Judgment

Sanjay Dhar, J.—Petitioner has sought quashment of complaint titled Nasir Hussain Bhat vs. Mohd Sayeed Najar and others, pending in the Court of Judicial Magistrate, 1st Class, Kulgam, and the cognizance taken thereon by the learned Magistrate in terms of his order dated 21.12.2016.

2. It appears from the record that a complaint was made by respondent No.1 herein before the Court of learned Judicial Magistrate 1st Class, Kulgam (hereinafter referred to as the trial Magistrate) alleging commission of offences under Sections 379, 417, 418, 420, 560 RPC read with Section 120-B RPC by petitioner herein as well as by respondents 2 and 3. As per the contents of complaint, the respondent No.1 had purchased vehicle bearing No.JK03D-9520 from respondent No.2 on the basis of an affidavit dated 12.11.2014 executed by respondent No.2. Respondent No.1, the complainant, alleges that he had paid the consideration amount of Rs.6,00,000/- to respondent No.2 and at the time of entering into the transaction, the respondent No.2 had assured the respondent No.1 that the vehicle in question is not hypothecated to any financial institution. It is alleged that about 20 days back, when respondent No.1 was plying his aforesaid vehicle, he was apprehended by petitioner and respondent No.3 and his aforesaid vehicle was taken away without any rhyme and reason. On the next day, when respondent No.1 on the asking of the accused persons approached Jammu and Kashmir Bank, Cheeni Chowk Anantnag, he saw all the three accused sitting over there but they refused to return the vehicle to him and he was told that the vehicle in question is hypothecated to Jammu and Kashmir Bank, Cheeni Chowk Branch. It is further alleged that the respondent No.2 un-necessarily abused him in presence of other two accused.

3. Upon presentation of the aforesaid complaint before the learned Magistrate, it appears that the preliminary statement of the complainant and one of his witnesses was recorded, where after the learned Magistrate decided to resort to enquiry under Section 202 of the Code of Criminal Procedure directing SHO, P/S, Kulgam, to undertake the enquiry. The trial court record shows that the report of enquiry was submitted by the police but the learned Magistrate, feeling dissatisfied with the enquiry conducted by the police, directed the complainant to produce more witnesses.

4. It appears that preliminary statements of two more witnesses were recorded by the learned Magistrate, where after order dated 09.03.2016 came to be passed whereby cognizance of offences under Section 379, 420 RPC read with 120-B RPC was taken against the accused persons including the petitioner herein and they were directed to be summoned by issuance of bailable warrants. It further appears that on an application filed by the complainant before the learned trial Magistrate an order came to be passed on 21.12.2016 directing the petitioner herein as well as respondent No.3 not to dispose of /alienate the vehicle till the disposal of main case. This order as well as the complaint including the proceedings initiated thereon are under challenge by way of this petition before this Court.

5. It is the case of the petitioner that the vehicle, which is subject matter of the complaint, stands registered in the name of respondent No.2 who had taken loan from the Jammu & Kashmir Bank and the vehicle is hypothecated to the said Bank in terms of hire purchase agreement executed by the registered owner with the Bank. According to the petitioner, in terms of the covenants of the agreement, the Bank is well within its rights to take over possession of the vehicle in question in case of default in repayment of installments of loan. The respondent No.2, according to the petitioner, defaulted in repayment of loan which compelled the petitioner, who happens to be the Branch Manager of J&K Bank Ltd. Branch Cheeni Chowk, to take over possession of the vehicle in question. It is further case of the petitioner th