A financier may seize property for unpaid dues without constituting criminal offences under IPC.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the parties.

2. Though, notice has validly been served upon the opposite party no.2, yet no on turns up on behalf of the opposite party no.2.

3. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash and set aside the entire criminal proceeding including the order taking cognizance and summoning order dated 13.12.2013 passed by learned Chief Judicial Magistrate, Pakur in P.C.R. Case No.434 of 2013 involving the offences punishable under Sections 379, 384, 406, 420, 120B/34 of the Indian Penal Code.

4. The brief fact of the case is that the petitioner stopped the Tata Sumo Victa vehicle driven by the complainant which belongs to the employer of the complainant and took the vehicle to Dumka by disclosing that the vehicle is being seized by financier for default in payment of the instalments but did not release the vehicle even after the instalment amount was paid. The complainant filed the complaint Case vide P.C.R. Case No.102 of 2012 and the same was referred to police under section 156(3) of the Cr.P.C. by the learned Chief Judicial Magistrate, Pakur. Basing upon the same, Pakur Town P.S. Case No.121 of 2012 was registered and police took up investigation of the case. After completion of the investigation, police submitted Final Form finding that the allegation against the petitioner to be not true. Thereupon, the complainant filed a Protest-cum-Complaint Petition which was registered as P.C.R. Case No.434 of 2013.

5. On the basis of the Protest-cum-Complaint Petition, statement on solemn affirmation of the complainant and the statement of enquiry witnesses, the learned Chief Judicial Magistrate, Pakur has found prima facie case for the said offences and directed issuance of summons inter alia against the petitioner.

6. Learned counsel for the petitioner relies upon the judgment of Hon’ble Supreme Court of India in the case of Sardar Trilok Singh & Others vs. Satya Deo Tripathi, (1979) 4 SCC 396 and submits that the Hon’ble Supreme Court of India has held in para-5 of that judgement, that assuming that the appellant before the Hon’ble Supreme Court of India in that case, either by themselves or in the company of some others went and seized the truck from the house of the respondents; they could and did claim to have done so in exercise of their bona fide right of seizing the truck on the respondent’s failure to pay the third monthly instalment, in time. Therefore, the dispute amounts to a bona fide civil dispute. In that case, in view of the highly exaggerated version given by the respondent of that case, that the appellants of that case went to his house with a mob armed with deadly weapons and committed the offence of dacoity, the said the case was quashed and set aside by the Hon’ble Supreme Court of India.

7. Learned counsel for the petitioner next relies upon the judgment of Hon’ble Supreme Court of India in the case of Anup Sarmah vs. Bhola Nath Sharma and Others, (2013) 1 SCC 400, wherein the Hon’ble Supreme Court of India relied upon its own judgment in the case of Charanjit Singh Chadha vs. Sudhir Mehra, (2001) 7 SCC 417 wherein it was held by the Hon’ble Supreme Court of India that the recovery of possession of the vehicle by the financier as per terms of the hire-purchase agreement, does not amount to a criminal offence. In that case, the Hon’ble Supreme Court of India also relied upon its own judgment in the case of K.A. Mathai vs. Kora Bibbikutty, (1996) 7 SCC 212 wherein the Hon’ble Supreme Court of India held that in case of default to make payment of instalments, the financier has a right to resume possession, even if the hire-purchase agreement does not contain a clause of resumption of possession, for the reason that, such a condition is to be read in the agreement. Therefore, it is lastly submitted that the prayer as prayed for in this Cr.M.P., be allowed.

8.