UMA SHANKAR GOPALKA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the entire criminal proceedings initiated against the petitioners in Complaint Case No. 1204/2002 including order taking cognizance dated 27-1-2003, whereby and whereunder cognizance for an offence under Sections 323, 341, 379, 406 and 120B, IPC has been taken against the petitioners.

(2.) Facts giving rise to the filing of this application are that the opposite party No.2 (hereinafter referred to as the "complainant") has filed a complaint case stating therein that vehicle was purchased by the financier namely, M/9. Gopalka Auto Finance Ltd. on 23-2-1998 on the basis of hypothecation agreement and as per agreement the said vehicle was financed by the financier of Rs. 7,55,150/- with insurance for the pe riod of three years [23-2-1998 to 23-2-2001) and 35 Instalments were fixed as per the agreement entered Into by both the parties. Due to money problem the complainant could not pay the Instalment amount till 25th Sept. 1998 then financier Issued a legal notice to the complainant for recovery of the due Instalment of Rs. 75.407/- and thereafter vehicle sold to complainant was seized by the financier against the due amount. It is further alleged that after seizure of the vehicle the complainant paid Rs. 3.38.150/- against the due amount of Rs. 7.55.150/- and for recovery of total due amount of Rs. 4,17,000/- fresh instalment was fixed by the financier. It is alleged that as per the fresh agreement complainant paid total Rs. 3.12.600/- upto 5-1-2002 and only Rs. 62.400/- was the amount, which remained due. For remaining dues of Rs. 62.400/- the vehicle was again seized on 28-6-2002. When complainant came to know about the seizure of the vehicle then he approached the staff of accused No. 1 and he saw that accused Nos. 1 and 2 more persons started abusing the complainant and threatened with dire consequences and asked him to bring Rs. 1.51.000/- for release of the vehicle and petitioners obtained signatures forcefully on blank paper. The complainant obtained loan from Allahabad Bank and paid the amount and vehicle was released to him and thereafter he was called at the office of the petitioners, where he was brutally assaulted.

(3.) Learned counsel for the petitioner submitted that no case as alleged is made out against the petitioners. In fact a sum of Rs. 1.93.648/- was due.against the complainant but matter was settled at Rs. 1.61.000/-. It was further pointed out that the complainant made default in payment of instalment and as per terms and conditions of the hire-purchase agreement, the financier had taken the possession of the vehicle and had also intimated the same to the concerned police station, within whose Jurisdiction the vehicle was seized (An-nexure-2). It was also pointed out that no offence of criminal breech of trust is made out against the petitioners because are the proprietor and director of the financier company and they are deemed to be the owners of the vehicle, in respect of which an agreement has been executed and as such no case is made out under'the aforesaid sections. It was also pointed out that under clause 3 of the hire-purchase agreement dated 23rd Feb. 1998, there was an agreement between that unless and until the payments are completely made to the owner that is the financier company in accordance with the terms and conditions of the agreement, the vehicle shall remain the property of the owner and in that view of the matter no case under Sections 379.or 406. IPC is made out. It was also pointed out that from the complaint petition also it will appear that complainant had made default on- several times in payment of instalments, as a result of which was seized and this is not improper and when seizure has been made, therefore, complainant has come out with a false allegation only In order to harass the petitioner. Reliance in this connection has been made upon 1996 (7) SCC 212, wherein it has been held that on failure to make payment of instalment, the financier has right to resume possession even if the agreement does not contain any clause of resumption of possession and here in the instant case there was an agreement under clause 3 of the agreement dated 28th February 1998. Reliance was further placed upon 2001 (7) SCC 417 : (AIR 2001 SC 3721 : 2001 Cri LJ 4255) wherein it has been held that in hire-purchase contract, recovery of possession of goods by owner, financier, as per terms of the hire-purchase agreement, no criminal case Is made out.