SHIV KUMAR JALAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners have filed this application for quashing the entire proceedings including the order dated'27-1-2004 passed by learned Chief Judicial Magistrate, Muzaffarpur in complaint case No. 2133 of 2003 taking cognizance against the petitioners under Sections 406, 409, 420, 423, 379 and 504 of Indian Penal Code (In short "IPC").

(2.) The case of petitioners is' that petitioner No. 1 is proprietor of M/s. Shiv Kumar and Company, petitioner No. 2 is holder power of attorney of M/s. Shiv Kumar and Company, petitioner No. 3 is Manager Ganpati Autofin Services, Muzaffarpur and petitioner No. 4 is receiver agent.

(3.) According to the petitioners, a Commander Jeep bearing No. BR 05 AP/4454J was let out to opposite party No. 2 under hire-purchase agreement and arbitration agreement by petitioner No. 1 who runs finance company in the name and style of Shiv Kumar and Company (Annexure-1). As per the terms of agreement, opposite party No. 2 was to pay 23 monthly instalments at the rate of Rs, 11,500/- per month except the first month and as per clause 8 of the agreement, it was bilaterally agreed that contract was liable to be terminated and company was empowered to take possession of the vehicle in case the instalments were not paid within the stipulated time and an agreement of arbitration was also entered into between the parties in which the parties agreed that all disputes be referred to an arbitrator (Annexure-2). The further case of petitioners is that complainant defaulted in making payment of instalment and the company, instead of invoking clause 8 of the agreement, referred the matter to arbitrator so that opposite party No. 2 may have an opportunity of making good his default. The arbitrator published the award on 12-7-2002 and after hearing declared the company of petitioner No. 1 as absolute owner of the vehicle and declared amount of Rs. 7,00,000/- (Annexure-3). After the award, the company filed a petition before City Court, Kolkata for declaration of decree in terms of award and the Court was pleased to appoint a receiver by order dated 15-3-2003 who was empowered by Court for taking possession of vehicle and to sell the same by private treaty or by public auction and to hand over the sale proceeds to decree-holder (Annex- ure-4). Pursuant to order dated 15-3-2003 passed by Chief Judge in title execution case No. 61 of 2003, receiver Saikat Kumar appointed petitioner No. 4 as his agent and executed a power of attorney to petitioner No. 4 for performing above acts as were ordered by Court's order dated 15-3-2003 (An'nextire-5). Petitioner No. 4. in compliance of order dated 15-3-2003 passed in title ex- ecutton case No. 61 of 2003, came to Bettiah for taking the possession of vehicle for selling the same and there he came to know that vehicle was in Bettiah and he went to mufassil Police Station and gave a written information and prayed to provide help for taking possession of the vehicle and with the aid of Mufassil Police Station, Bettiah, vehicle was taken in possession (Annexure 6). After seizure of vehicle, petitioner No. 4 handed over the vehicle to Mufassil Police Station, Bettiah for safe custody (Annexure-7) and again on 4-5-2003, he came to Bettiah and took the possession of the vehicle from Mufassil Police Station (Annexure-8). The vehicle was, thereafter, sold to one Rajeshwar Prasad on 19-7-2003 (Annexure-9). On 3-9-2003, opposite party No. 2 filed a case against the petitioners alleging that he was cheated by the petitioners who had hired the vehicle to him and the Court took cognizance against the petitioners for offences punishable under Sections 406, 420, 409, 423, 329, 504 of IPC (Annexure-10). According to petitioners, they have committed no offence and petitioner No. 1 is the decree-holder of title execution case No. 61 of 2003, petitioner No. 2 is the constituted attorney of M/s. Shiv Kumar and Company, petitioner No. 4 was appointed as the agent of the receiver and petitioner No. 3 has left Muzaffarpur since last seven months and is presently living at Kolkata. According to petitioners, taking possession of a vehicle by a financier on default in making the payment of vehicle which was subject to hire-purchase agreement is not a criminal offence. Petitioners have prayed for quashing the entire proceedings including the order dated 27-1-2004 passed by Chief Judicial Magistrate, Muzaffarpur in complaint case No. 2133 of 2003 filed against the petitioners by opposite party No. 2.