however, O.P. No.2 paid only 5 installment. He submits that the said vehicle of the complainant was stolen in between 30.06.2009 & 01.07.2009 and in view of that M/s Mahindra & Mahindra Financial Services Limited has received a sum of Rs. 4,95,646/- from the insurer of the said vehicle namely, Bajaj Allianz General Insurance Company Ltd. He further submits that petitioner requested the O.P. No. 2 to collect the refund amount of Rs. 21,677/- but the O.P. No. 2 did not turn up to take the differentiated amount of the vehicle. He further submits that the wife of the O.P. No. 2 is a police official and the said stolen vehicle has been released in favour of the O.P. No.2 and the said vehicle is being used by the O.P. No.2. On these background, he submits that the petitioner who happens to be Branch Manager of M/s Mahindra & Mahindra Financial Services Limited has been unnecessarily dragged in the present case. 5. On the other hand Mr. Sunil Kr. Dubey, learned counsel for the State submits that the case is arising out of complaint case which was converted into F.I.R. pursuant to order of the learned Court in which chargesheet has been submitted and learned court has taken cognizance. 6. Mr. Prabir Kumar Chatterjee, learned counsel for the O.P. No. 2 submits that the amount was not refunded and the case is made out. 7. 6. Mr. Prabir Kumar Chatterjee, learned counsel for the O.P. No. 2 submits that the amount was not refunded and the case is made out. 7. In view of above submissions of the learned counsel for the parties the Court has gone through the materials on record and finds that the vehicle in question was financed by the M/s Mahindra & Mahindra Financial Services Limited however, the O.P. No. 2 failed to pay the E.M.I. The O.P. No.2 has only paid 5 E.M.I. as stated in the petition. However, the said vehicle was stolen. The insurer paid an amount of Rs. 4,95,646/- to the company and after taking amount financed the differentiated amount of Rs. 21,677/- was tried to be returned but the O.P. No. 2 did not turn up to collect the same. Further as has been submitted by the learned counsel for the petitioner that the said vehicle has already been released in favour of the O.P. No.2 and being used by the O.P. No.2. 8. The learned court has taken cognizance under sections 406 and 420 of the I.P.C. For taking cognizance under section 420 of I.P.C., one is required to look into section 415 of the I.P.C. which is definition of cheating and if the intention of cheating is not there from the very beginning, Section 420 of I.P.C. is not made out. Further in order to bring home the offence of criminal breach of trust under section 406 of I.P.C. entrustment is essential which is lacking in the case in hand. 9. In view of above facts, reasons and analysis, the entire criminal proceeding in connection with Govindpur P.S. Case No. 212 of 2010, corresponding to G.R. Case No. 1952 of 2010 arising out of C.P. Case No. 908 of 2010, pending in the Court of learned Judicial Magistrate, Ist Class, Dhanbad, is quashed. 10. This petition stands allowed and dispose of. Pending I.A., if any, stands disposed of. Interim order is vacated.