Chand Mohammad vs Chandra Kochar And Ors

The petitioner has preferred this petition un-der Section 482 of Criminal Procedure Code, 1973 against order dated 3rd August, 2016 (Annexure

P/1) passed by Additional Sessions Judge, Neemuch, District Neemuch (MP) in Criminal Revision No.77/2011 whereby order dated 25th July, 2011

(Annexure P/3) de-livered by Judicial Magistrate First Class, Neemuch in Criminal Case No.00/2010 has been affirmed, by which complaint filed by

the petitioner against Officers and Agents of ICICI Bank Limited for commission of offence under Sections 341, 148, 392, 394, 452, 457, 506, 147, 149

and 120-B of Indian Penal Code, 1860 was dis-missed.

Facts leading to filing of the instant petition are that the petitioner is a Fruit Seller, Agents of ICICI Bank Limited had approached him for financing

truck; and on the assurances of services, the petitioner took a loan of Rs.6,00,000/- (Rupees six lakh) for purchasing truck on Hire Purchase Scheme.

The said loan amount was equally divided into 47 installments with interest. The petitioner purchased the truck bearing registration number MP-44 G-

0174 from the said loan amount; and he paid almost 30 installments out of 47 installments and was regularly paying loan amount. On 17.07.2007,

Akram (son of complainant) and second Driver of Truck Mahesh Joshi were going from Manasa to Neemuch for loading the truck and when they

reached near the Degree College, Neemuch, one Jeep coming from Neemuch Side obstructed truck by parking Jeep in front of Truck. Thereafter,

Bank Officers and Bank Agents Suresh and Bhupendra came with 4-5 persons and forcefully entered into truck and obstructed movement of truck.

They snatched original registration certificate, insurance pol-icy and fitness certificate of the vehicle and threatened that if they did not vacate the

truck, then they will kill them. Thereafter, the said persons took away truck of the petitioner forcefully, without permission. The inci-dent was informed

by his son over telephone to the peti-tioner, who in turn inquired from ICICI Bank; and there-after report was lodged at Police Station.

It is further alleged that Police Officers did not take any action against the accused persons. Therefore, the petitioner preferred a writ petition under

Article 226 of the Constitution of India, 1950 before this Court, which was registered as Writ Petition No.9010/2009 and was disposed of on 9th

November, 2010 (Annexure P/2) by granting liberty to the petitioner to approach the Po-lice Authorities and at the same time, Government Advo-cate

had undertaken that on lodging of the report by the complainant / petitioner, they will fairly conduct inquiry into the matter. Then, the petitioner lodged

a complaint before the Police; and due to inaction on their part, the complainant had filed a criminal complaint against the respondents for offence

under Sections 392, 394, 452, 457, 506, 147, 148, 149 and 120-B of Indian Penal Code, 1860. Learned Magistrate recorded statement of the pe-titioner

and his son Akram, Driver Shyamlal and Mehbook under Sections 200 and 202 of the Code of Criminal Procedure, 1973. After considering the com-

plaint, statement of witnesses, learned Magistrate dis-missed the criminal complaint vide order dated 25th July, 2011 (Annexure P/3) holding that it is a

civil matter; and further observed that all the accused persons are not made party in the matter who committed the offence.

It is also submitted by the learned counsel for the petitioner that the petitioner assailed the aforesaid order in Criminal Revision No.77/2011 and also

moved an application under Section 91 of the Code of Criminal Procedure, 1973 with a prayer to direct the respondents to produce all the documents

relating to finance of the truck, but the said revision application was dismissed on 3rd August, 2016 (Annexure P/1) while affirming order dated 25th

July, 2011 (Annexure P/3) passed by the learned Magistrate. It is further submitted that both the Courts below have not at all considered the

averments of the complaint and statement of the complainant's wit-nesses. The revisional Court also committed legal error by relying upon only

documentary evidence produced by the respondents in defence in spite of the fact that the complainant was not given any opportunity to contradict the

documents. The Courts below also failed to consider the fact that the respondents do not have any authority to forcefully take possession of the truck

from the peti-tioner / complainant, as he was in legal possession of the vehicle. This fact is also ignored by the Courts below that financer has a right

to sue for due amount, but he cannot take vehicle forcefully. Both the Courts below also com-mitted error by holding that Mahesh Joshi, Driver of the

truck had surrendered the vehicle to the Company with-out considering the fact that the person who had paid thirty one installments of truck and

which is the only source of his livelihood, will surrender the truck. Under these circumstances, learned counsel for the petitioner prays for setting aside

of the impugned orders.

On the other hand, learned counsel for respon-dent No.2 has supported the impugned order by con-tending that the complaint is frivolous, as no

such inci-dent had happened. The complaint has been preferred only to exert pressure upon the respondent to enter into a compromise; and not to

recover the remaining loan amount. Therefore, the trial Court as well as the revi-sional Court has not committed any error in dismissing the complaint

filed by the applicant under Section 203 of the Code of Criminal Procedure, 1973. Hence, he prays for dismissal of the present revision application.

I have heard the rival contentions of the par-ties, perused the impugned orders as well as record of Courts below.

It is not disputed fact that the applicant took loan of Rs.6,00,000/- for purchasing a truck under Hire Purchase Scheme from ICICI Bank Limited,

Branch Manasa, District Neemuch (MP). As per loan agreement dated 15.10.2004, he agreed to pay loan amount with in-terest in 47 installments.

According to the applicant, he has already de-posited 30 installments out of 47 installments; and he was regularly repaying the loan amount. Even

then, the officials of the respondent â€" ICICI Bank snatched his ve-hicle, without following due process of law; and this fact, has not been denied by

the respondent. According to the respondent, the applicant has not paid installments on its due date and he always deposited the installments af-ter a

long delay. It is further submitted that after 16.07.2007, the applicant has not paid any installment of loan amount, and therefore, loan amount of

Rs.2,69,643/- was due against the applicant. Therefore, Officials of the respondent â€" Bank took possession of the vehicle after following due

process of law. They have also intimated at Police Station Sanyogitaganj, District Indore (MP) about taking of possession of the vehicle. Even after

taking possession of the vehicle, Pre Sale No-tice was issued to the applicant on 20.07.2007 for pay-ment of remaining loan amount, but he did not

take any action on the notice.

It is further submitted that as per Condition (G) â€" Rights and Remedies of ICICI Bank of Commercial Vehicle Loan - cum - Hypothecation

Agreement, the Bank shall be entitled to take possession of the collateral (s), irrespective of whether the loan has been recovered, whenever in the

opinion of the ICICI Bank there is an ap-prehension of any money not being paid or ICICI Bank's security being jeopardized.

It is further submitted that if any event or de-fault occurs or on account of the borrower' failure to per-form his obligation under the agreement,

then the Bank shall be entitled to forthwith take physical possession of the collateral (vehicle), either by itself or through its agents and sell or

otherwise deal with the collateral to enforce Bank's security and recover the borrower's out-standing dues.

In the case of Suryapal Singh v. Siddha Vinayak Motors reported in (2012) 12 SCC 355, Hon'ble Apex Court has held that “Under Hire

Purchase Agreement, it is financier, who is owner of vehicle and person, who takes the loan, retains vehicle only as a bailee / trustee. Therefore,

taking possession of the vehi-cle on the ground of non-payment of installment has al-ways been upheld to be a legal right of the financier.

In the case of Sardar Trilok Singh v. Satyadev Tripathi reported in (1979) 4 SCC 396, while dealing with similar question, Hon'ble Apex Court has

held, as under: -

“We are clearly of the view that it was not a case where any processes ought to have been directed to be issued against any of the accused. On

the well-settled princi-ples of law if was very suitable case where the criminal proceeding ought to have been quashed by the High Court in exercise

of its inherent power. The dispute raised by the respondent was purely of a civil nature even assuming the facts stated by him to be substan-tially

correct. Money must have been advanced to him and his partner by the financier on the basis of some terms settled between the parties. Even

assuming that the agreement entered on 29th March, 1973 was not duly filled up and the signature of the complainant was obtained on a blank form, it

is to be noticed that the amount of the two monthly installments admittedly paid by him was to the tune of Rs. 3, 566/- exactly @ Rs. 1,783/- per

month. The complaint does not say as to when these two monthly installments were paid. In the First Information Report which he had lodged he had

not, stated that the third monthly installment was payable on July 31, 1973. Rather, from the statement in the First Information Report it appears that

the install-ment had already become due on 28-7-1973 when the complainant went out of Kanpur according to his case. The question as to what were

the terms of the settle-ment and whether they were duly incorporated In the printed agreement or not were all questions which could be properly and

adequately decided in a civil court. Obtaining signature of a person on blank sheet of paper by itself is not an offence of forgery or the like. It becomes

an offence when the paper is fabricated into a document of the kind which attracts the relevant pro-visions of the Penal Code making it an offence or

when such a documents is used as a genuine document. Even assuming that the appellants either by themselves or in the company of some others

went and seized the truck on 30-7-1973 from the house of the respondent they could and did claim to have done so in exercise of their bonafide right

of seizing the truck on the respondent's failure to pay the third monthly installment in time. It was therefore, a bona fide civil dispute which led to the

seizure of the truck. On the face of the complaint peti-tion itself the highly exaggerated rated version given by the respondent that the appellants went

to his house with a mob aimed with deadly weapons and committed the offence of dacoity in taking away the truck was so very unnatural and

untrustworthy that it could not sake the matter out of the realm of civil dispute. No body on the side of the respondent was hurt. Even a scratch was

cot given to any body.â€​

From the averments made in the complaint as well as statement of the applicant and his witnesses recorded under Section 200 and 202 of the

Code of Criminal Procedure, 1973, it appears that the dispute be-tween the parties is purely of civil nature. The applicant has also preferred the

complaint before the District Con-sumer Forum; and the same was rejected granting liberty to the applicant to file a civil suit. Under these circum-

stances, this Court is of the view that it cannot be held that the Courts below have erred in rejecting the com-plaint. In the considered opinion of this

Court, the Courts below have taken a holistic view of the matter and rightly rejected the complaint.

Consequently, Miscellaneous Criminal Case No.10411/2016 filed under Section 482 of the Code of Criminal Procedure, 1973 is hereby dismissed,

being de-void of merits.