CASE NO.: Appeal (crl.) 267 of 2007 PETITIONER: MANAGER, I.C.I.C.I. BANK LTD RESPONDENT: PRAKASH KAUR & ORS DATE OF JUDGMENT: 26/02/2007 BENCH: AR. Lakshmanan & Altamas Kabir JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (Crl.) 15/2007)
ALTAMAS KABIR,J.
Leave granted.
This appeal has been filed by the Manager, I.C.I.C.I. Bank
Ltd. against the order dated 7th December, 2006, passed by the
Allahabad High Court in Criminal Miscellaneous Petition
No.11210/2006 disposing of the petition with a direction upon
the S.S.P. Allahabad, to ensure the registration of a case on the
basis of Annexure VII to the Writ Petition and its investigation
by a competent police officer.
Before adverting to the subject-matter of the writ petition,
it may be pointed out that in the writ petition, the writ
petitioner has chosen to implead as respondents, not only the
Union of India and other police authorities of Uttar Pradesh but
also the President/Chairman/Managing Director of the I.C.I.C.I.
Bank, the General Manager, Loans, I.C.I.C.I. Bank, Branch
Sardar Patel Marg, Civil Lines, Allahabad and M/s. Kartik
Associates, Banaras Automobiles, Kodopur, Ram Nagar,
Varanasi, through its authorised Goonda Officers and Goonda
Employees and Institutions created against the law for doing
work and persons of the Institutes, Criminals to do work for
I.C.I.C.I. Bank.
The subject matter of the writ petition relates to a loan
taken by the writ petitioner from the I.C.I.C.I. Bank, Allahabad
Branch for purchase of a truck. It appears that the writ
petitioner defaulted in payment of the instalments and in
terms of the agreement entered into between the writ
petitioner and the Bank, the writ petitioner’s truck was taken
possession of by the bank authorities by use of force on 13th
July, 2006. It also appears that the writ petitioner requested
the Chief Manager (Loans), I.C.I.C.I.Bank, Sardar Patel Marg,
Civil Lines, Allahabad, for release of the truck which was alleged
to have been forcibly taken possession of by M/s. Kartik
Associates, acting as the agents of the Bank. The writ
petitioner appears to have also written to the said agents on
25th July, 2006, requesting them to provide details of the
instructions given to them to seize the petitioner’s truck.
Since the truck was not returned to the writ petitioner, she
caused a legal notice to be served on M/s. Kartik Associates but
the same was returned unserved as having been refused.
The writ petitioner contended that the Bank and its
officials had systematically conspired to cheat the writ
petitioner by advancing the loan for purchase of the truck and
accordingly wrote to the police authorities on 3rd/4th
September, 2006, requesting them to register the First
Information Report of the alleged offences punishable under
Sections 120-B, 400/ 403/ 406/ 409/ 417/ 418/ 419/ 420/
421/ 422/ 424/ 466/ 467/ 468/ 469/ 571 and 511 IPC. It
was also urged that since no steps had been taken by the police
authorities on the basis of the application dated 3rd/4th
September, 2006, the respondent Nos. 1, 2, 5, 6, 7 & 8, being
the Union of India and other officers of the U.P. Police, had
committed offences punishable under Sections 166/ 167/ 212/
217/ 218/ 221/ 120-B IPC and Section 13 of the Prevention of
Corruption Act.
On the basis of the aforesaid allegations, the writ
petitioner, interalia, prayed for a direction upon the respondent
Nos. 1, 2 , 4, 5, 6 7 & 8 to register a First Information Report in
Civil Lines Police Station, Allahabad, against the respondent
Nos. 9 to 13 and during the period of investigation, to save the
losses of the writ petitioner by recovering the truck along with
all the documents relating to the truck and to hand over the
same to the writ petitioner. The writ petitioner also prayed for a
writ of mandamus to direct the respondent Nos. 1 and 3 to
cancel the licence of I.C.I.C.I. Bank and for other ancillary
reliefs.
On the basis of the aforesaid writ application, the Division
Bench of the Allahabad High Court while disposing of the writ
petition passed the following order:-
“The relief sought in this Writ Petition is for
issuance of a direction for Registration of
the case against the Respondents.
Heard learned counsel for the petitioner and
the learned AGA for the State and perused
the record.
The contention for the learned counsel for
the petitioner is that a perusal of
Application dated 03/09/06 (Annexure VII)
to the Writ Petition discloses commission of
a cognizable offence. It was obligatory on
the part of the police to have registered the
case and to proceed with the investigation
but it was not done. The petitioner is a lady
and she has approached this Court for the
relief sought therein and in support of his
contention he has relied on Ramesh Kumari
vs. State (N.C.T. of Delhi) & Ors., reported in
2006 (1) Crimes 229 (SC) wherein the Apex
Court was pleased to issue direction for
registration of the case.
We have perused the application dated
03.09.2006 which shows the alleged
commission of cognizable offence.
Consequently we direct the SSP Allahabad
to ensure the registration of a case on the
basis of Annexure-VII to the Writ Petition
and its investigation by a competent police
officer.
The Writ Petition stands disposed off
accordingly.”
Appearing for the appellant, Mr. Harish Salve, learned
senior advocate with Mr. Mukul Rohatgi, learned senior
advocate, submitted that the disputes between the parties, if
any, were entirely of a civil nature relating to the instalments
payable by the writ petitioner on the loan taken by her from the
Bank and accounting of all payments actually made and there
was no element of criminal intent in the entire transaction. Mr.
Salve submitted that while the writ petition had been filed with
the intention of exerting pressure on the Bank and its
authorities to release the truck, the High Court should have
also looked into the pleadings and the frame of the writ petition
before passing the impugned order dated 7th December, 2006.
A glance at the pleadings would make it quite clear that the
dispute involved was of a purely civil nature and did not
warrant any direction as has been given.
However, while make his submissions, Mr. Salve also
conveyed the Bank’s willingness to compromise the matter by
foregoing the interest which was payable on the outstanding
dues which amounted to Rs.1,62,917/-. Mr. Salve also
submitted that in the event the writ petitioner had any doubts
regarding the payments made by her and credited to her
account, she could sit with the officers of the Bank along with
her agent and verify the accounts and in the event it was found
that any payment made by her had not been credited to her
account, she would be entitled to receive credit for the same.
Mr. Salve submitted that if the writ petitioner paid an
initial sum of Rs.50,000/- (Rupees Fifty thousand) only, the
truck could be returned to her and upon final accounting the
balance principal amount found payable by her could be paid
off in suitable instalments.
On behalf of the writ petitioner/respondent, it was
contended that the amount said to be due towards principal
was highly inflated since according to the writ petitioner she
had defaulted in making payment of only one instalment.
Be that as it may, we are inclined to accept Mr. Salve’s
suggestion and we accordingly direct that upon deposit of a
sum of Rs.50,000/- (Rupees Fifty thousand ) only, the Bank
shall forthwith release to the writ petitioner or her agent the
truck bearing registration No.UP-78-AN-1951 which had been
seized from the writ petitioner’s possession. The writ petitioner
assisted by her agent, will sit with the Bank officials for the
purpose of reconciling the accounts and in the event it is found
that the writ petitioner had not been given credit for certain
payments made by her, such payments are to be taken into
account and the balance principal amount will then be paid by
the writ petitioner-respondent to the Bank in six equal monthly
instalments, the last instalment being for any broken amount, if
any. The writ petitioner-respondent undertakes not to
encumber or dispose of the truck till the final accounting is
completed and all dues are cleared. In case of default in
payment of subsequent instalments, if any, the Bank will be
entitled to re-possess the vehicle in accordance with law.
The Bank shall forego the interest said to be payable by
the writ petitioner and the writ petitioner will also not be
entitled to make any claim on account of any damage and wear
and tear that may have been caused to the writ petitioner’s
vehicle while in the custody of the Bank and its officials.
The appeal is accordingly allowed and the order impugned
in the appeal is set aside. If any First Information Report has
already been registered in terms of the impugned order, the
same shall also stand quashed along with the investigation
commenced thereupon.
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.
There shall be no order as to costs.
