ARPIT JAIN Vs. VIJAY SISODIYA

JUDGEMENT

(1.) BY this petition under section 482 of the CrPC the petitioner Arpit Jain has prayed for quashment of Criminal Case No. 35600/2013 pending before the Judicial Magistrate First Class, Indore. Briefly stated the facts of the case are that the respondent Vijay Sisodiya had filed a criminal complaint against one Cholamandalam Investment and Finance Co. Ltd. alleging that Tata Truck bearing registration No. 1109 was purchased by the respondent from Sanghi Bros. (Indore) Pvt. Ltd. The agreement of hire purchase was signed by him but since it was in English language, he could not understand the agreement. Counsel urged that he issued 48 security cheques in favour of the company, the vehicle was registered at No. MP46/G -0664. That the installment were payable two months after the purchase, however, the financial condition of the respondent Vijay Sisodia was in dire straits and he could not pay the installment on the stipulated time and on the date of the incident i.e. 23.11.2012 when the vehicle was parked in front of the residence of his brother Surendra Singh at Bicholi Mardana, Indore; one Jabbar along with 2 -3 persons came there at 9 O'Clock in the night and asked his brother to remove the vehicle since they wanted to park their dumper there. They took the keys from Surendra Singh and took away the truck without any permission of Surendra Singh. Hence this report was filed by brother Surendra Singh at P.S. Palasia but the police did not take any action and thereafter the criminal complaint was filed. It also happened that the name of the petitioner and Jabbar were added by way of amendment. Cognizance was taken by the Magistrate for offence under section 379 of IPC against accused Jabbar vide order dated 13.11.2013. Hence this petition for quashment of the order.

(2.) COUNSEL for the petitioner has vehemently urged the fact that the name of the petitioner was added by way of amendment on 3.9.2013 and was an abuse of process of law. The complaint was initially recorded under section 200 of the CrPC and no case was made out for offence under section 379 of the IPC against the petitioner Arpit Jain. Counsel submitted that it was a settled position of law that if the borrower failed to make the payment of installments of loan, the financier is entitled to take possession of the financed vehicle as per the terms of the contract and filing of the complaint was bad in law and the alleged ingredients of the offence under section 379 of the IPC were not made out. It was also alleged that the vehicle was voluntarily handed over by Surendra Singh brother of the complainant and in this sense also the intention to cause wrongful gain or wrongful loss is absent in the present case and the important fact cannot be marginalised is that respondent has admitted that his financial condition was not good and therefore, he could not make the payment of instalments. Similarly there is no mens rea and the petitioner cannot be accused for offence under section 379 of IPC. Counsel prayed for quashment of the further proceedings since it would result of miscarriage of justice and the order was manifestly unjust, unwarranted and perverse. Counsel prayed that the proceedings be quashed.

(3.) FINALLY Counsel relied on Anup Sarmah v. Bhola Nath Sharma and others [ : (2013) 1 SCC 400], to state that in an agreement of hire purchase, the purchaser remains merely a trustee/bailee on behalf of the financier but ownership remains with the latter and if the vehicle was seized by the financier no criminal action can be taken against him as he is only repossessing goods owned by him and there was no reason for interference. Counsel prayed that the petition be allowed and the proceedings in the trial Court be quashed.