PUNJAB KASHMIR FINANCE LIMITED Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE petitioner M/s Punjab Kashmir Finance Limited, Balbir Tower, G.T. Road, Jalandhar through Shri Nirmal Singh, Assistant Manager (T), Legal Department (hereinafter referred to as the petitioner) has invoked the provisions of Section 482 of the Code of Criminal Procedure(for short Cr.P.C.) for quashing an FIR No. 805 dated 28.12.2005 under Section 392 of the Indian Penal Code (for short IPC), Police Station Sadar, Gurgaon. The case has been registered at the instance of respondent Tayyab Hussain son of Isab Khan resident of village Uttawad, Tehsil Hathin, District Faridabad (hereinafter referred to as the complainant), who entered into hire-purchase agreement on 12.10.2002, vide which he got financed a truck bearing Reg.No. HR38H-2131. The total sum of finance was Rs. 7,42,460/-, which was to be repaid by the complainant in 34 monthly instalments commencing from 11.11.2002. On account of the default committed by the complainant in paying the instalments, the truck was repossessed by the petitioner on 10.2.2005. Even after the complainant made the payment of Rs. 60,000/-, out of the defaulted amount and further gave an assurance that he will make the payment of the balance defaulted amount, the truck was not released. On showing inability by the complainant to give the instalments in time, arbitration proceedings also started. The complainant also filed a civil suit for restraining the petitioner from taking possession of the vehicle forcibly. The petitioner further submitted that since on account of default in payment of the instalments, the vehicle was taken away by the re-possessing agency on 28.12.2005, the complainant had lodged a complaint, on the basis of which an FIR was lodged by the police against the petitioner under Section 392 IPC. Thereafter, the vehicle was got released by the complainant from the Court on Superdari on 31.12.2005. The petitioner has sought quashing of the said FIR on the grounds that the truck was taken for the reason that the complainant had failed to deposit the monthly instalments; the petitioner was entitled to get back the possession due to the default committed by the complainant; the FIR is a cryptic and vague; motive of the police is to harass the petitioner and his officials; the initiation of criminal proceedings is an abuse of the process of criminal law in order to evade the instalments of loan, to which he is liable under the hire-purchase agreement and that the FIR is not based on total true and complete facts and a case under Section 392 IPC is not made out.

(2.) REPLY to the petition has been filed by the complainant (respondent No. 2), wherein, he admitted that he had got financed one LP Truck-1613 bearing Reg.No. HR38H-2131 from the petitioner Finance Company on 12.10.2002 in the sum of Rs. 6,77,710/- i.e. Rs. 5,50,000/- as financed amount and Rs. 1,27,710/- as interest, which was to be paid in 35 monthly instalments of Rs. 20,000/- each; he has been paying the financed amount to the petitioner regularly and out of the total amount, he had already paid Rs. 6,61,986/- and a sum of Rs. 15,724/- remained balance; the petitioner has intentionally exaggerated the amount and started demanding Rs. 2,09,849/- more from him, for which a notice dated 24.5.2005 was issued to him; when he went to the petitioner company to get cancelled the notice, he was not given any heed, rather he was threatened that his vehicle will be snatched; the officials of the petitioner company tried to forcibly snatch the truck from him on 10.8.2005 from his village Rupraka near Hathin, District Mewat; thereafter, he filed a civil suit; again on 28.12.2005 when the complainant along with his driver Ali Hasan was going towards Gurgaon, then the petitioner along with 3-4 more persons got down from the car and climbed up the truck and threatened them. They also drove away the truck for about one kilometer towards Shahzadpur and stopped near a farm-house, where the complainant and his driver were left. Consequently, the present case was got registered against the petitioner. Arguments heard. Records perused.

(3.) BEFORE I lay my hands to decide whether the re-possession was legal, it will have to be determined, whether the document executed between the parties was a hire-purchase agreement or a loan amount agreement. Hire-purchase agreement is that under which, an owner gives the goods to a hirer, giving the hirer an option to purchase the goods. On the other hand, when a person borrows money and pays it to vendor, transaction between the customer and the vendor will be a loan transaction. In a hire-purchase agreement, the hirer is under no obligation to buy. Where the customer is himself the owner and with a view to finance his purchase, he enters into an agreement in the form of hire-purchase agreement, it will be a loan transaction.