AMANDEEP SINGH BAINS Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Shriram Equipment Finance Company Limited (SEFC) a nonbanking finance company, financed a vehicle Tipper bearing registration No.CG-10/C-5834 to borrower Sanjay Kumar Sahu under hire purchase agreement by lending a loan of ? 21,50,000/- to be repaid in 46 monthly installments and the total amount to be repaid was ? 30,07,398/-. The said vehicle was registered with a clear indication that the vehicle is hypothecated with the said finance Company. The said loan was paid to Mr. Sahu by executing hypothecation agreement on 30-5-2011 with clause 6(b) in the shape of Repossession of Asset entitling the financier to take possession of the hypothecated assets by the company or its authorised representative. The said borrower defaulted in making payment of installments of the borrowed amount and all the 22 cheques given became dishonoured leading to issuance of registered notice dated 4-5-2013 and 4-6-2013 to the owner informing him that cheques issued to the company have become dishonoured and the owner was asked to make payment of installments on account of the defaults. Ultimately, getting no result, the matter was referred to the Arbitral Tribunal appointed in terms of the arbitration clause contained in the Loan cum Hypothecation Agreement in which after hearing, the learned Arbitrator on 4-10-2014 passed an order in favour of the said company (SEFC) granting the application under Section 17(1) of the Arbitration and Conciliation Act, 1996 and authorising the finance Company to take possession of the said vehicle from the person in possession. Thereafter, SEFC on 5-1-2015, 4-2-2015 and 22-2-2015 authorised Aman Repo Agency to take repossession of the vehicle, as the said agency is authorised to act as a recovery agent. The finance company SEFC informed on 6-2-2015 its intention to invoke clause 6(b) of the agreement and ultimately, the vehicle was seized from the possession of the driver on 23-2-2015 in accordance with clause 6(b) of the agreement and the same was duly informed to the borrower and the owner of the truck to take back the coal which was loaded in the Tipper at the time of seizure. But, therefore, on 1-3-2015, one Chhatram Nirmalkar claiming to be driver of the owner of the vehicle i.e. Sanjay Kumar Sahu, lodged a report in Police Station Seepat for the offence punishable under Sections 394 & 365 read with Section 34 of the IPC pursuant to which the said offences have been registered against the petitioner herein and two other persons.

(2.) Now, only the petitioner who is the Proprietor of Aman Repo Agency seeks quashment of the first information report (FIR) registered against him for the aforesaid offences in which return has been filed by the State opposing the petition and controverting the allegations made in the petition and justifying the action of police.

(3.) Mr. Manoj Paranjpe with Mr. Hemant Gupta, learned counsel appearing for the petitioner, would submit that the hypothecation agreement entered into between SEFC and the borrower clearly provides authorising the finance company to take possession in the event the installments are not paid and it is not in dispute that the borrower did not pay any of the installments and remained fully defaulter and after giving due notice, the company has invoked clause 6(b) of the agreement and has repossessed the vehicle after the order of the Arbitral Tribunal for which no offence is said to have been committed and the FIR registered against the petitioner for the offences alleged against him is nothing but a sheer abuse of the process of the court and taking the allegations in the FIR in its entirety, no offence under Sections 365 & 394 read with Section 34 of the IPC is made out as per the parameters indicated by the Supreme Court in the matter of State of Haryana and others v. Bhajan Lal and others, 1992 Supp1 SCC 335, therefore, the FIR deserves to be quashed, qua the petitioner by granting the petition.