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IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBRAMONIUM PRASAD, J.
IN THE MATTER OF:
Charu Motors Pvt Ltd & Anr – Appellant
Versus
Pegasus Computers & Ors - Respondents
Crl.M.C. 2163, 2324 of 2012
Decided on : 23-12-2021
Criminal Procedure Code, 1973 - Section 91 - Bank - Loan agreement - Stop Payment - Vicarious liability - Respondent No.1 in CRL.M.C., who is same as Respondent No.2 in CRL.M.C. (Complainant') purchased one Hyundai Santro car for a on-road - It is stated that out of the said sum, amount was financed from Kotak Mahindra Primus Limited which was to be repaid over 47 months in equal monthly instalments (EMI) of amount each, and that margin money was Rs. 1,37,950/-. It is stated that Complainant was also liable to pay overdue interest and other charges. Accordingly, Hyundai Santro vehicle was purchased, and as per terms of loan agreement vehicle was hypothecated by the Complainant in favour of Bank - First EMI was due however, upon depositing cheque, same was returned on account of “Stop Payment” issued by the Complainant. It is stated by the Bank that it has not received any amount paid from Complainant against loan.
Finding of the Court :
Complainant has failed to cite any specific allegations against the Petitioners in this regard and has also failed to attach sufficient evidence to impute definitively that the Petitioners played an active role in the alleged cheating and criminal breach of trust. There is no allegation regarding a specific act that has been attributed to the Petitioners. Further, the Complainant has also failed to mention the name of Accused No.5, i.e. the Director of the Dealer. This Court is of the opinion that, flowing from the material placed on record before this Court, along with the catena of Supreme Court judgments, no vicarious liability could be attached to Uday Kotak, Sumit Bali, and Director of Dealer in the instant case - Impugned summoning Orders are riddled with legal infirmities and do not fully appreciate the facts and circumstances of the instant case as well as law that has been laid down by the Supreme Court. Court opinion that second complaint should not have been entertained by learned Metropolitan Magistrate and, therefore, is liable to be quashed. As a consequence of the quashing of Complaint Case, the impugned summoning Orders set aside.
Result: Petitions disposed of
JUDGMENT :
SUBRAMONIUM PRASAD, J.
1. CRL.M.C. 2163/2012 & CRL.M.C. 2324/2012 are for quashing order dated 23.04.2012 passed by the learned Metropolitan Magistrate in Complaint Case No.103/2010.
2. It is pertinent to mention here that Charu Motors (Petitioner No.1 in CRL.M.C. 2163/2012 & Respondent No.3 in CRL.M.C. 2324/2012) is a company authorized for selling and servicing of four wheelers manufactured by M/s Hans Hyundai. Petitioner No.2 in CRL.M.C. 2163/2012 is the Director of Charu Motors. Kotak Mahindra Primus Limited (Petitioner No.1 in CRL.M.C. 2324/2012 & Respondent No.2 in CRL.M.C. 2163/2012) is a Non-Banking Financial Company (hereinafter, 'the Bank'), Uday Kotak (Petitioner No.2 in CRL.M.C. 2324/2012 & Respondent No.3 in CRL.M.C. 2163/2012) is the Chairman of Kotak Mahindra Primus Limited, and Sumit Bali (Petitioner No.3 in CRL.M.C. 2324/2012 & Respondent No.4 in CRL.M.C .2163/2012).
3. Facts, in brief, leading to the present petitions are as under:
b) It is stated that the first EMI was due on 15.03.2001, however, upon depositing the cheque, the same was returned on account of “Stop Payment” issued by the Complainant. It is stated by the Bank that it has not received any amount paid from the Complainant against the loan.
c) It is stated that the Complainant claims to have issued 48 post-dated instruments to the Bank, and the Bank, without his knowledge or consent, extended one of the 48 post-dated instruments to Charu Motors (hereinafter, ‘the Dealer’), which was encashed by the Dealer followed by the Bank unilaterally increasing the loan sum from Rs.2,50,000/- to Rs. 2,52,750/-. It is stated that the Complainant further claims to have written communications to the Bank and the Dealer herein (dated 05.03.2001, 27.03.2001 and 28.03.2001), calling upon them to explain the said discrepancy, but to no avail.
d) It is further stated that the Complainant claims that the Bank illegally terminated the loan agreement before presentation of second instrument towards monthly instalments and further allegedly called upon the Complainant vide Notice dated 17.03.2001 to pay a sum for Rs. 2,68,494/- within twenty-fours from date and time of receipt thereof.
e) It is stated that on account of default of payment, the subject vehicle was repossessed by the Bank on 04.04.2001. It is stated that consequently, the Complainant lodged a complaint on 07.04.2001, being FIR No.116/2001 dated 29.05.2001 registered at Police Station Naraina under Section 379 IPC. A legal notice dated 07.04.2001 was also sent by the Complainant simultaneously. It is stated that in April 2001, Civil Suit bearing No. 155/2001 was filed by the Complainant, and the same was withdrawn vide Order dated 24.04.2001 on the ground of statement of the Complainant wherein it was stated that the Complainant was ready to pay a sum of Rs. 2,75,000/- on or before 28.04.2001 in order for the Petitioners to give back the repossessed vehicle. The Order further stated that if the Complainant did not pay the sum, then he would have to forfeit his right on the vehicle.
f) It is stated that the Complainant did not pay the amount on or before 28.04.2001 on the ground that the vehicle was in a damaged condition. It is stated that thereafter, an application fo
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