HIGH COURT OF CHATTISGARH AT BILASPUR
Misc. Criminal Case No.978 of 2004
Guruprasad Jaiswal
...Petitioners
Versus
1. Ramakant Gupta
2. State of Chhattisgarh
...Respondents
{Petition under Section 482 of the Code of Criminal
Procedure, 1973}
! Mr. Rajesh Pandey, counsel for the petitioner
^ Mr. Manoj Paranjpe, counsel for respondent No.1
Mr. Akhil Mishra, Deputy Govt. Advocate for the State/respondent No.2
Honble Mr. T.P. Sharma, J
Dated:27/08/2009
: Judgment
ORAL ORDER
(27-8-2009)
1. The present petition under Section 482 of the Code of
Criminal Procedure, 1973 (for short `the Code’) is for
quashment of Criminal Complaint Case No.38/2003 pending
before the Court of Judicial Magistrate First Class,
Ramanujganj.
2. Quashment is prayed on the ground that if the allegation
made in the complaint is admitted in its face value, even
then conviction of the petitioner under Sections 392, 394 &
506 read with Section 34 of the I.P.C. would not be possible
on the ground that the petitioner has took out the vehicle in
question in compliance of the agreement executed between the
parties.
3. Brief facts leading to filing of this petition are that
respondent No.1 has purchased one bus under hire purchase
agreement and the amount was financed by Shriram Transport
Finance Co. Ltd. (for short `the Finance Company’). The
petitioner is administrator of the Finance Company.
Respondent No.1 has paid the amount of loan. On 15-12-2002
at about 4-5 p.m. the bus was standing in a work shop at
Ambikapur. The petitioner along with other persons came to
the said work shop and forcefully tried to snatch the key of
the bus from the conductor of the bus, they used filthy
language and threatened the bus conductor & respondent No.1
also, and after snatching the key of the bus they took out
the bus forcefully. Respondent No.1 made a complaint to the
Police and finally, filed complaint before the Judicial
Magistrate First Class, Ramanujganj who made enquiry in terms
of Chapter XV of the Code and registered criminal complaint
case against the petitioner.
4. I have heard learned counsel for the parties and perused
the record of the Court below.
5. Learned counsel for the petitioner submits that the
petitioner is Director of the Finance Company and the bus was
purchased under hire purchase agreement. The bus was
hypothecated to the Finance Company and before payment of all
installments & dues, the Finance Company was owner of the bus
and it has a right to take possession in terms of the
agreement. Clause 7 of the agreement authorizes the Finance
Company to obtain re-possession of the vehicle after entering
into the building, premises or place or site, where the
vehicle was kept. Therefore the petitioner has not committed
any offence and has acted under the agreement executed
between both the parties. Learned counsel placed reliance in
the matter of Trilok Singh and others v. Satya Deo Tripathi1
in which it has been held by the Apex Court that launching of
criminal prosecution by purchaser against financer – Dispute
raised was purely of civil nature and criminal proceeding
would be an abuse of the process of the Court. Learned
counsel further placed reliance in the matter of Charanjit
Singh Chadha and others v. Sudhir Mehra2 in which it has been
held by the Apex Court that if hire purchase agreement
provides the clause that financer was entitled to repossess
the vehicle in case of default, repossession of vehicle would
not amount to any offence and criminal proceeding on the
basis of such repossession would amount to abuse of the
process of the Court. Learned counsel also placed reliance
in the matter of Central Board of Dawoodi Bohra Community and
another v. State of Maharashtra and another3 in which the
Apex Court has held that law declared by the same Bench or
larger Bench has a binding force and in case of any
deviation, the subsequent Bench is required to refer the
matter before larger Bench. Learned counsel further submits
that the decision rendered in the matter of ICICI Bank Ltd.
v. Prakash Kaur and others4 is judgment per incurian
therefore, same is not binding or having force of law
declared by the Apex Court.
6. On the other hand, learned counsel for respondent No.1
vehemently argued that in the present case, respondent No.1
has paid all installments & dues to the Finance Company, the
Finance Company that is to say, the petitioner & others, have
not only, simply, took out the bus from the premises of
respondent No.1, but they have entered into the work shop
where the bus was standing and after using filthy language
and intimidating the conductor of the bus, forcefully
snatched the key and took out the bus forcefully after
threatening respondent No.1. The act committed by the
petitioner is punishable under Sections 392, 394 & 506 read
with Section 34 of the I.P.C. and if the allegation made in
the complaint is admitted by the petitioner, same would be
sufficient for conviction of the petitioner under the
aforesaid provisions. Learned counsel further argued that at
the time of consideration for quashment of criminal
proceeding in terms of Section 482 of the Code, the Courts
are required to see that if the allegation made in the
complaint is admitted in its face value, then conviction
would be possible or not. Learned counsel placed reliance in
the matter of ICICI Bank (supra), in which the Apex Court has
held that forceful recovery of possession of vehicle brought
on hire purchase by the officers of the Bank to restore
recovery is deprecated and needs to be discouraged, Banks are
required to resort to procedure recognized by law to take
possession of vehicles in cases where borrower has committed
default instead of resorting to strong arm tactics.
7. Clause 7 of the agreement reads as follows: –
“7. The Hirer agrees to pay on demand, all
expenses incurred by the Owners in collecting
or attempting to collect moneys, including
inter alia, for collection of cheques, visits
of representatives, etc. or in obtaining re-
possession or attempting to re-possess the
vehicle due to them, the Owners, the hire,
and for the purpose of each re-possession,
leave and licence is hereby given to the
Owners, their agents or any other persons
employed by them to enter any building,
premises or place or site, where the vehicle
is or is supposed to be and take possession
of the same from the Hirer or any other
person without being liable to any suit or
other proceedings by the Hirer or any person
claiming under him.”
8. Clause 7 of the agreement authorizes the Finance Company
to repossess the vehicle even by entering into the premises
of the purchaser where the vehicle is standing.
9. In the matter of Charanjit (supra), the Apex Court has
held that the Finance Company is authorized to enter into the
premises of the purchaser for repossessing the vehicle and
they may repossess the vehicle. Para 17 of the said judgment
reads thus,
“17. The hire-purchase agreement in law is an
executory contract of sale and confers no
right in rem on the hirer until the
conditions for transfer of the property to
him have been fulfilled. Therefore, the
repossession of goods as per the term of the
agreement may not amount to any criminal
offence. The agreement (Annexure P-1)
specifically gave authority to the appellants
to repossess the vehicle and their agents
have been given the right to enter any
property or building wherein the motor
vehicle was likely to be kept. Under the
hire-purchase agreement, the appellants have
continued to be the owners of the vehicle and
even if the entire allegations against them
are taken as true, no offence was made out
against them. The learned Single Judge
seriously flawed in his decision and failed
to exercise jurisdiction vested in him by not
quashing the proceedings initiated against
the appellants. We, therefore, allow this
appeal and set aside the impugned judgment.
The complaint and any other proceedings
initiated pursuant to such complaint are
quashed.”
10. In the matter of ICICI Bank (supra), the Apex Court has
deprecated the practice of recovery of vehicle with the help
of musclemen. Paras 16 & 28 of the said judgments read as
follows: –
“16. Before we part with this matter, we wish
to make it clear that we do not appreciate
the procedure adopted by the Bank in removing
the vehicle from the possession of the writ
petitioner. The practice of hiring recovery
agents, who are musclemen, is deprecated and
needs to be discouraged. The Bank should
resort to procedure recognized by law to take
possession of vehicles in cases where the
borrower may have committed default in
payment of the instalments instead of taking
resort to strong-arm tactics.
28. In conclusion, we say that we are
governed by the rule of law in the country.
The recovery of loans or seizure of vehicles
could be done only through legal means. The
banks cannot employ goondas to take
possession by force.”
11. As regards the question of binding force of law declared
by the Apex Court in the matter of ICICI Bank (supra), in the
light of previous decision of the coordinate Bench in
Charanjit`s case in which the Apex Court has held that the
Finance Company has a right to enter into the premises and
repossess the vehicle, the Apex Court has not held that the
Finance Company or the person in terms of hire purchase
agreement are authorized to take repossession of the vehicle
forcefully.
12. On the other hand, in the matter of ICICI Bank (supra),
the Apex Court has deprecated and discouraged repossession of
vehicle with the help of musclemen and resorting to strong
arm tactics. The Apex Court has further held that we are
governed by the rule of law in the country. The recovery of
loans or seizure of vehicles could be done only through legal
means. If the Finance Company enters into the premises and
repossesses the vehicle without further commission of crime,
the act may be within the ambits of hire purchase agreement,
but if officers or person of the Finance Company forcefully
enters into the premises of the purchaser and forcefully
takes the possession of the vehicle or at the time of taking
forceful possession of the vehicle commits other offences,
same is not permissible under the garb of any agreement or
under clause 7 of the said contract. No person can be
authorized to commit offence under the garb of any agreement.
People of India are governed by the rule of law and not by
the rule of muscle power.
13. In the matter of Charanjit (supra), the Apex Court has
not held that party under the hire purchase agreement is
empowered to take forceful repossession of the vehicle by
committing further crime. In the present case, according to
the material collected on behalf of the complainant, the
petitioner has taken forceful repossession of the vehicle
after forcefully making entry in the premises and also
committed other crimes. Therefore, the law declared by the
Apex Court in the matter of ICICI Bank (supra) is not the
judgment per incurian and it is still binding as the law of
land.
14. Power under Section 482 of the Code is inherent and
exceptional in nature. In the matter of M/s. Zandu
Pharmaceutical Works Ltd. and others v. Md. Sharaful Haque
and others5 the Apex Court has held thus,
“8. Exercise of power under Section 482 of
the Code in a case of this nature is the
exception and not the rule. The Section does
not confer any new powers on the High Court.
It only saves the inherent power which the
Court possessed before the enactment of the
Code. It envisages three circumstances under
which the inherent jurisdiction may be
exercised, namely, (i) to give effect to an
order under the Code, (ii) to prevent abuse
of the process of court, and (iii) to
otherwise secure the ends of justice. It is
neither possible nor desirable to lay down
any inflexible rule which would govern the
exercise of inherent jurisdiction. No
legislative enactment dealing with procedure
can provide for all cases that may possibly
arise. Courts, therefore, have inherent
powers apart from express provisions of law
which are necessary for proper discharge of
functions and duties imposed upon them by
law. That is the doctrine which finds
expression in the section which merely
recognizes and preserves inherent powers of
the High Courts. All courts, whether civil
or criminal possess, in the absence of any
express provision, as inherent in their
constitution, all such powers as are
necessary to do the right and to undo a wrong
in course of administration of justice on the
principle “quando lex aliquid alicui
concedit, concedere videtur et id sine quo
res ipsae esse non potest” (when the law
gives a person anything it gives him that
without which it cannot exist). While
exercising powers under the section, the
court does not function as a court of appeal
or revision. Inherent jurisdiction under the
section though wide has to be exercised
sparingly, carefully and with caution and
only when such exercise is justified by the
tests specifically laid down in the section
itself. It is to be exercised ex debito
justitiae to do real and substantial justice
for the administration of which alone courts
exist. Authority of the court exists for
advancement of justice and if any attempt is
made to abuse that authority so as to produce
injustice, the court has power to prevent
abuse. It would be an abuse of process of
the court to allow any action which would
result in injustice and prevent promotion of
justice. In exercise of the powers court
would be justified to quash any proceeding if
it finds that initiation/continuance of it
amounts to abuse of the process of court or
quashing of these proceedings would otherwise
serve the ends of justice. When no offence
is disclosed by the complaint, the court may
examine the question of fact. When a
complaint is sought to be quashed, it is
permissible to look into the materials to
assess what the complainant has alleged and
whether any offence is made out even if the
allegations are accepted in toto.”
15. For the foregoing reasons, taking of cognizance against
the petitioner is well founded and continuance of proceeding
against him would not amount to abuse of the process of the
Court. Consequently, the petition is liable to be dismissed
and it is hereby dismissed.
JUDGE
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