MANU/MP/0960/2015

Equivalent/Neutral Citation: ILR[2016]MP919, 2015(3)JLJ57

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

Miscellaneous Criminal Case No. 5974 of 2014
Decided On: 07.07.2015
Arpit Jain Vs. Vijay Sisodiya
Hon'ble Judges/Coram:
S.R. Waghmare, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Vinay Saraf
For Respondents/Defendant: Nilesh Sharma
ORDER
S.R. Waghmare, J.
1. By this petition under section 482 of the CrPC the petitioner Arpit Jain has prayed for
quashment of Criminal Case No. 35600/2013 pending before the Judicial Magistrate
First Class, Indore. Briefly stated the facts of the case are that the respondent Vijay
Sisodiya had filed a criminal complaint against one Cholamandalam Investment and
Finance Co. Ltd. alleging that Tata Truck bearing registration No. 1109 was purchased
by the respondent from Sanghi Bros. (Indore) Pvt. Ltd. The agreement of hire purchase
was signed by him but since it was in English language, he could not understand the
agreement. Counsel urged that he issued 48 security cheques in favour of the company,
the vehicle was registered at No. MP46/G-0664. That the installment were payable two
months after the purchase, however, the financial condition of the respondent Vijay
Sisodia was in dire straits and he could not pay the installment on the stipulated time
and on the date of the incident i.e. 23.11.2012 when the vehicle was parked in front of
the residence of his brother Surendra Singh at Bicholi Mardana, Indore; one Jabbar
along with 2-3 persons came there at 9 O'Clock in the night and asked his brother to
remove the vehicle since they wanted to park their dumper there. They took the keys
from Surendra Singh and took away the truck without any permission of Surendra
Singh. Hence this report was filed by brother Surendra Singh at P.S. Palasia but the
police did not take any action and thereafter the criminal complaint was filed. It also
happened that the name of the petitioner and Jabbar were added by way of amendment.
Cognizance was taken by the Magistrate for offence under section 379 of IPC against
accused Jabbar vide order dated 13.11.2013. Hence this petition for quashment of the
order.
2 . Counsel for the petitioner has vehemently urged the fact that the name of the
petitioner was added by way of amendment on 3.9.2013 and was an abuse of process
of law. The complaint was initially recorded under section 200 of the CrPC and no case
was made out for offence under section 379 of the IPC against the petitioner Arpit Jain.
Counsel submitted that it was a settled position of law that if the borrower failed to
make the payment of installments of loan, the financier is entitled to take possession of
the financed vehicle as per the terms of the contract and filing of the complaint was bad
in law and the alleged ingredients of the offence under section 379 of the IPC were not
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made out. It was also alleged that the vehicle was voluntarily handed over by Surendra
Singh brother of the complainant and in this sense also the intention to cause wrongful
gain or wrongful loss is absent in the present case and the important fact cannot be
marginalised is that respondent has admitted that his financial condition was not good
and therefore, he could not make the payment of instalments. Similarly there is no
mens rea and the petitioner cannot be accused for offence under section 379 of IPC.
Counsel prayed for quashment of the further proceedings since it would result of
miscarriage of justice and the order was manifestly unjust, unwarranted and perverse.
Counsel prayed that the proceedings be quashed.
3. Counsel for the petitioner placed reliance on K.A. Mathai @ Baku and another v. Kora
Bibbikutty and another [(1996) 7 SCC 212], to state that where the case was considered
by the apex Court that the bus was purchased under the hire purchase agreement and
complainant had defaulted in payment and the financier had taken possession of the bus
with the help of A-1 and A-2 and the Court held that the offence of theft was not made
out and the Financier was right to resume possession. Similarly more or less the same
has been held in the matter of M/s. Sundaram Finance Ltd. v. Mohd. Abdul Wakeel
[MANU/MP/0212/2001 : 2001 CrL J 2441], Charanjit Singh Chadha and others v. Sudhir
Mehra [MANU/SC/0514/2001 : 2002 (1) MPL J 321], Mohan Singh Rathore v. State of
M.P. [MANU/MP/0314/2005 : 2006(1) MPWN 133], Managing Director, Orix Auto
Finance (India) Ltd. v. Shri Jagmander Singh and another [MANU/SC/0866/2006 : 2006
(11) MPWN 96], Trilok Singh and other v. Satya Deo Tripathi [MANU/SC/0231/1979 :
1980 CrLJ 822], Anup Sarmah v. Bhola Nath Sharma and others [MANU/SC/0937/2012 :
(2013) 1 SCC 400], and Issac Jaise v. Jasmit Sing Salufa [MANU/MP/0589/2002 : 2003
(1) MPLJ 274].
4 . Finally Counsel relied on Anup Sarmah v. Bhola Nath Sharma and others
[MANU/SC/0937/2012 : (2013) 1 SCC 400], to state that in an agreement of hire
purchase, the purchaser remains merely a trustee/bailee on behalf of the financier but
ownership remains with the latter and if the vehicle was seized by the financier no
criminal action can be taken against him as he is only repossessing goods owned by
him and there was no reason for interference. Counsel prayed that the petition be
allowed and the proceedings in the trial Court be quashed.
5. Counsel for the respondent, on the other hand, has fully supported the order framing
charge and the consequent proceedings. Counsel submitted that the investigation
proceedings were not complete and the Court has to evaluate the material on record and
in such cases the investigation proceedings cannot be quashed. And it was impossible
for the High Court to look into the materials while exercising the jurisdiction under
section 482 of the CrPC. Counsel placed reliance on State of M.P. v. Awadh Kishore
Gupta and others [MANU/SC/0946/2003 : 2004 (2) JL J 234], to state that when the
factual position of the case at hand was completely different, the financier cannot
recover the vehicle illegally and proper show cause notice had to be issued and
snatching a vehicle amounted to theft under section 379 of the IPC. In the present
circumstances the vehicle was handed over by the brother Surendra Singh on trust and
it was without the knowledge of the owner that the truck has taken away by playing a
fraud. Counsel prayed that the petition was without merit. He also relied on Ms. Shivraj
Wires Limited and others v. State of Punjab and another [2013 (1) DCR 184], whereby
the Court was considered the case for offence under section 138 of the N.I. Act and the
question was regarding quashment of the FIR and subsequent proceedings quashing the
complaint itself under section 138 of the N.I. Act and the Court had held that allowing
the amendment application prior to recording of preliminary evidence is not against the
law as no prejudice is caused to the accused and the High Court of Punjab had held that
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it did not call for any interference. In the present case also, Counsel submitted that the
amendment had introduced the name of Jabbar and Arpit Jain since they were essential
parties to the complaint and the accused in the said case. Hence Counsel prayed that
the petition be dismissed. He placing reliance on State of Orissa and others v. Ujjal
Kumar Burdhan [MANU/SC/0217/2012 : (2012) 2 SCC (Cr.) 506], to state that although
the powers of the High Court under section 482 of the CrPC are very wide, the apex
Court had held that they do not confer arbitrary jurisdiction and it has to be exercised
sparingly with circumspection and the High Court should not interfere unless the case of
gross abuse of power is made out against the person-in-charge of investigation and the
apex Court had held that the High Court had erred in quashing investigation initiated by
the Vigilance Department and counsel prayed that in the present case also the offence
registered against the complainant cannot be quashed without taking proper evidence
and the criminal prosecution cannot stifle in this fashion. Finally relying on HDFC Bank
Limited v. State of Rajasthan and another [2015 Cr.L J (NOC) 107 (H.P.)], counsel
submitted that the High Court at Jaipur had considered the alleged vehicle
hypotheticated by the Bank and complainant had made default in payment of
installments of loan and similar recovery by agents of the bank allegedly stopped the
motorcycle of complainant and torn his shirt and had taken away Rs. 50,000/- from his
pocket along with motorcycle and the Court had considered the question of the facts
regarding the recover)' being legal and use of force were questions which could not be
adjudicated in petition under section 482 of CrPC and had to be determined during the
course of the trial. Counsel prayed that in the present case also the same benefit be
granted to the petitioner. Similarly placing reliance on Citicorp. Maruti Finance Ltd. v. S.
Vijayalaxmi [MANU/SC/1337/2011 : AIR 2012 SC 509], and counsel submitted that the
recovery by the financial institution was against the process of law and use of force
cannot be permitted. Counsel prayed that the petition was without merit and the same
be dismissed. On considering the above submissions, I find that the sole question arises
for adjudication is whether the criminal proceedings can be quashed at this stage. The
authorities relied on by the Counsel for the petitioner also categorically stated that mens
rea and dishonest intention have to be established for offence under section 379 and at
this stage it would be difficult to come to conclusion whether the recovery by the
financial institution or the petitioner was in accordance with the provisions of law. And
without there being proper scrutiny of evidence to stifle the proceedings at this stage
would be improper and proceedings under section 482 of the CrPC cannot be utilised for
quashing the proceedings at this stage and should not amount to abuse of process of
law as already stated above. I find that although much has been made about the
accused having defaulted in payment, but at the same time the important fact cannot be
marginalised or blinked away is that whether the recovery is in accordance with the
provisions of law and whether the respondent had legal remedy available to him. In this
light also the petition cannot be allowed. The trial Court would be able to adjudicate the
matter only after adducing proper evidence and hence the present petition is dismissed
as being without merit.
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