SHEIKH NIYAJ AZIZ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Applicants in this application under section 482 of Criminal Procedure Code are seeking to quash the proceedings against them in Criminal case No. 850/2004 pending in the Court of Judicial Magistrate First Class, 9th court , Nagpur. Charge-sheet filed on 18. 9. 2004 for the offences punishable under section 341 read with section 34 of the Indian Penal Code.

(2.) Brief facts leading to this application, may be stated thus. The respondent No. 2 had taken loan from the Finance Company g. N. A. C. Financial Services Limited for purchasing a Car Opel Astra to the tune of rs. 2,90,000/ -. He had executed a promissory note and the loan agreement on 21. 4. 2003. The loan agreement amongst other condition provided a clause for repossession of the vehicle by the finance company through itself or through agents, servants, representatives etc. It is alleged that said vehicle was in possession of his wife on 1. 5. 2004, when she was proceeding in her car MH 31 AG 1120 by the side of Tatya tope Hall, at that time, some 8 persons came on four motorcycles and the car was halted, she was taken out from the said car and they took out away cash of Rs. 20000/-, besides her jewellery in the car and also the car. Therefore, she lodged report to Police Station, ranapratapnagar, and the offence under section 395, 509, read with section 34 of I. P. C. vide crime No. 132/2004 was registered. After due investigation the applicants accused were charge-sheeted for the offences punishable under section 341 read with section 34 of the Indian Penal code by the aforesaid charge-sheet in the criminal Case No. 850/2004. The applicants seek to quash that proceedings.

(3.) It is the contention of the learned counsel for the applicants that there was an agreement of repossession of the vehicle for non payment of the stipulated instalments in pursuance of the loan granted to the respondent No. 2. The said vehicle was repossessed, through the agents of the finance committee to recover the said amount, i. e. Shri Sai Agencies. Applicants are the recovery agents. It is contended that despite the notices even by registered post, the respondent No. 1 and 2 did not make the payment of the installments. In fact a registered notice was sent through the counsel to respondent No. 2 on 22. 10. 2003 calling upon him to pay the installments. It was also made clear that the said vehicle was liable to be repossessed. The respondent No. 2 had deliberately failed to pay the amount due. It was also informed that as the cheques issued by respondent No. 2 were dishonoured, they could be prosecuted for the offence punishable under section 138 of Negotiable Instruments Act besides 406 of the Indian Penal Code. It is submitted that despite this, the due amount was not paid so the finance company issued a repossession authority letter to the agent M/s Shri Sai Agencies and accordingly the said agency repossessed the said vehicle on the relevant date for which the respondent No. 3 has lodged false report. It is further contended that the respondent No. 2 had filed special Civil Suit No. 331/2004 seeking injunction against the finance company and for fresh possession of the said vehicle, the said suit was dismissed by the order dated 1. 11. 2006, which reads thus: