Manish Kumar Gupta @ Manish Gupta v. Ataul Rahman

CORAM: HON’BLE MR. JUSTICE NAVNEET KUMAR For the Petitioner For the State For the Opp. Party No. 2 -------- : M/s. Amit Kr. Das & Saurav Kumar, Advocate : Mrs. Shweta Singh, Addl.P.P. : None -------- Order No. 09: Dated: 12th December, 2022 1. Learned counsels M/s. Amit Kr. Das & Saurav Kumar for the Petitioner and learned Addl P.P. Mrs. Shweta Singh for the State are present but no one appeared on behalf of Opp. Party No.2. 2. Heard the parties. 3. Learned counsel for the petitioner submitted that this Cr.M.P. has been filed for quashing of the entire criminal proceedings initiated against the petitioner in connection with Complaint Case No. 156 of 2010 including the order dated 13.02.2012 passed by the learned Judicial Magistate 1st Class, Bokaro, whereby and whereunder cognizance has been taken against the Petitioner and other accused persons for the offence punishable u/s 323/379 & 34 of IPC. It has been pointed out by the learned counsel for the petitioner that a complaint case was filed by the O.P. No. 2 stating therein that he (O.P. No. 2) has got a vehicle valued at Rs. 6,34,000/- financed by the HDFC Bank after making a down payment of Rs. 1,89,000/- and under the agreement, he was required to repay the loan in installment at the rate of Rs. 10,687/- per month for 58 months and on the basis of the said loan he had taken the vehicle on hire purchase agreement by executing the agreement. It has further 2 Cr. M.P. No. 2221 of 2013 been pointed out that on 03.11.2009 when the O.P. No. 2 was crossing Mahatma Gandhi Bridge, Patna, the co-accused persons Mohit Kumar and Anand Kumar who claimed themselves to be the employees of the HDFC bank, on the allegation of non-payment of the installment, recovered the vehicle and as such the act of recovery is in violation of the direction of the Hon’ble Supreme Court passed in the case of U.P. Civil & Revenue cases 2007 (1) SCC 580 & AIR 2003 Panjab and Haryana page 98 and it is stated that on 16.11.2009 he had given a written information to the Chairman of HDFC Bank, but the vehicle was not released. It has further been alleged by the complainant that on 09.02.2010 while he was going along with his friend Birendra Tiwari in the motorcycle and crossing the Airport gate, the accused persons intercepted them and assaulted the O.P. No. 2 and snatched away a bag containing Rs. 3000/-(Rs. three thousand only) and certain documents including original receipt of the bank to which he deposited Rs. 30,000/-(Rs. Thirty thousand only) on 07.11.2009 and the accused no. 4 Shahsank Jha also took one Eye Pod of Rs. 1000/-(Rs. One thousand) from his pocket and had threatened to sell the vehicle. 4. It has further been submitted that the learned court below after the institution of the complaint case examined the complainant on solemn affirmation and the 3 inquiry witnesses were also examined and thereafter passed the summoning order against all the accused persons including this petitioner Manish Kumar Gupta @ Manish Gupta @ Manish Kumar for the offences punishable u/s 323/379/34 of IPC. 5. It appears form the record that O.P. No. 2- Ataul Rahman, who was the complaint in the said Complaint Case No. 156 of 210 before the court below, has not entered into the appearance despite proper service of notice in the present case. 3 Cr. M.P. No. 2221 of 2013

6. Learned Addl.P.P. for the State did not controvert this fact that it is a case under which a complainant had taken the loan amount for the purchase of the vehicle from the HDFC Bank and this petitioner Manish Kumar Gupta was admittedly the employee of the HDFC bank who was the collection Manager.

7. Having heard the parties perused the record of this case.

8. It is an admitted case of the complainant that he had purchased the Scorpio vehicle in the year 2007 after taking loan from the HDFC Bank under the hire purchase agreement. It has further been found that a sum of Rs. 1,89,000/-(Rs. One lacs eighty nine thousand only) was made down payment to the Bank and the total price of the vehicle was Rs. 6,34,000/-(Rs. Six lacs thirty four thousand) which was to be paid in 58 months in the easy installment of Rs. 10,687/-. It is also admitted fact that the said loan amount was taken by the complainant under the hire purchase agreement. In this view of the matter, it is found that the said vehicle was reclaimed and taken back by the HDFC Bank on 03.11.2009 on the allegation of non-payment of the installment and the vehicle was recovered by the borrower bank and then allegations for the offences punishable under sections 323, 379/34 were alleged about the snatching of a black Bag containing Rs. 3000/-(Rs. Three thousand only), the original receipt of the bank and also an Eye-Pod of Rs. 1000/-(Rs. One thousand) and thereby the cognizance has been taken for the offences under sections 323, 379 r/w 34 of IPC by the learned court below. 9. It appears that the dispute has arisen between the parties because of the non-payment of the loan under the Hire-Purchase agreement and this allegation is legally sanctioned act of the petitioner by bank under the hire purchase agreement under which the vehicle was recovered because of non-payment of loan amount 4 Cr. M.P. No. 2221 of 2013 which is an admitted fact and therefore, the allegation of the subsequent act about commission of theft gets highly doubtful and the summoning order is not based on the cogent evidence which appeared to be bad in law. 10. Learned counsel for the petitioner has relied upon the ruling of the Hon’ble Supreme Court as reported in (2013) 1 SCC 400 in the case of Anup Sarmah V. Bhola Nath Sharma & Ors. Where under the circumstances of this case, the learned Apex Court has held at paras 4, 5 and 6 which are as under:

4. In Sardar Trilok Singh v. Satya Deo Tripathi AIR 1979 SC 850 this Court examined a similar case wherein the truck had been taken in possession by the financier in terms of hire- purchase agreement, as there was a default in making the payment of instalments. A criminal case had been lodged against the financier under Sections 395, 468, 465, 471, 120- B/34 IPC. The Court refused to exercise its power under Section 482 CrPC and did not quash the criminal proceedings on the ground that the financier had committed an offence. However, reversing the said judgment, this Court held that proceedings initiated were clearly an abuse of process of the court. The dispute involved was purely of civil nature, even if the allegations made by the complainant were substantially correct. Under the hire-purchase agreement, the financier had made the payment of huge money and he was in fact the owner of the vehicle. The terms and conditions incorporated in the agreement gave rise in case of dispute only to civil rights and in such a case, the civil court must decide as to what was the meaning of those terms and conditions.

5. In K.A. Mathai V. Kora Bibbikutty (1996) 7 SCC 212 this Court had taken a similar view holding that in case of default to make payment of instalments the financier had a right to resume possession even if the hire-purchase agreement does not contain a clause of resumption of possession for the reason that such a condition is to be read in the agreement. In such an eventuality, it cannot be held that the financier had committed an offence of theft and that too, with the requisite mens rea and requisite dishonest intention. The assertion of rights and obligations accruing to the parties under the hire- purchase agreement wipes out any dishonest pretence in that regard from which it cannot be inferred that the financier had resumed the possession of the vehicle with a guilty intention. 5 Cr. M.P. No. 2221 of 2013

6. In Charanjit Singh Chadha v. Sudhir Mehra (2001) 7 SCC 417 this Court held that recovery of possession of the vehicle by the financier owner as per terms of the hire-purchase agreement, does not amount to a criminal offence. Such an agreement is an executory contract of sale conferring no right in rem on the hirer until the transfer of the property to him has been fulfilled and in case the default is committed by the hirer and possession of the vehicle is resumed by the financier, it does not constitute any offence for the reason that such a case/dispute is required to be resolved on the basis of terms incorporated in the agreement. The Court elaborately dealt with the nature of the hire-purchase agreement observing that in a case of mere contract of hiring, it is a contract of bailment which does not create a title in the bailee. However, there may be variations in the terms and conditions of the agreement as created between the parties and the rights of the parties have to be determined on the basis of the said agreement. The Court further held that in such a contract, element of bailment and element of sale are involved in the sense that it contemplates an eventual sale. “8. … The element of sale fructifies when the option is exercised by the intending purchaser after fulfilling the terms of the agreement. When all the terms of the agreement are satisfied and the option is exercised a sale takes place of the goods which till then had been hired.” (Charanjit Singh Chadha case, SCC p. 422, para 8)