Chola Crest, C- 54 & 55, Super B-4, Thiru Vi Ka Industrial Estate, Guindy v. 1. The State of Jharkhand. 2. Bijay Kumar, Aged about 45 years S/o Gajadhar
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(Cr.) No. 401 of 2024 Cholamandalam Investment and Finance Company Ltd. Having its registered office at: Chola Crest, C- 54 & 55, Super B-4, Thiru Vi Ka Industrial Estate, Guindy, Chennai-600032 through its Branch legal manager Tanay Kumar Ojha, aged about 31 years, S/o Shriniwas Ojha, Resident off- Near Hanuman Mandir, P.O.- Rahargora, P.S-Barigora, District - East Singhbhum. ..... … Petitioner Versus 1. The State of Jharkhand. 2. Bijay Kumar, Aged about 45 years S/o Gajadhar Mallah, resident of-222, Nagrikala, Baghmara, P.O. P.s. Sijua, near tetulmari kanta, District - Dhanbad. -------- ..... … Respondents
Legal Reasoning
CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner ------ : : : : ------ 05/ 16.12.2024 Heard learned counsel appearing for the petitioner, learned Mr. Rahul Dev, Advocate. Mr. Priyanshu Nilesh, Advocate. Ms Shipra Sonam, Advocate. Mr. Deepankar, A.C. to G.A.-III. For the State counsel for the State and learned counsel appearing for the respondent No. 2. 2. This writ petition has been filed for quashing of the entire criminal proceedings including the order taking cognizance dated 10.11.2022, passed in connection with Complaint Case No. 3432 of 2022, pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad. 3. The complaint case has been filed by the complainant Bijay Kumar, alleging therein that Cholamandalam Finance Company in 2016 had financed his twelve wheeler bearing vehicle number JH-10- BA- 0788. While buying the vehicle, he had given six cheques as security and made a down payment of Rs 1 lakh sixty thousand, after which he got the vehicle. After this he kept paying the installments of the loan amount. After that finally on dated 04.03.2020 he got the N.O.C. for the loan in 2020. When he asked for the return of the six cheques which had been given at the time of taking loan amount, he was told to come back later and collect them. After this, when he went -1- to collect the cheque after the lockdown, they again asked him to come later. After this, suddenly on 02.04.2022, he got a notice of cheque bounce case, only then he filed this case. 4. Learned counsel appearing for the petitioner submits that the petitioner is the insurance-company and respondent No. 2 has taken a loan of Rs. 24,71,000/- for purchasing a vehicle. He submits that the subsequently the amount was not paid and thereafter certain cheques were issued for payment of the due amount and in good faith, the petitioner company has issued the NOC, however, when the cheque was presented before the Bank, the said cheque was dishonoured and for that the company has instituted a complaint case under Section 138 of the NI Act, being Complaint Case No. 462 of 2021 and thereafter the present case has been lodged by the complainant, stating therein the cheques given by him has been misutilized by the company. He further submits that in para-6 of the complaint, it is admitted that after receiving notice in the complaint case, filed by the petitioner company, the present case has been lodged. He then submits that the vehicle in question was taken over and re-possessed by the company in light of Claus-11 of the agreement, after due intimation to the police. He submits that in view of that, if any case is made out, that is deficiency in service, for that the criminal case has been lodged. 5. Learned counsel appearing for the State submits that the learned court has been pleased to take cognizance in view of the complaint made by the respondent No. 2. 6. Learned counsel appearing for the respondent No. 2 has opposed the prayer and submits that the cheque issued by the respondent No. 2 has been misutilized by the company, in view of that, the ingredients of Section 406 is made out, as such, the learned court has rightly taken the cognizance. 7. In view of the above submissions of the learned counsel appearing for the respective parties, it is alleged that the respondent No. 2 has taken the loan of Rs. 24,71,000/- from the company, which was not paid later on and in para-3 of the complaint, it is admitted that the NOC was issued by the company, which suggests that the said NOC was issued pursuant to the cheque issued by the respondent No. 2, -2- however, later on, the said cheque was dishonoured, for that the complaint case has been lodged. Further in para-6 of the complaint petition, it has been disclosed that after receiving notice in that complaint, filed by the petitioner company, the present complaint case has been filed, which clearly suggests that a case has been tried to be made out of possession against the petitioner, who happened to be a company. Even if the stand of the respondent No. 2 is said to be correct, that is the defence of the respondent No. 2 with regard to the issuance of the cheque that can be considered in the complaint filed by the company under Section 138 of the NI Act and there is no occasion to file a separate complaint case against the company. 8. So far as possession of the vehicle in question is concerned, that has been done in light of Clause-11 of the agreement that too after intimation to the police. Reference may be made to the case of Anup Samrah Versus Bhola Nath Sharma & Ors., reported in (2013) 1 SCC 400, where in paras-6, 7 and 8, the Hon’ble Supreme Court has held as follows:- the vehicle by “6. In Charanjit Singh Chadha v. Sudhir Mehra [(2001) 7 SCC 417 : 2001 SCC (Cri) 1557] this Court held that recovery of possession of 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 terms resolved 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 basis the on of -3- 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. the option is exercised by “8. … The element of sale fructifies when 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 [(2001) 7 SCC 417 : 2001 SCC (Cri) 1557] , SCC p. 422, para 8) While deciding the said case, this Court placed reliance upon its earlier judgments in Damodar Valley Corpn. v. State of , Instalment Bihar [AIR 1961 SC 440] Supply (P) Ltd. v. Union of India [AIR 1962 SC 53] (SCC p. 744, para 8), K.L. Johar& Co. v. CTO [AIR 1965 SC 1082] , (AIR p. 1090, para 17) and Sundaram Finance Ltd. v. State of Kerala [AIR 1966 SC 1178] . 7. In view of the above, the law can be summarised that in an agreement of hire purchase, the purchaser remains merely a the trustee/bailee and financier/financial ownership remains with the latter. Thus, in case the vehicle is seized by the financier, no criminal action can be taken against him as he is repossessing the goods owned by him. 8. If the case is examined in the light of the aforesaid settled legal proposition, we do not see any cogent reason to interfere with the impugned judgment and order. The petition lacks merit and, accordingly, dismissed.” behalf institution on of 9.
Decision
In view of the above, it appears that the present complaint has been lodged maliciously and the case of the petitioner is fully -4- covered in light of the judgment of the Hon’ble Supreme Court in the case of Anup Samrah (Supra) and if such a situation is there, the purchaser remains merely a trustee/bailee on behalf of the financer/financial institution and ownership remains with the latter. Thus, in case the vehicle is seized by the financer, no criminal action can be taken against him, as he is repossessing the goods owned by him. 10. As such, the the entire criminal proceedings including the order taking cognizance dated 10.11.2022, passed in connection with Complaint Case No. 3432 of 2022, pending in the court of learned Judicial Magistrate, 1st Class, Dhanbad, are hereby, quashed. 11. This petition is allowed and disposed of. Amitesh/- (Sanjay Kumar Dwivedi, J.) -5-