ORDER
Partha Sakha Datta, J.
1. By this application under Section 482 of the Cr. P.C. prayer is made for quashing of the proceedings of Barangar PS Case No. 136, dated 6-7-2005 under Section 403/415/420 of the IPC pending before the Court of learned Additional Chief Judicial Magistrate, Barrackpore on the ground of no disclosure of commission of offence through the FIR.
2. The opposite party No. 2 herein lodged an FIR on 6-7-2005 against the present petitioner, the Manager of Kotak Mahindra Bank Ltd. along with some others i.e. Anup Garula, Director of the said company, Pinaki Kanji, an officer of the said company and one Surendra Khanna, Additional Director of the said company under Section 403/415/420 of the IPC alleging the following:
The complainant (O.P. No. 2) purchased a medium goods vehicle of Eicher at the price of Rs. 5,05,000/- pursuant to execution fry her of a hire purchase agreement with M/s. Kotak Mahindra Finance Ltd. which financed a sum of Rs. 4,35,000/- on condition that the opposite party No. 2 would pay the financed sum in thirty five equated instalments of Rs. 16,713/-. A sum of Rs. 3,25,905.05 was paid by the opposite party No. 2 in favour of the company in monthly instalments in terms of the agreement but all of a sudden on 31-3-1999 M/s. Kotak Mahindra Finance Ltd. without any process of law or order of any Court seized the vehicle by force. The complainant approached the company the officials of which took sometime to examine the matter and discussions of several round between the parties took place and lastly the officials came to the house of the complainant to admit that there has been an error and gave out to her that in case resumption of monthly instalment was started in favour of the accused company they would return the vehicle. But the condition was primarily that the complainant (O. P. No. 2) must start resumption of payment of monthly instalment of Rs. 16,713/-. Accordingly, a sum of Rs. 16,713/- was paid on 15-6-1999 by cheque No. 660410 drawn on U. B. I., Ganesh Chandra Avenue Branch but when the complainant approached the company to return the vehicle they assured that they would do so but they did not. Thus the complainant has been cheated of the sum of Rs. 87,799/- which was the amount paid b the complainant initially plus Rs. 3,25,905.50p + Rs. 16713/- = Rs. 4.30.417.50P. The company on several occasions showed various vehicles to the complainant's husband for inspection for the purpose of compensating her by providing an alternative vehicle but all acts on the part of the company came out to be false assurances. On 26-5-2005 when the complainant met the accused she was assured that they would return back the vehicle within a week but they did not. Surprisingly, once Shri Ranjan Banerjee of 17N/4, R.B. Road, Paikpara, Calcutta-700 002 approached the complainant on 17-6-2005 that the officers of the company offered him to sell the vehicle and he could proceed accordingly if the complainant had no objection. The said Ranjan Banerjee inspected the vehicle at Sodhpur Crossing Petrol Pump and then the complainant came to know of the nefarious design of the accused company who was illegally trying to dispose of the vehicle which still stood registered in the name of the complainant and hence the complaint.
3. This FIR leading to registration of Baranagar Police Station FIR No. 136, dated 6-7-2005 under Sections 403, 415, 420 of the IPC is sought to be quashed by the petitioner who is the accused No. 1 in the case of the following grounds.
4. The hire purchase agreement which was admittedly executed by the complainant in favour of the company on 5-4-1997 had several clauses in it of which clause 9, clause 13, and clause 14A are important in this that under clause 9, the ownership of vehicle would rest with the company, and purchase of the vehicle would become effective only upon total performance by the complainant of the terms and conditions of the agreement, clause 13 of the agreement stipulates a clause of termination of the agreement in the event of the hirer making default in payment of any sum payable by her and clause 14(A) of the agreement which is a consequential provision entitled the company (owner) to enter upon the premises where the product is situated and take possession of the vehicle without being liable in any manner whatsoever. Though the opposite party No. 2 initially paid the monthly hire charges she was subsequently found to be tardy in making payment of her dues and finally on account of non-payment of the monthly instalments on her part the company was forced to terminate the agreement and repossess the hired vehicle in compliance with clause 14 (a) of the said hire purchase agreement on 31-3-1992. The factum of repossession of the vehicle because of non-payment of monthly hire charges was communicated to the complainant, by telegram on 31-3-1999. The complainant was also informed that the total amount recoverable was Rs. 3,31,277.52p. which if would remain unpaid for would constrain the company to sell the vehicle. Then the complainant filed an application under Section 9 of the Arbitration and Conciliation Act before the learned City Civil Court, Calcutta under Misc. Case No. 3096 of 1999 and the accused company filed a written objection. But the complainant withdrew the application on the ground that the Court did not possess territorial jurisdiction. No offence under Section 403 has been committed by the accused on the face of the complaint because it was the complainant who was responsible for contravention of the terms of the hire purchase agreement and resultantly when the ownership of the vehicle rested with the company and the complainant failed to exercise her right of option for purchase it cannot be said that the company dishonestly misappropriated the property by the act of repossession in terms of the agreement. The provision of Section 420 of the IPC is also not attracted because to constitute an offence under Section 420 of the IPC, it is apparent that there must be false and fraudulent representation at the inception of the transaction between the accused and the aggrieved. But here in the instance case the company repossessed the vehicle strictly in terms of the hire purchase agreement and it can not said the company at the very inception of commercial transaction with the complainant had dishonest intention of cheating the complainant, nor there was any false or fraudulent representation made by the company-financer to the hirer who failed to honour the terms and conditions of the agreement. Thus it is contended that the FIR does not disclose any cognizable offence against the petitioner which accordingly may, therefore be quashed.
5. The de facto complainant filed an affidavit in opposition on 14-12-2005 setting out the events chronologically. On 5-4-1997 hire purchase agreement was drawn up between the parties with the complainant making down payment of Rs. 87,229/-. Between 5-7-1997 and 28-2-1999 the complainant paid in total sum of Rs. 4,10,417/-. Between 5-3-1999 and 19-3-1999, a sum of Rs. 20,000/- were paid in two instalments. The vehicle was seized on 31-3-1999. Complainant received the telegram of repossession of the vehicle on 31-3-1999. The complainant paid Rs. 16,713/- on 16-6-1999. After seizure of the vehicle on 4-4-2003, the petitioner (Officer of the company) wrote a letter to his agent requesting him to allow her husband of inspection of the repossessed vehicle. Another letter was also written to that effect by the petitioner to his authorized agent on 29-4-2003 and yet a third letter was also written to that effect on 10-11-2004. On 17-6-2005 one Ranjan Banerjee sought no objection certificate from the complainant towards finalisation of the deal in respect of his proposed purchase of the vehicle from the company. The criminal case was then filed on 27-6-2005. In this affidavit in opposition it has been stated that the averments in the revisional applications are false, that there was no delay in lodging the case, that she was the legitimate owner of the vehicle, that no terms and conditions of the agreement was violated by her, that there was no occasion for repossession or seizure of the vehicle, that even after repossession or seizure of the vehicle payment was made, that the learned Magistrate acted properly in entertaining the petition under Section 156(3) of the Cr. P.C., that the seizure of the vehicle was effected without notice, that the accused assured of returning back the vehicle but they failed, and according there is no reason for quashment of the proceeding.
6. I have heard Mr. Milan Mukherjee, appearing with Mr. Debashis Roy and Mr. Sandipan Ganguly for the petitioner; Mr. Rajesh Mehta, learned Advocate for the opposite party No. 2, and Mr. R.S. Chottopadhyay, learned Advocate for the State. Because of the de facto complainant having filed an affidavit-in-opposition and the series of annexures in support of thereof certain facts appeared to be admitted and beyond dispute. The facts are that on 15-4-1997 the de facto complainant had entered into a hire purchase agreement with the Kotak Mahindra Finance Ltd. in terms of which she made a down payment of Rs. 87,799/- and the company provided for a financial assistance of Rs. 4,35,000/-. There was an agreement of payment of the financed sum in 35 equated monthly instalments in the sum of Rs. 16,713/- each by the complainant in favour of the company that the complainant initially made certain amount of money the exact of which would come around to, according to the complainant, Rs. 3,25,905/-. It is not the case in the affidavit-in-opposition nor is it the submission of learned Advocate for the opposite party No. 2 that there had been at all material times there has not been total compliance with the terms of the agreement dated 5-4-1997. Unquestionably, there was commission of default in payment of the equated monthly instalments. Both the parties have annexed hire purchase agreement. Clause 9 of the agreement clearly provides that the hirer would have the option to effect purchase upon compliance with the terms and conditions of the agreement. In clause 13, there is stipulation for termination of the agreement at the instance of the financer in the event of hirer making breach of contract. Again under clause 14A the financer reserved to itself the right of repossession of the vehicle in the event of the financer failing to perform his part of the contract. It appears from the agreement that the legal ownership of the vehicle rested with the financer while the vehicle was registered in the officer of the Motor Vehicles Department in the name of the hirer. The further admitted position is that the hirer having failed to pay the equated monthly instalments the financer repossessed the vehicle on 31-3-1999. Subsequent to the seizure of the vehicle the parties met with each other from time to time and on one occasion the complainant paid a sum of Rs. 16,713/- through a cheque drawn on U. B. I., Ganesh Chandra Avenue Branch, Calcutta. It is also not disputed that some after having seizure or repossession of the vehicle by the financer the; hirer during 1999 filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 before the learned City Civil Court, Calcutta under Misc. Case No. 3096 of 1999 which was got withdrawn allegedly on the ground of lack of territorial jurisdiction of the concerned learned Court.
7. In the backdrop as above the question is whether on the facts set out in the FIR any cognizable offence under Section 403/420 has been made out or not.
8. Mr. Rajesh Mehta, learned Advocate for the de facto complainant takes me to a decision in Ashok Kumar Singh v. State of West Bengal and Ors. as reported in : AIR2004Cal46 where it was held that the financer cannot take forcible possession of the vehicle with the help of musclernari in case of default of the hirer in paying instalments because hire purchase agreement is in effect a loan transaction and the hirer is the owner within Section 2(30) of the Motor Vehicles Act. It is submitted by Mr. Mehta that taking repossession of the vehicle by means of force on the part of the financer was unlawful and contrary to the law which resultantly legally entitles the hirer to make complaint alleging criminal breach of trust and of cheating. It is submitted that an FIR can be quashed in the circumstances if it manifestly would appear that there is a legal bar against the institution or continuation of the proceeding, where the allegations in the FIR taking at its face value and accepted in their entirety do not constitute the offence alleged and where the allegations constitute an offence but no evidence of legal character was available towards entertainability of the complaint. The decision in State of MP v. Awadh Kishore Gupta as reported in AIR 2004 SC 517 : 2004 Cri LJ 598 has been referred to along with the land mark decision in State of Haryana v. Bhajanlal 1992 Supple (1) SCC 335 : 1992 Cri LJ 527. As regards the delay alleged in the FIR, a decision in Harman Singh v. Everest Construction Company and Ors. as reported in : 2004CriLJ4178 has also been cited in support of the proposition that when the complaint is not hit under Section 468 of the Cr. P.C. delay in making the complainant cannot be a bar to its entertainability and such delay cannot be the ground of quashment of a criminal proceeding.
9. Mr. Debashis Roy, learned Advocate, appearing for. the petitioner herein submitted a written note of argument and; cited plethora of case laws to buttress his point that if the FIR is examined with reference to the decision in State of Haryana v. Bhajanlal or R.P. Kapoor v. State of Punjab : 1960CriLJ1239 , it would clearly, reveal that the facts alleged do not constitute an offence. It is submitted that when the hire purchase agreement which admittedly is a lawful one clearly provides entitlement of the financer to repossess the vehicle the act of repossession in the event of the failure of the hirer to make payment of the dues in terms of the agreement would be a lawful one and by no amount of law or logic can it be said that in such circumstances the financer repossessing the, vehicle committed an offence of criminal breach of trust of cheating. Mr. Mukherjee refers to the decisions in Central New-Bury Car Auction Ltd. v. Unity Finance Ltd. and Anr. (Mercury Motors Third Parties) of England law Report 1956(3) All E.R. 905, Pooranmal Ear v. Sadhoram 1965 All. L.J. 214, (Jagadeesan v. State of Karnataka and Anr.), 1978 Cri LJ 1546, (Sardar Trilok Singh and Ors. v. Satyadeo Tripathi) (1979) 4 Supreme Court Cases 396 : 1980 Cri LJ 822, (Sri P.H. Arunachalam v. State of Orissa and Anr.) (1989) 2 OCR 6 : 1989 Cri. LJ 739, (Sriram Transport Finance Co. Ltd. v. Sri Khaishiulla Khan and Ors.) 1993 Cri LJ 1069 (knt.), (Manipal Finance Corporation Ltd. v. T. Bairagya and Anr.) 1994 Supp (1) Supreme Court Cases 507, (State Bank of India v. S.B. Shah Ali (died) and Ors. : AIR1995AP134 , (K.A. Mathai alias Babu and Anr. v. Kora Bibbikutty and Anr.) : (1996)7SCC212 , (Dr. Hafiz Samim Alam v. State of Bihar and Anr.), 1996(1) East Cr. C81 (Pat), (Jyoti International v. State of West Bengal) 1998 C. Cr. LR (Cal) 405, Rama Machinery Corporation Ltd. v. Standard Chartered Bank, Madras) AIR 1999 Madras 137, (Sanjoy Roy and Anr. v. State of West Bengal and Anr.), 2000 C. Cr. LR (Cal) 114, (2001), (Charanjit Singh Chadha and Ors. v. Sudhir Mehra) : 2001CriLJ4255 , (Magma Leasing Ltd. v. State of West Bengal and Anr.) 2004 C. Cr. LJ (Cal) 409, (Prakash Dubey v. State and Anr.), C.R.R. 1016 of 2004, (Magma Leasing Ltd. v. Abu Rahul Gaznabi); C.R.R. No. 576 of 2005 Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. and Anr. : AIR2005SC3766 Municipal Corporation of Delhi v. Gurnam Katir : AIR1989SC38 , Zandu Pharmaceutical Works Ltd. and Ors. v. Md. Sharaful Haque and Ors. (2005) 1 C Cr. LR (SC) 23 : 2005 Cri LJ 92, Raymond Ltd. (JKFT Division) v. H.V. Doshi & Brothers Pvt. Ltd. (2006) 1 C. Cr. LR (Cal) 186, Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr. : AIR2005SC752 . The Regional Manager and Anr. v. Pawan Kumar Dubey : (1976)IILLJ266SC , B. Shama Rao v. Union Territory of Pondicherry : [1967]2SCR650 and submits that the decision of this Court in Ashoke Kumar Singh's case : AIR2004Cal46 is clearly distinguishable from the present one and there are decisions of the Supreme Court as also of other High Courts approving the right of the financer of taking repossession of property consequent upon the breach of contract committed by the hirer. An English decision in Central New Bury Car Auction Ltd. v. Unity Finance Ltd. and Anr. (Mercury Motors, third party) of England law reported in 1956(3) All E.R. 905 has been cited at the first instance in support of the legal proposition that the person in possession of a car and its registration book is not necessarily the owner of the car. The decision in Pooranmal ER v. Sadhoram, 1965 All Law Journal 214 has been cited wherein it has been held that where the party, bound by provisions of agreement contravened a provision of the contract, cannot subsequently make any complaint against the other availing itself of the rights enjoined in the agreement, and if the agreed means are used by one of the parties to the contract in the event of the other party committing breach thereof the party committing breach cannot complain. In this decision, it has been observed that since the law relating to hire purchase is in a rudimentary state, and there is not yet any specific statute governing the rights and liabilities of the parties to a transaction of hire purchase.
10. In Sardar Trilok Singh's case 1980) Cri LJ 822 it has been held by the Supreme Court that even assuming that the appellants either by themselves or in the company of some others went and seized the truck from the house of the respondent, they could have done so in exercise of their bona fide right of seizing the truck because of the failure of the respondents to pay monthly instalments in time. And accordingly, since it was a bona fide civil dispute which led to the seizure of the truck the proceeding against the financer on account of the financier having repossessed the vehicle was quashed by the Hon'ble Supreme Court. In interpreting Section 457 of the Cr. P.C. in the case of P.H. Arunachalam 1989 Cri LJ 739 (supra) it was held that in the case of hire purchase agreement the financer continues to be the owner and until and unless all the instalments are paid by the borrower the financer is entitled to custody. That registration of the vehicle in the name of the hirer is of no defence to the hirer has been explained in M/s. Sreeram Transport Finance Co. Ltd. (1993 Cri LJ 1069) (supra) by the Karnataka High Court in this way that simply because there is registration certificate in the name of the hirer it does not follow that he has become the absolute owner having all the proprietary rights therein, by invoking Section 2(30) of the Motor Vehicles Act 1988, and the absolute ownership of the vehicle does not pass to him until all the conditions in the agreement are fulfilled or he opposed to purchase the vehicle. In this decision it has also been held by the Karnataka High Court that the financer cannot be charged with an offence of theft under Section 378 of IPC in the case of a repossession of the vehicle by the financer because the element of mens rea is totally absent in the person seizing the vehicle. In the case of Manipal Finance Corporation Ltd. (supra) the Magistrate dropped the complaint of theft of vehicle initiated by the hirer against the financer but directed to return of the vehicle to the hirer. The Hon'ble Supreme Court held that there cannot be any restoration of the vehicle to the hirer without making good the charge of theft and the vehicle was directed to be restored to the possession of the appellant/financer. There is Andhra Pradesh Decision also in the State Bank of India v. S.B. Shah Ali : AIR1994AP134 (supra) to the effect that when the goods are hypothecated by creating a charge the hypothecatee can take action to enforce the charge according to law and he need not approach the Court as the deed provides for taking possession of the property in case of default of the hypothecator. In the case of K.A. Mathai alias Babu and Anr. (supra) the Hon'ble Supreme Court in a similar situation quashed the charge under Section 379 of the IPC when the financer took possession of the vehicle pursuant to hire purchase agreement on account of the hirer defaulting in payment of instalments to the financer. Interestingly, in Dr. Hafiz Samim Alain's case the question was raised before the Patna High Court whether the financer would be justified to use force while taking possession of the property. The Patna High Court held that 'Seized' according to Chamber's Twentieth Century Dictionary, means 'to take by force, to take possession of, to apprehend, and it was observed incidentally that the act of seizure will always be an unpleasant act and will be resisted by the person who runs the vehicle and some force may also be necessary in this regard. But such actions on the part of the financer will be completely covered by the terms and conditions of the agreement and cannot be said to be a criminal act. This Court in Jyoti International v. State of West Bengal held that when financer is the owner of the vehicle and hirer defaults in payment of instalments the financer is entitled to seize the vehicle from the hirer and no criminal case can lie against such financer. The decision in Sanjoy Roy and Anr. v. State of West Bengal and Anr. of this Court is also to the same effect. The question was raised on behalf of the complainant as to why no notice was served upon the hirer complainant before repossession of the vehicle and Mr. Roy answers the question with reference to the decision of Madras High Court in Shriram Machinery Corporation Ltd. v. Standard Chartered Bank, Madras AIR 1999 Mad 137 (supra) where it was held that principle of natural justice or prior notice before seizure has no manner of application and is not necessary when default is committed by the hirer and the terms of contract is breached. It has been observed that if the prior notice is issued before seizure of the vehicle naturally the plaintiff will take away the vehicle from the jurisdiction of the State and the very purpose of exercising the power of seizure will be taken away. In the decision in Charanjit Singh Chadha v. Sudhir Mehra 2001 Cri LJ 4255 (supra) the Hon'ble Supreme Court gave legal exposition of the concept of hire purchase agreement in this way that the hirer is simply paying for the use of the goods and for the option to purchase them. The hirer would not become the owner of the property until he pays the entire instalments. Explaining the clauses of the hire purchase agreement in the case decided the Supreme Court says that under the agreement, the owner of the vehicle has an irrevocable licence to enter any building or premises or place where the vehicle may be or is supposed to be for the purpose of inspection as also repossession and the owner will not be liable for any criminal action at the instance of the hirer in the event of the hirer committing default. In this case it has been held that if the hirer himself has committed default by not paying the instalments and under the agreement the appellants have taken up repossession of the vehicle the respondent cannot have any grievance, the respondent cannot be permitted to say that the owner of the vehicle has committed theft of the vehicle or criminal breach of trust or of cheating or of criminal conspiracy as alleged in the complaint. It was further held that when the agreement specifically says that owner has got a right to repossess the vehicle there cannot be any basis for alleging that the appellants have committed criminal breach of trust or of cheating. This decision of the Hon'ble Supreme Court is very relevant for our purpose since in the instant case before us it is essence of the complainant that the financer committed criminal breach of trust and of cheating by not returning the vehicle and by repossessing the vehicle. In the said decision it was also held that hire purchase agreement in law is an executory contract of sale and confers no right in them on the hirer until the conditions for transfer of property to him have been fulfilled. Therefore, the repossession of the goods as per the terms of the agreement may not amount to criminal offence. It was held that the learned single Judge seriously flawed in his decision and failed to exercise jurisdiction vested in him by not quashing the proceedings initiated against the appellants. Taking a cue from this decision of the Supreme Court this Court in Magma Leasing Ltd. v. State of West Bengal (supra) held the same position of law which for the sake of brevity and precision need not be reproduced further.
11. The decision in Ashok Kr. Singh v. State of West Bengal AIR 2004 Cal 46 (supra) has to be distinguished from the facts pleaded in the case before us. There His Lordships was exercising writ jurisdiction where hypothecatee prayed for direction upon the police for restoration of the vehicle and in exercise of the writ jurisdiction an order was passed accordingly with special reference to the decision of the Supreme Court in Sundaram Finance Ltd. v. The State of Kerala : [1966]2SCR828 but the facts in that reported case are again distinguishable from ours in this that in the reported case it was expressly recited in the agreement that the vehicle had been given as a security for the loan advanced by the appellants and as a security for repayment of the loan the customer executed a promissory note for the amount paid by the appellants to the dealer of the vehicle. In our case though in the petition of complaint it was alleged that the financer without any order of the Court and by application of force seized the vehicle, the main thrust of the complainant: is not the allegation of use of force but commission of alleged criminal breach of trust and criminal mis application. The essence of the complaint is not of alleged application of force for the purpose of repossession of the vehicle because there was a stray sentence that vehicle was seized illegally by force but is an alleged fact that the complainant has been cheated of her money and the case has been registered under Section 403/420 of the IPC. It must not be lost sight of the fact that the complaint has been lodged about seven years after the repossession of the vehicle and during the period of intervening of seven years, the complainant initiated an action under Section 9 of the Arbitration and Conciliation Act, 1996 where the financer made their appearance and filed written objection but the complainant got his case withdrawn. The case of Charanjit Singh Chadha (2001 Cri LJ 4255) (supra) which is a decision subsequent to the decisions in Sundaram Finance Ltd. (supra) is a complete answer to our case and the facts in Charanjit Singh Chadha (supra) are exactly identical to the case of ours, while the facts in Sundaram Finance Ltd. (supra) are in different context. In Charanjit Singh (supra), it has been clearly laid down by the Hon'ble Supreme Court that when the financer takes repossession of the vehicle because of commission of breach of contract by the hirer no case of theft or of criminal breach of trust or of cheating can be complained of.
12. To punish an offender under Section 403 of the IPC it has to be proved that the property must belong to a person other than an accused and that the accused must have misappropriated the property or converted it to his own use and that there must be dishonest intention on the part of the accused. Herein the case it cannot be said having regard to the legal position as has been expounded by the Hon'ble Supreme Court as also other High Court of India in through catena of decisions of the hirer is not the owner. Secondly, the financer cannot be said to have misappropriated the property because of repossession of the vehicle following breach of contract committed by the hirer and unquestionably in the act of repossession of the vehicle by the financer there cannot be any dishonest intention because the financer was acting simply on the terms of the agreement. That no charge of theft can lie has been well explained by a number of decisions of the Supreme Court as also of the other High Courts. With respect of the charge or cheating under Section 420 of the IPC, the case of Charanjit Singh Chadha 2001 Cri LJ 4255 (supra) is a valuable guide, and moreover the definition of cheating as has been given in Section 415 of the IPC if taken into account does not lead one to hold that averments of cheating are at all present in the facts alleged. Because there was no fraudulent or dishonest inducement to the complainant to deliver any property to any person, or to the financer, nor was there any intentional inducement on the part of the financer to the hirer to do or omit to do anything which he would not do or omit if he were not so deceived. The single Bench Decision in the case of Ashoke Kumar Singh (AIR 2004 Cal 46) (supra) does not help us because here in this revisional application there has not been any prayer for direction upon any authority for repossession of the vehicle from the financer and restoration of the same to the hirer.
13. My attention has been drawn to a decision in Manager, ICICI Bank Ltd. v. Prakash Kaur : AIR2007SC1349 wherein their Lordships disapproved of the mode whereby vehicle was removed by the bank from the possession of the respondent. Their Lordships were not in favour of the practice of hiring recovery agents who are musclemen and the same has been deprecated. Mr. Debashis Roy, learned Advocate appearing for the petitioner submits that this decision can be said to have no manner of application to the facts in the case before us, firstly, because in the case reported involving ICICI Bank, the main thrust of the respondents before the Hon'ble Court was against the method of removing the vehicle from their possession by the ICICI Bank but herein, in the instant case the manner of recovery of the vehicle is not the main issue because when we would go through the petition of complaint as a whole it would appear that the de facto complainant alleged that she was cheated to the tune of Rs. 4,30,417.50 p. because of removal of the vehicle and in spite of payment of one instalment even after taking the vehicle in custody, the vehicle was not returned back to her. The second submission of Mr. Roy is that in the decision of the Hon'ble Supreme Court the earlier decisions of the Hon'ble Supreme Court which has been referred to by him were not considered. It has further been submitted by Mr. Roy that with reference to the decision in the Regional Manager v. Pawan Kumar Dubey : (1976)IILLJ266SC it was held by the Hon'ble Supreme Court that it is the rule deducible from the application of law to the facts and circumstances of the case which constitute its ratio decidendi and not some conclusion based upon facts which may appear to be similar. Mr. Roy submits that in the case before the Hon'ble Supreme Court there was a compromise between the parties and the observation of the Hon'ble Court was not the ratio decidendi. In this connection the decision in the Municipal Corporation of Delhi v. Gurnam Kaur : AIR1989SC38 has also been referred to.
14. It appears from the decision of the Hon'ble Supreme Court in Manager, ICICI Bank Ltd. : AIR2007SC1349 (supra) that the observation of the Hon'ble Court came to have been made by way of a passing reference and in a separate judgment His Lordship Hon'ble Mr. Justice A.R. Lakshman made some detailed suggestions regarding the mode of the recovery of the amount by the bank. His Lordships observed that these were guidelines both for lending and recovering but in absence of any effective overseeing body abuse continues. Now in the case before us the complaint was lodged by the complaint more than six years after the vehicle was repossessed. After repossession of the vehicle there took place meeting between the parties for a number of times followed by payment of one instalment and then exchange of correspondences. In between the years initiation of a proceeding under Section 9 of Arbitration and Conciliation Act took place which also was got withdrawn by the complainant. The essence of the complaint was not against repossession of the vehicle by the manner alleged but against based upon facts which may appear to be similar. Mr. Roy submits that in the case before the Hon'ble Supreme Court there was a compromise between the parties and the observation of the Hon'ble Court was not the ratio decidendi. In this connection the decision in the Municipal Corporation of Delhi v. Gurnam Kaur : AIR1989SC38 has also been referred to.
15. It appears from the decision of the Hon'ble Supreme Court in Manager, IClCI Bank Ltd. : AIR2007SC1349 (supra) that the observation of the Hon'ble Court came to have been made by way of a passing reference and in a separate judgment His Lordship Hon'ble Mr. Justice A.R. Lakshman made some detailed suggestions regarding the mode of the recovery of the amount by the bank His Lordships observed that these were guidelines both for lending and recovering but in absence of any effective overseeing body abuse continues. Now in the case before us the complaint was lodged by the complainant more than six years after the vehicle was repossessed. After repossession of the vehicle there took place meeting between the parties for a number of times followed by payment of one instalment and then exchange of correspondences. In between the years initiation of a proceeding under Section 9 of Arbitration and Conciliation Act took place which also was got withdrawn by the complainant. The essence of the complaint was not against repossession of the vehicle by the manner alleged but against repossession of the vehicle on the ground that some payments were made and in spite of assurance vehicle was not returned back. It was the allegation of cheating and criminal breach of trust that is the main thrust of the complaint against the petitioner and in the circumstance the alleged more of recovery of the vehicle does not come to be the central point for consideration in the case. The offence alleged was one under Section 406/420, IPC and I have analysed hereinbefore that in the circumstances obtaining in the given situation the ingredients of Section 406/420, IPC are absent. In the decision in Managing Director, Orix Auto Finance (India) Ltd. v. Shri Jagmander Singh : (2006)2SCC598 their Lordships held:
Before we part with the case, it is relevant to take note of submission of learned Counsel for the hirer that in several cases different High Courts have passed orders regarding the right to re-possess where High Courts have entertained writ petitions including writ petitions styled as PIL on the question of right of financiers to take possession of the vehicle in terms of the agreement. It is stated that direction have been given to the RBI for framing guidelines in this regard. If it is really so, the orders prima facie have no legal foundation, as virtually while dealing with writ petitions subsisting contracts are being re-written. It is still more surprising that petitions styled as PIL are being entertained in this, regard. Essentially these are matters of contract and unless the party succeeds in showing that the contract is unconscionable or opposed to public policy the scope of interference in writ petitions in such contractual matters is practically non-existence. If agreements permit the financier to take possession of the financed vehicles, there is no legal impediment on such possession being taken. Of course, the hirer can avail such statutory remedy as may be available. But mere fact the possession has been taken cannot be a ground to contend that the hirer is prejudiced. Stand of learned Counsel for the respondent that convenience of the hirer cannot be overlooked and improve seizure cannot be made There cannot be any generalization in such matters. It would not be therefore proper for the High Courts to lay down any guideline which would in essence amount to variation of the agreed terms of the agreement. If any such order has been passed effect of the same shall be considered by the concerned High Court in the light of this judgment and appropriate orders shall be passed.
16. In an unreported judgment of this Court FMA 484 of 2004 (reported in : AIR2006Cal295 ) (Arindam Basu v. Amal Kumar Basu) all the important decisions of the Hon'ble Supreme Court including the Managing Director. Orix Auto Finance (India) Ltd. v. Shri Jagmander Singh : (2006)2SCC598 were discussed and it has been held by their Lordships of the Division Bench that the principle of law that in case of immovable property, nobody can be dispossessed except by due process of law is not available. In the case of movable property relating to hire purchase agreement where there is a clause that in case of default the financer would be entitled to take possession of the vehicle. Whether the mode of recovery of the vehicle was just or what should be the mode of recovery of the vehicle is not the question before me and what was agitated is that the complainant was allegedly cheated by the petitioner and that the latter allegedly misappropriated the money. This question has been answered in the body of the Judgment arid I am of the opinion that on the facts of the case the offence under Section 406/420 of the IPC has not been made out where the complaint does not disclose ingredient of the aforesaid offences. It is but fit, having regard to the principle in State of Haryana v. Bhajanlal 1992 Cri LJ 527 and R.P. Kapoor v. State of Punjab : 1960CriLJ1239 that the complaint should be quashed; Therefore, having regard to the decisions above I am of the judgment that the revisional application succeeds and the criminal case under Section 403/420 should be quashed.
17. The revisional application is allowed, the proceedings in the Baranagar P.S. Case No. 136, dated 6-7-2005 under Section 403/420 of the IPC is quashed.
18. A copy of the order shall be sent to the learned ACJM, Barrackpore with reference to the aforesaid case.
19. Urgent Xerox certified copies, if applied for, be given to the parties as expeditiously as possible.