Prem Kumar @ Prem Shankar Keshari v. 1. The State of Jharkhand. 2. Vikram Kumar Bhadoria
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1668 of 2016 Prem Kumar @ Prem Shankar Keshari ..... … Petitioner Versus 1. The State of Jharkhand. 2. Vikram Kumar Bhadoria with ..... … Opposite Parties Cr.M.P. No. 1681 of 2016 1. Dhananjay Reddy 2. S. Mukharjee @ Sikharendra Mukherjee 3. Palpun Majumdar Versus 1. The State of Jharkhand. 2. Vikram Kumar Bhadoria -------- ..... … Petitioners ..... … Opposite Parties
Legal Reasoning
CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners For the State For the O.P. No. 2 ------ : : : ------ Mr. Bharat Kumar, Advocate. Mr. Achinto Sen, A.P.P. Mr. Sanjeev Thakur, Advocate. 08/ 29.01.2024 In both these cases common question of fact and the FIR are under challenge, that’s why, with the consent of the parties, both these matters are being heard together. 2. Mr. Bharat Kumar, learned counsel appearing for the petitioners submits that initially only the FIR was under challenge in both these petitions and subsequently, the learned court has been pleased to take cognizance against the petitioners by order dated 19.06.2018 and for challenging the said order, I.A. Nos. 491 and 457 of 2021 have been filed in the respective cases. In view of that, the prayer made in these I.As. may kindly be allowed. 3. The said prayer is being opposed by Mr. Thakur, learned counsel appearing for the O.P. No. 2 and submits that at this belated stage, these I.As. may kindly be dismissed. 4. The court finds that initially the FIR was under challenge and the interim protection was provided and subsequently the learned court has been pleased to take cognizance against the petitioners by order dated 19.06.2018 and also to avoid the multiplicity of litigation, the prayer made in both the I.As. is allowed and the same are disposed of as such. 5. Let these I.As. be treated as a part of the main petitions respectively. -2- 6. Heard Mr. Bharat Kumar, learned counsel appearing for the petitioners, Mr. Achinto Sen, learned A.P.P. for the State and Mr. Sanjeev Thakur, learned counsel appearing for the O.P. No. 2. 7. In both these petitions the prayer is made for quashing of the entire criminal proceeding, in connection with Bokaro Steel City P.S. Case No. 58 of 2016 corresponding to G.R. No. 418 of 2016, pending in the court of learned C.J.M., Bokaro. In view of the prayer allowed in the aforementioned I.As., the order taking cognizance dated 19.06.2018 is also under challenge in these petitions. 8. The FIR was lodged alleging therein that the informant is the partner of Ma Pyari Enterprises and the company got one Volvo Crawler Excavator, Chasis & engine no 272044 from Tata Finance Company on 29.06.2013. On 9.01.2016 Recovery agent of Tata Finance Company Jayant Singh forcible repossessed the vehicle from the driver of the complaint Manohar Verma at Balidih NH when the vehicle was returning from Giridih. Prior to repossession the informant was never informed. The vehicle was repossessed because of conspiracy of Jayant Singh and other officers of the company, namely, Dhananjay Reddy, S. Mukherjee and Palpun Majumdar without any information. The company was demanding Rs 85,00,630/- without any basis, though the informant was paying its instalment regularly. Rs 5,00,000/- was being demanded as bribe from the informant and his partner, Manoj Kumar Singh, by Dhananjay Reddy, S. Mukherjee Palpun Majumdar, Jayant Singh and Prem Kumar and when it was not met the vehicle was seized on 9.01.2016. The informant sent legal notice on 1.02.2016 and 22.02.2016 requesting them to return the vehicle, to which no reply was given. Jayant Singh again demanded an extortion of Rs 5,00,000/- and on 21.03.2016 at about 8 PM, Prem Kumar & Others threatened him at his office and again demanded an extortion of Rs 5,00,000/- and threatened that the informant will have to face consequences if he lodged any case. It has been further alleged that all accused conspired to extort Rs. 5,00,000/- and when the demand was not met so the accused persons sold the vehicle by fraud and the informant suffered a loss of one crore due to it. 9. Mr. Bharat Kumar, learned counsel appearing for the petitioners submits that the petitioner in Cr.M.P. No. 1668 of 2016 was -3- posted as Customer Relationship Manager of Tata Capital Financial Services Ltd. He submits that the petitioner Nos. 1 and 2 in Cr.M.P. No. 1681 of 2016 are the Regional Collection Manager and Area Sales Manager respectively of the said company. He further submits that the informant entered into an agreement with the company Tata Capital Financial Services Ltd. for purchasing the vehicle in question and a sum of Rs. 1,26,48,000/- was financed on the basis of repayment as well as on monthly EMI. He further submits that the O.P. No. 2 failed to pay the EMI, in view of that Clause-17 of the agreement which was the arbitration clause was invoked by the company. He further submits that pursuant to that the arbitration took place, which was awarded in favour of company and thereafter the vehicle in question was repossessed. He further submits that the award is dated 03.03.2015, wherein the repossession was made on 09.01.2016. He further submits that thereafter the FIR was lodged on 22.03.2016. He further submits that in view of Clause-17 of the agreement, the right of repossession is with the company. He further submits that so far as these petitioners are concerned, only the general and omnibus allegations are there in the FIR. On these grounds, he submits that the entire criminal proceedings may kindly be quashed. 10. Mr. Thakur, learned counsel appearing for the O.P. No. 2 submits that no intimation was made to the O.P. No. 2 in view of that the case is rightly registered. He submits that even the EMIs were not paid, the accused company is having no right to repossess the vehicle in question. He submits that there is specific allegation of threatening is there. 11. Learned A.P.P. appearing for the State submits that if the case of civil nature is made out, the vehicle in question was wrongly repossessed by the company. 12. It is an admitted position that a sum of sum of Rs. 1,26,48,000/- was financed by the company to the O.P. No. 2 for purchasing the vehicle in question on the basis of hire purchase agreement. In terms of Clause-17 of the agreement which was the arbitration clause, was invoked by the company and pursuant to that the arbitration took place, which was awarded in favour of company and thereafter the vehicle in question was repossessed. The award is dated -4- 03.03.2015, wherein the repossession was made on 09.01.2016 and thereafter the FIR was lodged on 22.03.2016. 13. It is further well settled that in a hire purchase agreement, the ownership remains with the Bank, unless the EMIs are settled. Only the right to operate is there with the purchaser of the vehicle. In the case of Anup Sarmah v. Bhola Nath Sharma & others, reported in (2013) 1 SCC 400, it has been held that in an agreement of hire purchase, the purchaser remains merely a trustee/ bailee on behalf of the financier/ financial institution and 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. Clause-17 of the agreement speaks about the repossession of the vehicle. 14. Similar view has been expressed in the case of Charanjit Singh Chadha V. Sudhir Mehra, reported in (2001) 7 SCC 417. 15. Coming to the facts of the present case, non-payment of the instalment, the company has invoked the arbitration clause of the agreement and the arbitrator has passed the award on 03.03.2015 and almost after a year, the vehicle in question was repossessed. It appears that the financer company has adhered to the terms and conditions of the agreement. To allow to continue the proceeding will amount to an abuse of the process of law. 16. Accordingly, the entire criminal proceeding including the order taking cognizance dated 19.06.2018, passed in connection with Bokaro Steel City P.S. Case No. 58 of 2016 corresponding to G.R. No. 418 of 2016, pending in the court of learned C.J.M., Bokaro, are hereby, quashed. 17. 18.
Decision
Both these petitions are allowed and disposed of. It is made clear that if any civil case is pending, that will be decided in accordance with law, as this order has been passed only considering the parameters of Section 482 Cr.P.C. Amitesh/- (Sanjay Kumar Dwivedi, J.)