Judgment:
R.C. Jain, J.
1. Through this petition under Article 226 of the Constitution of India read with Section 482 Cr.P.C. the petitioner, who is an advocate by profession, seeks a direction/writ in the nature of mandamus directing respondents Rs. 1 and 2 to register a case against respondents Rs. 3 and 4 and their accomplices who have been party to the illegal acts of stealing his car on 23.10.2004 from road- side parking of Kailash Colony, New Delhi and other offences like criminal breach of trust, extortion etc. and to take up the investigation in the matter. Yet another direction sought for on respondents Rs. 1 and 2 is to recover the car and the valuable goods which were lying in the car and; lastly, for award of suitable compensation to the petitioner for the inconvenience, harassment and humiliation suffered by him at the hands of respondents Rs. 3 and 4.
2. The petition has been filed with the averments and allegations that in the month of December, 2000 the petitioner purchased a Maruti Car (Wagon R) bearing registration Rs. DL-7C-A-7144 (Cool Silver Colour) bearing Engine Rs. BR4CS 100 4019566, Chasis Rs. BR4CS 100118844, from Rohan Motors, Noida, U.P. for a sum of Rs. 3,50,000/-. It is alleged that at the showroom of the respondent the petitioner was induced to take a loan from respondent Rs. 3-ICICI Bank, hence, the petitioner took a loan of Rs. 2,80,000/- which was to be returned in 60 equated monthly installments (EMI of Rs. 6700/- p.m. starting from February, 2001 to January 2006) as per amortization schedule given to the petitioner. The petitioner gave post-dated cheques of Bank of Baroda to respondent Rs. 3 and respondent Rs. 3, through its agent Rohan Motors, Noida, got signed from the petitioner certain documents in blank such as agreement, promissory note, receipt etc., and also a hypothication endorsement was made on the registration certificate of the vehicle. It is alleged that in the month of June, 2001 the petitioner shifted his residence from Flat Rs. 20-B, Pocket-C, DDA SFS Flats, Mayur Vihar, Phase-III, New Delhi to Gurgaon and, hence, he had to close his account with the Bank of Baroda, Mayur Vihar. After shifting to Gurgaon, on an oral request made by the petitioner on phone, the agent/collection boys of respondent Rs. 3 used to come to the office of the petitioner at A-31/37, First Floor, Kailash Colony, New Delhi and collect the EMI amounts which were given to them against receipts of respondent Rs. 3. It is alleged that from April, 2003 the agents/collection boys of respondent Rs. 3 stopped coming to the office of the petitioner to collect the EMI and consequently, the petitioner issued a cheque dated 15.8.2003 for a sum of Rs. 13,800/- along with a letter of even date and communicating his new address and also expressing his desire to make pre-payment of all the outstanding amount and so requested the respondent to send him the foreclosure statement so that he could discharge the hypothication. Petitioner is stated to have made more than 30 payments to respondent Rs. 3 by July, 2004 when the Area Manager (Delhi), Auto Collection Department of respondent Rs. 3 visited the office of the petitioner in Kailash Colony and falsely claimed that as per the record of respondent Rs. 3 there was a default of 3 EMIs in the account of the petitioner and demanded the amount for the same. The petitioner showed him the receipts and pointed out the discrepancies in their account. The Area Manager assured the petitioner to look into the matter. The petitioner made certain payment in cash in the month of July, 2004 and after-wards asked the respondent to send his officials to collect the money in cash and reconcile the statement but none came from the office of respondent Rs. 3. Some more payments were stated to have been made by the petitioner.
3. It is further alleged that on 23.10.2004 the petitioner returned from Chandigarh in the above numbered vehicle after attending some social function and he had parked his said car on the road-side of the market of Kailash Colony at about 6.00 p.m. The car at that time had certain valuables like jewellery of his wife, camera, cash etc. When at about 8.00 p.m. he went to the parking place of the car he found that the car in question was missing and so looking for his car in the area the petitioner informed the Police Control Room at about 8.25 p.m. On 25.10.2004 the petitioner visited the police station and met SHO- respondent Rs. 2 and enquired about the progress regarding his complaint of theft of his car lodged by him and the petitioner was directed to meet Mr.Sanjeev Dhodi, the I.O., who noted down the mobile number and car number of the petitioner in his diary. On 28.10.2004 the petitioner again contacted the said I.O. and when the petitioner gave him his written complaint of theft of the said car and list of articles which were there in the car at the time of theft on 23.10.2004, the I.O. returned his complaint saying that the complaint should also bear the engine and chasis number of the stolen car otherwise the complaint was useless. The petitioner thereafter provided the engine number and chasis number of the car. The petitioner also informed respondent Rs. 3 through respondent Rs. 4 about the theft of his car and he also visited the office of respondent Rs. 3 at Jhandewalan and on 3.11.2004 when he was informed that the car had been removed by them on 23.10.2004 owning to the default in the payment of installments. Respondent Rs. 4 also admitted that the car was in their possession and could be released only on the petitioner paying the balance entire amount of Rs. 1,69,882/- as shown in the statement which included re- possession charges of Rs. 9,650/-, Rs. 500/- as valuation charges, Rs. 2,600/- as foreclosure charges, Rs. 3,978/- as bouncing charges, Rs. 25,598/- as over due charges, Rs. 9,874/- as interest under threat and coercion and the compelling circumstances and with a view to stop the disposal of the car by respondent Rs. 3 the petitioner agreed to pay the entire amount and paid on 15.11.2004 a sum of Rs. 40,000/- by a cheque. It is alleged that the car was still not handed over to the petitioner and the respondent insisted on the petitioner to give in writing that he has received the car in the same condition in which it was handed over by him to the respondent. The above facts were brought to the notice of respondents Rs. 1 and 2 but there was no action by respondent Rs. 1 and 2 in registering an FIR and taking up the investigation and it is alleged that these authorities have failed to discharge their statutory obligations. Hence, the petition.
4. Notice of the petition was issued to the respondents. A status report was filed on behalf of the State which brought out that on receipt of an information from the PCR regarding theft of the above numbered car the same was marked to H.C.Jaipal, who reached the spot where the complainant was not found and on return to the police station he learnt from the duty officer that the car had been taken away by the officials of ICICI Bank as there was default in making the payments and in this regard an intimation letter has been received from the bank officials. On further inquiries being made from the office of the bank, it was revealed that the petitioner defaulted in making the payment of a sum of Rs. 56,745/- and, thereforee, the vehicle was re-possessed by them. It was also stated that immediately after the vehicle was brought to the parking place of the company the petitioner also reached there and they called Mr.B.S. Randhawa, advocate and notary, who prepared the inventory of the goods/items lying in the said car and, thereforee, the said report was filed. It is stated that the petitioner took back the car from ICICI Bank on 22.11.2004 and on 24.11.2004 he gave another complaint alleging therein that some goods/items were missing from the said car. On the basis of the said complaint, further inquiries were made and it was revealed that as per the inventory made by the notary at the time of repossession of the vehicle by the officials of the ICICI Bank the vehicle was having one Stereo make Sony and two speakers and no other article as mentioned by him in the complaint.
5. In the counter affidavit, respondents Rs. 3 and 4 have denied the allegations in regard to the theft of the car but admitted the re-possession of the car on 23.10.2004 on account of the default of the petitioner and after giving due notice to the petitioner and adhering to the guidelines in that behalf. In the rejoinder, the petitioner has controverter the pleas raised by the respondent and has disputed the statement of accounts filed by the respondents and has reiterated the averments made in the petition.
6. I have heard Mr.H.S.Phoolka, learned senior counsel appearing for the petitioner, learned standing counsel for respondents Rs. 1 and 2 and Mr.Puneet Bhalla, counsel representing respondents Rs. 3 and 4 and have bestowed my thoughtful consideration to their respective submissions. The main plank of submission of Mr.Phoolka, learned senior counsel for the petitioner is that respondent Rs. 3 had acted mala fide in this case by re-possessing the car in as much as the petitioner was making regular payment of the EMIs and the default, if any, had occurred on account of the dishonour of certain cheques of the Bank of Baroda, Mayur Vihar, was on account of the petitioner having shifted his residence and in any case will be deemed to have been condoned because afterwards the collecting agents/officials of respondent Rs. 3 used to visit the office of the petitioner in person and collect the EMIs and that the notice issued by the respondent in the year 2003 could not have been pressed in service for re-possession of the vehicle in the month of October, 2004 It is also pointed out that the payments of the EMIs were being made uptil October, 2004 and, thereforee, there was no justification for respondent Rs. 3 to recall the loan.
7. In support of his above contention, Mr.Phoolka, learned senior counsel for the petitioner has placed reliance upon two Division Bench decisions of this Court; one in the case of Bhagya Products (P) Ltd. v. Commissioner of Police and Ors. 2003 (69) DRJ 1, and the other in the case of Dr. Amitabh Varma v. Commissioner of Police and Ors. : 100(2002)DLT581 . In the former case, this Court had the occasion to morefully examine the aspects in regard to the re-possession of motor vehicles by the finance companies in exercise of their power to recall the loan and laid down certain guidelines in that behalf. In the other case, the Court on the facts and circumstances of that case had awarded certain amount as symbolic compensation for the undue harassment and humiliation suffered by the petitioner on account of re-possession of his vehicle under certain extreme circumstances. I am afraid the petitioner cannot draw any assistance from the said case because the facts and circumstances of the said case were altogether different in as much as the petitioner was dispossessed of the vehicle when it was running and it was established that the car had the cash amount of Rs. 50,000/-. So far as the adherence of guidelines is concerned, it would prima facie appear that respondent Rs. 3 had followed and exhausted the procedure laid down in that behalf. It is not disputed that as on the date of re-possession of the vehicle by respondent Rs. 3, a certain amount of loan was still due and repayable by the petitioner. Taking into account all the relevant facts and circumstances and the material brought on record, it is not possible to hold that an offence of theft of the car in question was made out.
This Court is of the opinion that no further action/directions are called for in the matter more particularly so because the petitioner already got the possession of the vehicle from respondent Rs. 3 after making certain payments. However, if the petitioner feels that all his grievances have not been fully redressed, it will be open for him to work out his remedy by means of other appropriate proceedings in accordance with law.
8. With these observations, the writ petition is dismissed.