Judgment:
ORDER
D.K. Sinha, J.
1. The petitioners herein have invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India with the prayer for the quashment of Koderma P.S. Case No. 113 of 1999 corresponding to G.R. No. 261 of 1999 in which they have been arrayed as accused for the offence under Sections 419/420/379/341/323 of the Indian Penal Code pending in the Court of Additional Chief Judicial Magistrate, Koderma.
2. The prosecution story in short was that the informant- respondent No. 4 Mukesh Kumar was having a truck No. BR1G-3777 with national permit. The informant-respondent No. 4 had sent his vehicle for carrying coal but neither driver Jawahar Roy nor cleaner Amod Kumar of the said truck returned with the vehicle and the informant-respondent No. 4 did not enquire presuming that the driver of the said truck would be carrying goods in trips. Yet, when the truck did not return for long 20/25 days, the informant-respondent No. 4 began to search his truck with its driver and cleaner and in course of that, he came across one Harendra Singh, driver of another Truck No. BPM 5152 on 17.4.1999, from whom he gathered that when the Truck No. BRIG- 3777 of the informant-respondent No. 4 arrived Koderma with the coal loaded thereon, it was intercepted by the occupants of the Commander Jeep who asked the driver to take the truck away to Kolkata. It was further alleged that when the driver refused to do so he was threatened to be killed otherwise and terrorized by the petitioners and others of IDEAL Financing Corporation Ltd. Pursuant to such information, when the informant-respondent No. 4 came to Koderma, he did not find either his truck in question or its driver or cleaner. The informant-respondent No. 4 explained that there was no amount due on the truck against him of IDEAL Financing Corporation and that the petitioners and others had neither right nor any order of competent Court to forcibly take away his vehicle. It was further clarified that no case was instituted in respect of that vehicle and the respondent, therefore, had reason to believe that the petitioners with others, pursuant to a criminal conspiracy and with intention to usurp the truck by creating forged documents, took away the truck with its driver and cleaner. He suspected that driver and cleaner of the truck in question might have been killed or kidnapped as they were carrying about Rs. 10,000/- with them.
3. Mr. P.P.N. Roy, the learned Sr. Counsel submitted that informant-respondent No. 4 had obtained the truck in question on the instance of the Financier under the hire-purchase agreement which was entered into between the parties on 4.9.1996 as also with another agreement of arbitration (Annexure-3). As per the agree- ' ment (Annexure-2) the hirer was to pay a total amount of Rs. 6,21,901.00 besides the initial down payment of Rs. 2,18,500.00 in 23 equal instalments and that agreement with the hirer expired on 15.8.1998 and till then he had paid only 4,30,901.00 with the balance to the tune of Rs. 1,91,000.00 with the interest on the delayed payment. The informant-respondent No. 4 had made last payment on 5.8.1998.
4. Mr. Roy further submitted that after default in payment the informant-respondent No. 4 was asked by three registered letters with A/D calling upon either to make payment of balance amount or to surrender the truck in question which he has purchased on the instance of the financier M/s IDEAL Financing Corporation Pvt. Ltd. Kolkata. The above letters were followed by a legal notice but of no avail and ultimately the Truck No. BR1G-3777 was seized by the authorized representative Mr. B.P. Singh on 17.3.1999 and the same was kept it in the custody of Koderma Police Station. From there the truck in question was taken to Dumka with due permission and kept in the garage of the Financier Company at Dumka. The informant-respondent No. 4, in the meantime, having came to know about the development made got a concocted and false case instituted on 19.4.1999 against the petitioners and others as stated above.
5. Mr. Roy apprised the Court that in Misc. Case No. 3222 of 1999 the learned IXth Judge of Calcutta City Civil Court by its order dated 26.4.1999 appointed a receiver of the truck in question.
6. Advancing his arguments Mr. Roy further submitted that the criminal proceeding against the petitioners under the facts and circumstances was an abuse of process of Court on the fact that the petitioners have acted in consonance with the agreement of hire-purchase dated 4.9.1996 for realization of genuine demand of outstanding dues from the informant-respondent No. 4. The counsel emphatically submitted that the dispute between the parties was of civil nature in view of the agreement (Annexure-2) and the Arbitration Clause (Annexure-3). He further submitted that seizure of the truck by financier on the basis of failure to make payment of the instalments by the hirer to the financier under hire-purchase agreement does not entail criminal liability upon the petitioners for the offence of theft or otherwise.
7. Mr. P.P.N. Roy relied and referred to a decision reported in AIR 2001 (3) East Cr C 186 (SC) : 2001 SC 3721. The Apex Court in Charanjit Singh Chadha and Ors. v. Sudhir Mehra, held:
Where the hire-purchase agreement between parties specifically gave authority to the Non-Banking Finance Company to repossess the vehicle and their agents were given the right to enter any property or building wherein the motor vehicle was likely to be kept and under the hire-purchase agreement, said Company continued to be, the owners of the vehicle, no offence of cheating, criminal breach of trust or theft of vehicle could be said to have been committed by the Company, who was the owner of vehicle, when on failure of hirer to pay the instalments due, the Company took possession of the vehicle from the motor mechanic who was in possession of vehicle for certain repairs to be carried out. The hire-purchase agreement in law is an executory contract of sale and confers no right in rem on hirer until the conditions for transfer of the property to him have been fulfilled. Therefore, the repossession of goods as per the term of the agreement may not amount to any criminal offence.
8. Finally Mr. Roy submitted that the criminal prosecution of the petitioners under the facts and circumstances of the case should not be proceeded and therefore, it may be quashed.
9. A counter affidavit has been filed on behalf of the respondents-State through SDPO, Koderma with certain admission that the statement of the driver Jawahar Roy of Truck No. BRIG- 3777 could not be recorded in spite of best efforts. It was further admitted that the informant-respondent No. 4 Mukesh Kumar, in course of investigation of the case, did not show any chit of paper in support of the fact that he had deposited the entire amount of loan to the Financier but the owner book of the truck produced before the I.O. reflected that the truck in question was purchased on hire-purchase agreement with M/s IDEAL Financing Corporation Ltd. Kolkata and it further appeared that an amount of Rs. 3,91,000/- of the IDEAL Financing Corporation Kolkata was due with the owner of the Truck No. BR1G-3777. The respondent No. 2 further admitted on affidavit that the said truck was seized by Sri. B.P. Singh, agent of the IDEAL Financing Corporation, Kolkata, at Koderma under the order of the Financing Corporation and kept it at Koderma Police Station on 17.3.1999 as at that time no driver was available to the Agent and in this connection entry was made in the station diary of Koderma police station to that effect vide Entry No. 443 dated 17.3.1999. with the further admission that one Sadanand Mandal, Advocate, was appointed as receiver of Truck No. BRIG-3777 by the order of City Civil Court. Kolkata in Misc. Case No. 3222 of 1999 on 26.4.1999. Yet, the said truck was released to the informant-respondent No. 4 Mukesh Kumar by the order of ACJM, Koderma on 10.6.1999 and that the allegation of kidnapping of driver and cleaner of the said truck was found false. It was further stated in the counter affidavit that after examination of the materials collected in course of the investigation, no case of criminal liability was found rather, the dispute between the parties was of civil in nature and accordingly final form was submitted in the Court of ACJM, Koderma in Koderma P.S. Case No. 113 of 1999.
10. Having regard to the facts and circumstances of the case, arguments advanced on behalf of the petitioners, counter affidavit filed on behalf of the respondent-State and the proposition of law there appears substance that in view of annexures 2 and 3, which are the hire-purchase agreement between the Financier and the hirer informant-respondent No. 4 as also separate agreement containing Arbitration Clause (Annexure-3), I find that the petitioners fn the circumstances cannot be fastened with the criminal liability on the face value of civil dispute. The police after investigation has submitted final form exonerating the criminal liability of the petitioners as stated by the SDPO in the counter affidavit. The Hon'ble Apex Court in Charanjit Singh Chadha's case (supra) laid down the principle by exonerating the criminal liability of the financier and its agent, in the facts and circumstances of the case. In the result, there appears merit in the Cr. Writ Petition and accordingly criminal prosecution against the petitioners in Koderma Rs. Case No. 113 of 1999 corresponding to G.R. No. 261 of 1999 pending in the Court of Addl. Chief Judicial Magistrate. Koderma is quashed. This Cr Writ Petition is allowed.