Sabya Sachi Dutta vs State Of Assam And Ors.

Heard Mr. G. Saikia, learned counsel for the petitioner and Mr. T. N. Mishra, learned Addl. Public Prosecutor, Assam.

By this petition under Section 482 Cr.P.C., the petitioner has prayed for setting aside and quashing of the FIR, dated 14.07.2016, lodged by the

respondent No. 2, whereupon Silchar P.S. Case No. 1867/2016 under Section 420/34 IPC has been registered against him.

The petitioner’s case, in a nutshell, is that he is working as the Area Legal Manager of TATA-MOTOR Finance Ltd.-a company. On

06.11.2012, the respondent No. 2 purchased a commercial LPT3118 Truck Vehicle availing a loan of Rs.18,43,000/only from the said company,

wherein the respondent No. 3 stood as guarantor. The respondent No. 2 paid an amount of Rs.5,20,769/- only as margin money. The mode of

repayment was entered in Loan-cum-Hypothecation-cum-Guarantee Agreement, dated 06.11.2012. As per the said agreement, the respondent No. 2

undertook to repay the loan amount together with interest and charges, in 45 monthly instalments. The said agreement was supported by an

irrevocable General Power of Attorney in favour of the company empowering it to take back the vehicle and sell the same by public auction or private

treaty and adjust the net sale proceeds towards the outstanding amount payable under the loan. If the respondent No. 2 defaulted in paying the amount

due as per the payment schedule. However, the respondent Nos. 2 & 3 defaulted in paying the monthly instalments, warranting the company to send

legal notice, on 21.10.2014, demanding payment of an outstanding amount of Rs.15,86,349.17/-, as on 20.10.2014 but did not respond. However, on

09.12.2014, the respondent No. 2 issued a cheque amounting to Rs.4,68,386/-, but on presentation, Assam Gramin Bikash Bank, Cheragi Bazaar

Branch, returned the same dishonoured with remark of insufficient fund. Therefore, as per Clause 23 of the said agreement, dated 06.11.2012, the

dispute was referred to a sole arbitrator and the sole arbitrator passed an order in Arbitration Proceeding No. TMFL/144/2014 as herein below

extracted:

“(a) The respondent No. 1 as a borrower and respondent No. 2 as a guarantor shall jointly and severally, pay to the claimants a sum of

Rs.15,86,349.17/- together with further interest thereon at the rate of

18% per annum from 21st October, 2014 till payment and/ or realization; (b)Â It is declared that the amount mentioned in clause (a) above is secured

by a valid and subsisting Hypothecation of vehicle being TATA LPT3118TC bearing registration No.AS01EC2949, Engine No. B

591803121E63257479 and Chasis No. MAT466379C2E10185 in favour of claimants and the Claimants are entitled to enforce and realize the amounts

due and payable by the respondents by recovering/ taking possession/repossession of the said vehicle and sell the same by public auction or private

treaty and appropriate the net sale proceeds thereof towards the outstanding amounts due and payable by the respondents; and

(c) The respondents shall pay a sum of Rs.5000/- towards cost of arbitration and Arbitrator’s feesâ€​.

The petitioner has contended that pursuant to the said arbitral award, dated 06.11.2012, the Authorized Repossession Agency was informed to take

possession of the vehicle with due intimation to the Police. Accordingly, the authorized agency had given intimation to Jalukbari P.S., by a repossession

letter vide No. RP/LOAN/East10969, dated 31.01.2015, for taking possession of the vehicle from the borrower, the respondent No. 2 herein and

accordingly, took repossession of the vehicle vide Post Repossession Intimation Letter bearing No. LOAN/East-10969, dated 31.01.2015. Thereafter,

by a notice, dated 06.02.2015, the company requested both the respondent Nos. 2 and 3 to settle the outstanding loan amount, within two days, failing

which the company would be at liberty to sell the vehicle in its “as is where is†basis, but there was no response. In the meantime, a complaint

under Section 138 of the N.I. Act was filed, where the respondent No. 2 contested. However, the respondent No. 2 lodged the impugned FIR, dated

14.07.2016, inter-alia, alleging that the petitioner took the cheques deposited by way of security of the vehicle and obtained various signatures in

printed forms and also copy of the Land Deed, but the petitioner seized the vehicle, on 08.12.2014 and sent the vehicle to another place. It was further

alleged that based on signed papers, the petitioner manufactured documents and obtained an award from the arbitrator and thereby cheated the

innocent people like him.

Mr. G. Saikia, learned counsel for the petitioners, submits that the impugned FIR, even if taken to be true in its entirety or face value, does not

constitute any offence of cheating and the petitioner being the Law Officer and Power of Attorney Holder acted as per procedure, on behalf of the

company and as such, the allegations are apparently civil in nature, for which, the remedy lies in the Civil Court. Mr. Saikia, therefore, relying on the

principle enunciated by the Supreme Court in Arup Sarmah Vs. Bhola Nath Sarmah & Ors., reported in (2013) 1 SCC 400, submits that as no criminal

prosecution is maintainable, in the backdrop of the facts, the impugned FIR may be set aside and quashed.

Mr. T. N. Mishra, learned Addl. Public Prosecutor appearing for the State respondent No. 1, submits that the petitioner, who is the Law Officer of

the Company, acted in terms of the hire-purchase agreement executed between the company and the respondent No. 2, in respect of the vehicle in

question and thus, the vehicle being seized by the financier company, through its authorized agency following the arbitration award, no criminal action

can be maintainable when the financier repossessed the vehicle for default in payment of the loan amount.

Perused the petition and copy of the documents annexed therewith.

The Supreme Court happened to consider the legal position in a similarly situated fact situation and referred therein as herein below quoted;

“4. In Sardar Trilok Singh & Ors. v. Satya Deo Tripathi, reported in AIR 1979 SC 850, the Supreme Court examined the similar case wherein the

truck had been taken in possession by the financier in terms of hire purchase agreement, as there was a default in making the payment of instalments.

A criminal case had been lodged against the financier under Sections 395, 468, 465, 471, 12-B/34, I.P.C. The Court refused to exercise its power

under Section 482, Cr.P.C. and did not quash the criminal proceedings on the ground that the financier had committed an offence. However, reversing

the said judgment, this Court held that proceedings initiated were clearly an abuse of process of the Court. The dispute involved was purely of civil

nature, even if the allegations made by the complainant were substantially correct. Under the hire purchase agreement, the financier had made the

payment of huge money and he was in fact the owner of the vehicle. The terms and conditions incorporated in the agreement gave rise in case of

dispute only to civil rights and in such a case, the Civil Court must decide as what was the meaning of those terms and conditions.

In K.A.Mathai v. Kora Bibbikutty, reported in (1996) 7 SCC 212, the Supreme Court had taken a similar view holding that in case of default to

make payment of instalments financier had 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. In such an eventuality, it cannot be held that the financier had

committed an offence of theft and that too, with the requisite mens rea and requisite dishonest intention. The assertions of rights and obligations

accruing to the parties under the hire purchase agreement wipes out any dishonest pretence in that regard from which it cannot be inferred that

financier had resumed the possession of the vehicle with a guilty intention.

In Charanjit Singh Chadha v. Sudhir Mehra, reported in (2001) 7 SCC 417, the Supreme Court held that recovery of possession of the vehicle by

financier-owner as per terms of the hire purchase agreement, does not amount to a criminal offence. Such an agreement is an executory contract of

sale conferring no right in rem on the hirer until the transfer of the property to him has been fulfilled and in case the default is committed by the hirer

and possession of the vehicle is resumed by the financier, it does not constitute any offence for the reason that such a case/dispute is required to be

resolved on the basis of terms incorporated in the agreement. The Court elaborately dealt with the nature of the hire purchase agreement observing

that in a case of mere contract of hiring, it is a contract of bailment which does not create a title in the bailee. However, there may be variations in the

terms and conditions of the agreement as created between the parties and the rights of the parties have tobe determined on the basis of the said

agreement. The Court further held that in such a contract, element of bailment and element of sale are involved in the sense that it contemplates an

eventual sale.

the law can be summarised that in an agreement of hire purchase, the purchaser remains merely a trustee/bailee on behalf of the financier/financial

institution and ownership remains with the latter. Thus, in case the vehicle is seized by the financier, no criminal action can be taken against him as he

is re-possessing the goods owned by himâ€​.

The case, in hand, clearly shows that the petitioner’s company repossessed the vehicle in question through due process of law and in terms of

the hire-purchase agreement and the arbitration award. Therefore, the dispute being out and out civil in nature, the remedy does not lie in criminal

proceeding, although alleged act of criminal flavor is added to it. Applying also the principles enunciated by the Supreme Court in State v. Bhajan Lal,

reported in 1992 Supp (1) 335 and in the above referred cases, this Court is of the opinion that the allegations made in the FIR, even if they are taken

at their face value and accepted in their entirety, in fact, do not prima facie constitute any offence or make out a case against the petitioner

specifically, which is punishable under the penal offences and as such, continuation of the investigation would certainly amount to the abuse of the

process of law and occasion in miscarriage of justice.

Resultantly, the petition stands allowed.