1 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR W.P. No.1404/2012 KEDAR SINGH VS. STATE OF M.P. & OTHERS Present: Hon’ble Shri Justice Rajendra Menon. Shri A. P. Singh, learned counsel for the petitioner. Shri Sanjeev Kumar Singh, learned Panel Lawyer for respondents No.1 to 7. Shri Rohit Sohgaura, learned counsel for respondent No.8. _________________________________________________ Whether approved for reporting: Yes/ No ORDER
(21.2.2013) Seeking a direction to the police authorities to register a criminal case against officers of Indus Ind Bank Ltd. particularly respondent No.8 Shri Mahesh Singh in pursuance to a report Annexure P/8 submitted by the police authorities on 31.12.2011 and further seeking for quashing a show cause notice issued by the Regional Trasport Authority, Rewa on 29.12.2011 as contained in Annexures P/10(A) and P/10(B), this writ petition has been filed”
2. Petitioner claims to be owner of two trucks bearing not MP17HH/0460 and MP17HH/0251. The aforesaid trucks were purchased by the petitioner after obtaining the loan of Rs.13 Lacs and Rs.17 Lacs respectively and the vehicle was purchased under a Hire Purchase Scheme of the Bank. Be it as it may be, records indicate that petitioner did not submit the installment for repayment of loan in time, as a result the amount outstanding against the petitioner mounted and therefore, it is seen that according to the petitioner on 6.11.2011, the truck in question was taken away by the representatives of the Bank from the garage of one Lallu Mistri with the help of a crane belonging to Satnam Crane Services. It is stated that in a illegal manner and by use of force, possession was taken over and therefore, petitioner lodged complaint with various authorities particularly the police authorities on 8.11.2011, 17.11.2011 and 28.11.2011. The Superintendent of Police and Inspector General, Rewa directed the Deputy Superintendent of Police to conduct enquiry. The Officer conducted enquiry and vide Annexure P/ 8 submitted a report on 31.12.2011 holding that the truck has been taken over by the representatives of the Bank in an illegal manner by use of force and therefore, action should be taken. The first grievance of the petitioner is that in pursuance to this report as no action is taken against the officers of respondent Bank particularly, respondent No.8, the prayer is that direction be issued to the Superintendent of Police and Inspector General of Police, Rewa to take 3 cognization of the report Annexure P/8 dated 31.12.2011 and register a criminal case against respondent No.8 and other officers of the Bank. That apart, it is stated that after taking over of the truck as respondent No.8 has requested the Regional Transport Officer, Rewa to get the registration changed and for the said purpose, a show cause notice is issued on 29.12.2011, second prayer made is that show cause notices be quashed.
3. Shri A. P. Singh, learned counsel for the petitioner took me through the documents available on record particularly the complaints and the statement submitted by the petitioner and the report Annexure P/8 to submit that by use of force and employing illegal methods taking over possession of the truck from the garage in question having been established, there is no justification on the part of the police authorities in not taking action against the officials of the Bank. Referring to a Circular issued by Reserve Bank of India in pursuance to certain directions issued by the Supreme Court in the case of ICICI Bank Ltd. Vs. Prakash Kaur - (2007)2 SCC 71.it is stated that possession taken in the manner done is illegal. It is stated that respondents have filed false and fabricated documents to show that show cause notice has been issued to the petitioner and action has been taken on the basis of consent and surrender document submitted by the petitioner. Taking me through the surrender document Annexure P/4, notices issued to the petitioner vide Annexure R-8/10 and R-8/11 and certain documents available 4 on record particularly the undertaking submitted by the petitioner Annexure R-8/5, it is argued that at the time of grant of loan many signatures of the petitioner in blank papers were taken and not by forging these documents and by an illegal method recording certain surrender letter on behalf of the petitioner, the Bank has come out with a case that the possession is taken over after consent of the petitioner, after the surrender deed and show cause notice issued to him, which according to the petitioner is not correct. Inter alia contending that to justify their illegal action not forged and fabricated documents are being produced to show that show cause notice was issued and action is taken after giving due opportunity to the petitioner.
4. By filing rejoinder and documents I.A. No.16224/2014, learned counsel has tried to indicate to this Court various reasons to say that documents are forged and signatures have been affixed in an illegal manner. Submitting that the possession of the truck is taken over by using force and provisions contained in Section 13 and 14 of the Secutarization and Reconstruction of Financial Assets Act have not been followed and in an illegal manner the possession of the truck is taken over, interference is sought for. Apart from placing reliance in the case of Prakash Kaur (supra) my attention is also drawn to a subsequent judgment of Supreme Court in the case of Citicorp Maruti Finance Ltd. Vs. S. Vijayalaxmi - (2012)1 SCC 1 to say that a hirer is not entitled to take possession of the mortgage vehicle by use 5 of force and without following due process of law. Accordingly Shri A. P. Singh, learned counsel for the petitioner argued that the manner in which possession is taken over cannot be approved, it is a process contrary to law and as forged and fabricated documents have been used to show consent of the petitioner for surrendering the vehicle and issuance of notice to the petitioner, action be taken against the respondents.
5. Shri Rohit Sohgaura, learned counsel appearing for respondent No.8 refutes the aforesaid and submits that when the petitioner was granted loan, he was agreed to the terms and conditions, vehicle was under the Hire Purchase scheme and being under the Hire Purchase Scheme Bank remains the owner of the vehicle and is entitled to take over possession of the vehicle after following the due process of law. Contending that after the judgment rendered by the Supreme Court in the case of Prakash Kaur (supra), guide lines were laid down by Union of India vide Annexure P/9 and in this case the entire action is taken after due consent and approval of the petitioner, respondents resist the claim of the petitioner. Learned counsel for the respondent Bank invites my attention to the notices issued to the petitioner as contained in Annexure R-8/6, undertaking given by the petitioner vide Annexure R-8/5 and his inability to pay the vehicle loan, it is stated that on 4.11.2011 itself petitioner vide Annexure R-8/7 give his consent for taking over of the vehicle as he was not in a position to repay the loan. Contending that the document Annexure R-8/7 bears the signature of the 6 petitioner and his guarantor and after consent of the petitioner and therefore requirement of Circular Annexure P/9 is followed and law laid down in the case of Prakash Kaur (supra) and in the case of S. Vijayalaxmi (supra) will not apply in the facts and circumstances of the present case, Shri Saugoura prays for dismissal of the writ petition.
6. Placing reliance on a recent judgment of Supreme Court in S.L.P.(Crl.) No.8907/2009 - Anup Sarmah Vs. Bhola Nath Sharma and others decided on 30.10.2012 Shri Sohgoura argued that when as per Hire Purchase agreement the vehicle is taken over by the financier after issuing notice and is seized in accordance to the terms and conditions of the Hire Purchase agreement, no criminal action can be taken with regard to dispossession of the vehicle or goods. Vehementally opposing the prayer made by the petitioner with regard to forgery and manipulation of the documents and contending that the Bank has acted in accordance with law and by saying that no documents or signatures of the petitioner is misused and denying each and every allegations made with regard to fabrication or manipulation alleged by the petitioner, learned counsel argued that as per the Hire Purchase agreement, vehicle in question has been taken over by the officers of the respondent Bank in accordance with the requirement of law after due consent and notice to the petitioner. It is stated that notices Annexure R-8/6, R-8/10 and R-8/11 have been issued through the postal authorities and it is stated that fact can be verified by the postal 7 authorities. As notices have been issued and petitioner himself consented, it is stated that no relief can be granted to the petitioner.
7. I have heard learned counsel for the parties at length and perused the record. The Supreme Court in the case of Prakash Kaur (supra) and subsequently in the case of S. Vijayalaxmi (supra) has held that even under the Hire Purchase agreement vehicle is proposed to be recovered, the recovery and dispossession of the vehicle or the good has to be in accordance to law and not by use of force. It is held that even though under the agreement the hirer namely the Bank herein is the owner of the property but he is not entitled to take back possession by use of force for default of payment. In pursuance to the law laid down in the case of Prakash Kaur (supra) Circulars and guide lines have been issued by the Reserve Bank of India vide Annexure P/9 wherein a procedure is contemplated for taking action in such matters and procedure for taking over re-possession of the vehicle is clearly stipulated in Clause xii and xiii of the aforesaid Circular. This contemplates issuance of show cause notice and thereafter taking over possession after notice to the defaulter concerned. In the present case, the dispute between the parties is as to whether such a procedure was followed. According to the petitioner the procedure is shown to have been followed on paper by manipulating the signatures of the petitioner in blank documents or blank papers and by committing forgery. On the contrary, 8 respondent-Bank contends that this is not correct and petitioner himself consented for taking over of the vehicle.
8. Be it as it may be, there is serious disputed question of facts and the rival contentions made by the parties and the documents available, contradictory in nature cannot be adjudicated in a writ petition exercising limited jurisdiction under Article 226 of the Constitution. This requires detailed enquiry into factual aspects of the matter and on the basis of material available on record and the affidavits, this dispute cannot be resolved in this writ petition. Available on record are letters Annexure R-8/5 and R-8/7 given by the petitioner to the Manager of the Bank indicating his inability to repay the loan and giving his consent for taking away the vehicle from garage where it is lying for repair. If these letters are correct, then the contention of the petitioner that the vehicle is taken over by use of force is not correct. The fact as to whether consent was given by the petitioner in a proper manner or not cannot be enquired into in these proceedings. However, the petitioner says that some enquiry has been conducted by the Deputy Superintendent of Police and he has submitted the report vide Annexure P/8 on 31.12.2011 and therefore, based on this report, action be taken.
9. If the report of the Police authority Annexure P/8 is taken note of, it gives a very peculiar picture. Annexure P/8 is a report submitted by one Shri Rajmani Tripathi, Deputy Superintendent of Police, Rewa to the Inspector General of 9 Police, Rewa. In this letter in two paragraphs case of the petitioner and the contentions of the respondent Bank through its Manager respondent No.8 Mahesh Singh is recorded. Thereafter in a very casual and perverse manner without discussing the rival contentions and without giving any reason or justification for his finding, it is only held that the vehicle has been taken away from the garage on the basis of forged surrender letter. The report Annexure P/8 does not show application of mind, it does not discuss the material and evidence collected to record a finding as to how it is held that the vehicle has been taken over on the basis of forged or fabricated document or in an illegal manner. It is a report which has been prepared without giving any reason, without any justification for the conclusion arrived at and it does not show as to what is the evidence and material available on the basis of which finding of forgery in the document is indicated. This document Annexure P/8 does not give a correct picture, it cannot be termed as a proper enquiry report. Infact, Annexure P/8 is a report prepared in an illegal manner, is perverse in nature and it cannot be termed as an proper enquiry report, findings recorded and its justification with supporting , evidence, reason or material are not available in this report. That being so, I am not inclined to take cognizance of Annexure P/8 and issue any direction. On the contrary it is seen that when Annexure P/8 was placed by the State Government before the District Prosecution Officer for taking action, the District Prosecution Officer contended that 10 on the basis of said report no action can be taken and finding the disputed question involved to be purely a civil dispute, recommendation made is that no criminal action should be taken as no criminal case is made out. Under such circumstances, I am of the considered view that merely on the basis of report Annexure P/8 no direction can be given for registration of a criminal case particularly against respondent No.8. Annexure P/8 is a document which does not conspire confidence, it does not show that it has been prepared after a proper enquiry being conducted, there is no discussion of the evidence or material based on which conclusion is arrived at. It seems that annexure P/8 is the ipse dixit of the officer without any cogent reason or justification and therefore, is a perverse finding which cannot be accepted. This is a case where serious and disputed question of facts exist between the parties and therefore, it is thought appropriate to direct the parties to take recourse to the remedy available of approaching the Court of competent jurisdiction where a fact finding enquiry can be conducted and the dispute resolved. That apart, records indicate that under the Hire Purchase agreement there is an arbitration clause and respondent-Bank has already taken recourse to the remedy of arbitration.
10. Accordingly, taking note of the totality of facts and circumstances of the case, nature of dispute involved and serious disputed questions of facts which warrants enquiry, I am not inclined to interfere into the matter and issue any direction”
11. As far as registration of case on the basis of Annexure P/8 is concerned, if the petitioner feels that respondents have committed any criminal offence, he may either take recourse of filing a private complaint and by leading cogent evidence get the complaint registered before the Magistrate who can proceed in accordance with law. That apart, as far as notices issued by the Regional Transport Officers, they are only a show cause notices, no final decision is taken and if petitioner submits its objection and justification for the action, the Regional Transport Officer has to consider the same and thereafter take a decision on the show cause notice. At this stage when only a show cause notice is issued, interference into the matter is not called for.
12. Accordingly, taking note of the facts and circumstances, it is not a fit case where extra ordinary jurisdiction of this Court in a petition under Article 226 of the Constitution should be exercised. On the contrary taking note of the nature of dispute, the factual dispute involved in the matter and nature of enquiry which is required to be conducted, giving liberty to the parties to take recourse to the remedy available, where a fact finding enquiry could be conducted, this petition is dismissed, no order on cost. (RAJENDRA MENON) JUDGE Mrs.mishra