HDFC BANK LTD. Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is filed to quash and set aside order dtd. 3/8/2019 passed by learned Additional Sessions Judge, Bhuj, District Kutch in Criminal Revision Application No.114 of 2018.

(2.) Brief facts of the case are as under :-

(3.) Learned advocate Mr.D.P.Kinnariwala along with learned advocate Mr.Balar for the petitioner submitted that learned Sessions Court has exceeded its jurisdiction under Sec. 397 read with Sec. 401 of Cr.P.C. He would submit that jurisdiction of learned Sessions Court under Sec. 397 read with Sec. 401 of Cr.P.C. is limited to call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding. It is submitted that perusal of questioned order indicates that learned Sessions Court on its own gave finding that HDFC bank has forcefully taken possession of tractor from first informant and action of the bank therefore, is against principle of rule of law. It is submitted that since first informant defaulted in payment of loan transaction, in view of arbitration clause in hypothecation agreement, HDFC bank has taken possession of the tractor and permitted to recover loan amount from first informant, yet first informant has not paid loan amount which gave right to HDFC bank to recover possession of tractor. He relied on the judgment in the case of Charanjit Singh Chadha v/s. Sudhir Mehra [2001 (7) SCC 417] as well as in the case of Magma Fincorp Ltd. v/s. Rajesh Kumar Tiwari [2020 (10) SCC 399] and submitted that HDFC bank has not committed any error in taking possession of the tractor which was hypothecated to the petitioner. It is submitted that private complaint was filed initially for the offence under Sec. 381, 403, 414, 418 and 114 of IPC. However, taking possession of tractor which has been hypotecated cannot be considered as theft defined in Sec. 378 . He would submit that essential ingredient of Sec. 381 is not satisfied nor essential ingredient of Sec. 403 . It is submitted that learned Sessions Court has exceeded its jurisdiction and order of issuance of process itself is bad in law and therefore, it is submitted to quash the impugned order by allowing the present petition.