Services vs Maner, District- Patna

.... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Birendra Kumar Sinha, Sr. Advocate. Mr. Krishna Rajan, Advocate. Mr. Manish Kumar, Advocate. Mr. Indra Jeet Bhushan, Advocate. For the Opposite Party/s : Mr. Rajeev Ranjan Sinha, Advocate. For the State : Mr. Rajendra Prasad Nat, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 3 30-01-2013 Heard learned counsel for the petitioners, Opposite Party No. 2 and the State. These petitions are directed against the order dated 17.01.2012 passed by the Additional Chief Judicial Magistrate, Danapur in a case arising from Complaint Case No. 1152(C) of 2011, whereby the learned Magistrate has been pleased to take cognizance of the offence punishable under Sections 406, 420 and 323/34 of the Indian Penal Patna High Court Cr.Misc. No.12078 of 2012 (3) dt.30-01-2013 Code. The prosecution case as alleged in the complaint is that accused no. 3 offered interest free loan for purchase of Mahindra Tractor. An agreement was entered into between the complainant and accused no. 2, the Regional-cum-Branch Manager, Mahindra Finance for interest free loan of Rs.2,00,000/- for purchase of Mahindra Tractor (Shaan) costing Rs.2,70,000/- and Rs.70,000/- as margin money was deposited by the complainant. It is further alleged that at the time of execution of agreement, Rs.23,000/- was also paid as cost of registration, tax token etc. After due formality the tractor loan was sanctioned, the amount was paid to the dealer and the tractor was handed over to the complainant. The complainant even started repayment. However, it is alleged that registration document of the vehicle was not given or made available to the complainant and the legal notice was sent but in vain. It is alleged that accused persons in furtherance of common intention cheated the complainant to deliver Rs.23,000/- for getting the vehicle registered but misappropriated in collusion with each other. The learned Magistrate after examination of the complainant and his witnesses under Sections 200 and 202 Cr.P.C. during inquiry ordered to issue notice after taking cognizance for the offence under Sections 406, 420 and 120(B) of the Indian Penal Code. The learned counsel for the petitioners submits that the petitioners are the Chairman-cum-Managing Director, Mahindra and Mahindra Financial Services Ltd. and Regional-cum-Branch Manager, Mahindra Finance. The complainant has made the Chairman-cum- Managing Director and Regional-cum-Branch Manager as accused by Patna High Court Cr.Misc. No.12078 of 2012 (3) dt.30-01-2013 designation without naming the person who were holding the post nor they were present at the relevant time when Rs.23,000/- alleged to have been deposited for registration of the vehicle whereas accused nos. 1 and 2 are the Finance Company and they have only the business to provide loan, whereas the interest free loan was provided and the complainant got the tractor. Hence, no offence is made out under Sections 406, 420 and 323 of the Indian Penal Code even if the entire allegation is accepted. The loan advanced to the tune of Rs.2,00,000/-, the part of Rs.2,00,000/- paid and still he has not cleared the loan and has filed the case. The learned counsel for the complainant, however, admitted that interest free loan of Rs.2,00,000/- was sanctioned and the complainant got the vehicle worth Rs.2,70,000/- after depositing the margin money of Rs.70,000/- and he stopped payment of dues worth Rs.38,000/- which is still due to him as registration paper is not being provided to him. However, going into allegation in complaint petition, it is apparent that accused nos. 1 and 2 are the Chairman-cum-Managing Director and Regional-cum-Branch Manager, Mahindra & Mahindra Finance and have been made accused by designation. It is alleged that in the office of accused no. 2 agreement no. 904280 was entered into between the complainant and accused no. 2 and executed between the parties against interest free loan of Rs.2,70,000/-. He deposited Rs.70,000/- as margin money and loan was sanctioned and he got the tractor. The term of agreement was that after the registration of vehicle, the vehicle will be shown to be hypothecated to lending company. However, it is alleged that the complainant handed over Rs.23,000/- on Patna High Court Cr.Misc. No.12078 of 2012 (3) dt.30-01-2013 demand for the cost of registration, tax token, road permit, insurance and processing fee under the above said agreement in the office of accused no. 2 in the presence of accused nos. 3 and 4 and witness no. 3 and also deposited sale deed. Hence, as per allegation there is no mention about the presence of accused nos. 1 and 2 at the time when Rs.23,000/- was paid. The fact is that the accused nos. 1 and 2 are the Finance Company only responsible for loan granted. The agreement entered into only mentions in specific term that the registration book of the tractor containing the endorsement of hypothecation of the product in favour of lending company. Hence, the agreement does not mention about Rs.23,000/- alleged to have been given in the office of accused no. 2. Moreover, the money has not been paid to accused nos. 1 and 2 in the complaint nor the name of the person who was holding the post on the relevant date has been mentioned. Though it is alleged that Rs.23,000/- was paid in the office of accused no. 2 in presence of accused nos. 3 and 4, hence, as per allegation even the amount was not paid to accused nos. 1 and 2 nor was an amount specified in the agreement the accused nos. 1 and 2 not present there then they cannot fasten with liability of paid Rs.23,000/- However, it is admitted that Rs.2,00,000/- was taken as interest free loan for which agreement was entered into. The complainant got the tractor but still loan amount of Rs.38,000/- is due. Hence, when there is no allegation that the petitioners were present at the time of payment of Rs.23,000/- nor is an amount paid of the agreement and hence even if assuming that complainant paid Rs.23,000/- in the office of accused no. Patna High Court Cr.Misc. No.12078 of 2012 (3) dt.30-01-2013 2 in presence of accused nos. 3 and 4 to someone which is not specific. Hence, accused nos. 1 and 2 by designation cannot be fastened with liability for impleading as an accused as they cannot be held vicariously liable for any act of commission or omission of other. Hence, when the accused nos. 1 and 2 were not present there at the time and the agreement does not mention about the payment of registration amount there is no evidence of any inducement by accused nos. 1 and 2 nor payment of Rs.23,000/- to them and hence, cannot be fastened with vicarious liability for act of commission or omission of others. The complainant himself is at fault as he has not cleared the dues of loan amount of Rs.38,000/- and was driving the vehicle without registration of the vehicle. So under the facts and circumstances of the case the petitioners having made accused by designation and were not present at the time of payment of Rs.23,000/- nor the amount was paid with agreement of accused nos. 1 and 2. Hence, it cannot be said that the petitioners are liable for any act of inducement by other nor petitioners are beneficiaries of the same. Hence, no criminal liability can be fixed on the petitioners. Moreover, petitioners entered into an agreement with complainant and paid the loan amount to the tune of Rs.2,00,000/- for purchase of the tractor and if it was also part of agreement then in that case the conduct of party shows that Rs.2,00,000/- was given in loan and hence, the bona fide of accused nos. 1 and 2 cannot be doubted and in that case also it is a case of breach of contract for having consequence of civil liability. Patna High Court Cr.Misc. No.12078 of 2012 (3) dt.30-01-2013 Hence, under the facts and circumstances of the case, allowing the prosecution to stand against the petitioners is an abuse of process of the Court. Hence, the order taking cognizance against the petitioners is hereby set aside and the petitions are allowed. (Gopal Prasad, J.) Kundan/-