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1. .IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc.
not M-6447 of 2011 (O&M) Date of Decision : May 13th, 2013 M/s Citi Corp Finance India LTD.and others ...Petitioners Versus State of Haryana and others ...Respondents CORAM : HON'BLE Mr.JUSTICE VIJENDER SINGH MALIK 1 Whether Reporters of local papers may be allowed to see the judgment?.
2.Whether to be referred to the Reporters or not?.
3.Whether the judgment should be reported in the Digest?.
Present Mr.J.S.Bedi, Advocate, for the petitioneRs.Mr.Sagar Deswal, AAG, Haryana, for the State.
Mr.Anil Shukla, Advocate, for respondent No.2.
VIJENDER SINGH MALIK, J.
M/s Citi Corp Finance India LTD.and otheRs.the petitioners have brought this petition under the provisions of section 482 Cr.P.C.for quashing of Complaint not RBT-71-E dated 25.12.2003/30.08.2005 [Annexure P2].pending in the court of learned Judicial Magistrate Ist Class, Presiding Officer, Special Environment Court, Faridabad for an offence punishable under sections 406, 409, 420 read with section 120-B IPC as also the order dated 10.11.2010 [Annexure P1].passed by the said court vide which the petitioners have been summoned to stand trial Crl.
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2. .in the said case.
Brief facts of the case are that Shyam Bihari Garg, respondent no.2-complainant is a transporter and owner of truck not HR- 38-C-6811.
He purchased the said truck on 6.11.1998 and got it financed from accused No.1 on hire purchase basis.
Hire Purchase Agreement was executed between the complainant and the accused.
The price of the vehicle was Rs.8,25,000/- and the amount of finance was Rs.5,66,272/-.
The balance cost of the vehicle was borne by the complainant.
The loan amount was repayable in 35 installments of Rs.20,062/- each.
The complainant paid Rs.4,94,679/- upto 3.5.2001.
The last installment was payable on 6.10.2001.
On 3.5.2001, the accused, in connivance with each other, forcibly and illegally took the possession of the vehicle from the complainant and threatened to dispose of the vehicle unlawfully.
The complainant filed a civil suit against the accused in the court of Civil Judge (Senior Division).Faridabad.
The accused have sold the vehicle in question with mala fide intention to misappropriate the amount spent by the complainant on the vehicle.
The complainant had spent a substantial amount on the vehicle in question to the tune of about Rs.7.50 lacs and the accused had no right to dispose of the vehicle.
The complainant was ready to pay the balance loan amount and he had requested the return of the vehicle after receipt of the balance amount, but the accused have illegally sold the vehicle and has committed an offence of breach of trust.
Learned counsel for the petitioners has contended that it was a case of purchase of vehicle on hire purchase agreement.
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3. .him, in a hire purchase agreement, the ownership of the vehicle vests in the financier and the status of a purchaser is only of a trustee/bailee on behalf of the financier.
According to him, Annexure P3 is the hire purchase agreement between the parties.
He has further submitted that when the purchaser failed to pay the installments, the vehicle was repossessed.
According to him, notice Annexure P5 was given to Shyam Bihari Garg, the complainant telling him the factual position and calling upon him to clear the dues within a period of seven days from the date of notice in order to get the vehicle released.
He has further submitted that as Shyam Bihari Garg did not come forward to clear the dues and take the vehicle back, the vehicle was sold on 31.5.2001 by way of auction.
He has submitted that in case the financier seizes the vehicle, no criminal action can be taken against him as he is repossessing the goods owned by him.
In this regard, learned counsel for the petitioners sought support for his submission from a decision of Hon`ble Supreme Court of India in Anup Sarmah versus Bhola Nath Sharma and others 2013 (1) R.C.R.(Crl.) 62.
After considering the decided cases on the point, Hon`ble Supreme Court has held as follows :- “8.
In view of the above, the law can be summarised that in an agreement of hire purchase, the purchaser remains merely a trustee/bailee on behalf of the financier/financial institution and ownership remains with the latter.
Thus, in case the vehicle is seized by the financier, no criminal action can be taken against him as he is repossessing the goods owned by him.”
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4. .Learned State counsel has nothing to say in the matter because the matter has originated in a complaint.
Learned counsel for respondent no.2-complainant has submitted that more than 85% of the amount financed had been paid.
According to him, the amount financed was Rs.5,66,272/- out of which a sum of Rs.4,94,679/- had been repaid and a sum of Rs.60,000/- alone was left unpaid.
According to him, substantial interest had been created in favour of respondent no.2 in the vehicle.
Learned counsel for respondent No.2 has further submitted that till possession of the vehicle was taken, i.e.3.5.2001, the hire purchase agreement was not terminated.
According to him, in the absence of termination of the agreement, the vehicle could not be repossessed.
He has further submitted that notice [Annexure P5].to the complainant was given by the petitioners on 9.5.2001 and thereafter valuation report of the vehicle was obtained on 10.5.2001.
According to him, the vehicle was resold on 31.5.2001.
He has drawn the attention of the court to the provisions of sections 18 to 20 of the Hire Purchase Act, 1972 (for short, “the Act”.) and it is argued that these provisions have been violated.
Learned counsel for respondent no.2-complainant has further argued that though, valuation report was in a sum of Rs.3,25,000/- yet, the vehicle was sold for Rs.3.00 lacs.
According to him, this shows that the approach of the petitioners in the mater was not bona fide.
To support his submissions further, learned counsel for respondent no.2 drew attention of this court to page No.50 of the paper Crl.
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5. .book where petitioner No.1 has mentioned that the amount overdue as on date was Rs.60,186/- and the other charges payable by the complainant had been in a sum of Rs.3,600/-.
According to him, this shows that the amount due was very less and the petitioners had acted in haste in selling the vehicle.
Replying to the aforesaid submissions, learned counsel for the petitioners has submitted that even if there is no notice of termination of the agreement, there could be no liability of the petitioners on the criminal side.
According to him, the complainant has already agitated about violation of the provisions of the Act by way of a civil suit which he has lost and he has no case on criminal side.
Chapter V of the Act deals with rights and obligations of the owner.
Section 20 of the Act lays down restrictions on owner's right to recover possession of goods otherwise than through court.
Whether notice has been given by the petitioners terminating the hire purchase agreement or not, the matter here remains as one of repossession of the vehicle on the default of the hirer in payment of the dues.
The dues mentioned at page No.50 of the paper book have been misleadingly referred to.
It is claimed that only a sum of Rs.60,000/- was left to be paid by the hirer to the owner.
It was a case where the finance provided by the petitioners was in a sum of Rs.5,66,272/- and as submitted by learned counsel for the complainant, the amount paid has been Rs.4,94,679/-.
Even if a simple arithmetical calculation is done by deducting the amount of Rs.4,94,679/- from the amount of Rs.5,66,272/-, more than Rs.70,000/- is the amount found left.
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6. .So, even if the interest part is ignored, the amount, as per the showing of learned counsel for the complainant, was left in a sum of Rs.70,000/-.
What is mentioned at page No.50 of the paper book is that the amount of Rs.60,000/- was overdue which means that this was the amount of the installments which were not paid and had become overdue.
The complainant was given notice to come within a period of seven days and to take the vehicle back on payment of dues of the petitioneRs.It is not an argument on behalf of the complainant that he went to the petitioners with the amount due to take back the vehicle and that the petitioners had committed any default in the matter.
Valuation is approximate value of a vehicle or other article made by a valuer.
It is not necessary that when that article is put to auction, the said value would be received.
So, for the reason that the vehicle was sold for an amount marginally less than the amount for which the vehicle was valued by the valuer, it cannot be said that the action on the part of the petitioners was mala fide.
At the worst, it can be said to be a case where the petitioners did not terminate the hire purchase agreement and repossessed the vehicle.
As is the ratio of Anup Sarmah's case (supra).no criminal action can be taken against the owner/financier.
What the petitioners repossessed is the vehicle owned by them.
In doing so, they cannot be said to have committed any offence.
In view of the ratio of Anup Sarmah's case (supra).I allow this petition and quash Complaint not RBT-71-E dated 25.12.2003/30.08.2005 [Annexure P2].pending in the court of learned Crl.
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7. .Judicial Magistrate Ist Class, Presiding Officer, Special Environment Court, Faridabad for an offence punishable under sections 406, 409, 420 read with section 120-B IPC as also the summoning order dated 10.11.2010 [Annexure P1].alongwith all subsequent proceedings arising therefrom.
(VIJENDER SINGH MALIK) JUDGE May 13th, 2013 som Crl.
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8. ..