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2019 Supreme(Pat) 1854
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Anand Mishra Son of Shri Manohar Mishra - Petitioner
Versus
State of Bihar through Principal Secretary Home Deptt. Govt. Of Bihar, Patna - Respondent
Criminal Writ Jurisdiction Case No.1169 of 2019
Decided On : 07-11-2019
For the Petitioners:Ms. Somali Acharya, Advocate
For the Respondent-State: Mr.Prabhat Kumar Verma, AAG-3, Mr. Saroj Kumar Sharma, AC to AAG-3
Headnote:
Indian Penal Code, 1860 – Sections 323, 420, 406, 467, 468, 504, 506 and 120-B – Constitution of India – Articles 226 and 227 – Hurt, cheating, criminal breach of trust, intentional insult, criminal intimidation and conspiracy – Quashing application – Loan Cum Hypothecation Agreement – Repossession of vehicle by financier for default in repayment of loan amount by complainant – In complaint, complainant has stated that she had gone to office of Company to deposit amount but she has not mentioned date on which she had visited office of Company – Informant has also not mentioned date on which she was abused, assaulted and threatened by officers and employees of Company – In case vehicle is seized by financier, no criminal action can be taken against him as he is repossessing goods owned by him – Allowing prosecution case to continue in present case, which is predominantly civil in nature would amount to abuse of process of court – In order to secure ends of justice, FIR needs to be quashed – Entire criminal prosecution including FIR quashed. (Paras 16, 26, 29 and 30)
JUDGMENT :
Heard learned counsel for the petitioners and learned counsel for the State.
2. This application under Articles 226 and 227 of the Constitution of India has been filed by the petitioners for quashing the first information report (for short ‘FIR’) of Kazi Mohammadpur P. S. Case No. 204 of 2018 registered for the offences punishable under Sections 323, 420, 406, 467, 468, 504, 506 and 120 B of the Indian Penal Code.
3. Learned counsel appearing for the petitioners submitted that the FIR in question has been registered under the orders of the court in gross violation to the ratio laid down by the Supreme Court in Priyanka Srivastava and Anr. vs. State of U. P. and Ors. since reported in AIR 2015 SC 1758 as there is no affidavit of the complainant stating that steps were taken under Sections 154(1) and 154(3) of the Code of Criminal Procedure (for short ‘CrPC’) before making an application under Section 156(3) of the CrPC. She has further contended that since L & T Finance Limited (for short ‘Company’) has not been added as a party, a criminal case against the petitioners, who are employees of the company could not be maintainable in view of the ratio laid down by the Supreme Court in R. Kalyani vs. Janak C Mehta and Ors. since reported in (2009) 1 SCC 516.
4. Advancing her argument, she has contended that the informant has illegally given a colour of criminal offence to a civil dispute arising out of a contractual obligation in complete contravention of the rulings of the Supreme Court in Sardar Trilok Singh & Ors. vs. Satya Deo Tripathi since reported in AIR 1979 SC 850, K. A. Mathai & Anr. vs. Kora Bibbikutty & Anr. since reported in (1996) 7 SCC 212, Charanjit Singh Chadha and Ors. vs. Sudhir Mehra since reported in AIR 2001 SC 3721, and Anup Sarmah vs. Bhola Nath Sharma & Ors. since reported in (2013) 1 SCC 400.
5. She contended that admittedly, the complainant had purchased a Sonalika Tractor upon the financial assistance provided by the Company. The complainant had entered into a hypothecation agreement with the Company and an amount of Rs.4,75,000/- was financed to her for the purchase of the tractor which was to be repaid in 60 installments.
6. Since the complainant made default in payment of loan, a demand notice dated 13.09.2017 was issued calling upon her to make payment and intimating that if the loan amount is not paid, the Company will proceed with the repossession of the vehicle in accordance with the Loan Cum Hypothecation Agreement. Since the complainant neither made any payment nor bothered to reply to the notice, the Company repossessed the vehicle by exercising its power vested by clause 9.2 of the said Agreement. Despite repossession of the said vehicle, the informant did not pay any heed to make payment and, thus, a pre-sale notice dated 27.02.2018 was issued duly intimating the complainant about the outstanding and consequences of non-payment of loan would be sale of the vehicle. However, she did not make any payment and, thus, the vehicle was sold by the Company.
7. On the basis of the aforesaid submissions, learned counsel appearing for the petitioner submitted that criminal prosecution launched against the petitioners is an abuse of the process of the court and in order to secure ends of justice, the same is required to be set aside.
8. Per contra, learned counsel appearing for the State submitted that the ratio laid down in Priyanka Srivastava (Supra) by the Supreme Court is not applicable to the facts of the present case. The complaint filed by the complainant was not under Section 156(3) of the CrPC. The same was filed under Sections 190 and 200 of the CrPC. In Priyanka Srivastava (Supra), the Supreme Court has not curtailed the jurisdiction of the court of Magistrate to refer a complaint to the police for investigation in exercise of powers conferred under Section 156(3) of the CrPC. He has further contended that the allegations made in the complaint would certainly attract the ingredients of the
