Uma Shankar Gopalka and anr. Vs. State of Jharkhand and anr. - Court Judgment

Excerpt:
- constitution of india article 215: [m. karpaga vinayagam, cjm, .y.eqbal & amareshwar sahay, r.k. merathia, narendra nath tiwari, jj] contempt proceedings review powers of high court held, article 215 of the constitution vests the high court with all the powers of court of record including the power to punish for its contempt. this special jurisdiction is inherent in a court of record from the very nature of the court itself. the said special power is not subject to the procedural law either of the criminal procedure code or the contempt of courts act. the high court can deal with the matter summarily and can adopt its own procedure. however, if the high court initiates the proceeding as a court of record, principle of natural justice must be applied and the contemner should be given sufficient opportunity to know the accusation and to defend himself. in the instant case, the contemner was served with the notice to show cause. he was well aware of the accusation. he also admitted his guilt. in view thereof, contention of the contemner lawyer that he was not heard on merit of the contempt application and the impugned judgment of punishing petitioner in contempt of court is violative of principles of natural justice, is not tenable. article 215: contempt proceedings review of conviction held, it is the solemn duty of the bench and bar to maintain and uphold the majesty, authority and dignity of the courts for the sustenance and progress of democracy in our country particularly at the juncture when there are number of instances of outside attempt to disintegrate and destroy the democratic set up of our country. such conduct of a member of the bar brings the authority of the court and the administration of justice into disrespect, erodes and undermine the foundation of the judiciary by shaking faith and confidence of the people in the ability of the courts to deliver free and fair justice, it is a deliberate attempt to insult the high court and denigrate the authority and solemnity and court strongly deprecate such attempt made with biased attitude. such indiscriminate allegations against judges, who are the members of the bench, cannot be a ground for review of the impugned judgment. punishment of prohibiting appearance of contemner/lawyer before high court as well as courts under its jurisdiction is based on his repeated convictions for contempt in the past is not violative of article 19(g) of the constitution. no interference in exercise of review jurisdiction is warranted. - reliance in this connection has been made upon 1996 (7) scc 212, wherein it has been held that on failure to make payment of instalment, the financier has right to resume possession even if the agreement does not contain any clause of resumption of possession and here in the instant case there was an agreement under clause 3 of the agreement dated 28th february 1998. reliance was further placed upon 2001 (7) scc 417 :(air 2001 sc 3721 :2001 cri lj 4255) wherein it has been held that in hire-purchase contract, recovery of possession of goods by owner, financier, as per terms of the hire-purchase agreement, no criminal case is made out. in my opinion, when vehicle is seized in terms of the hire-purchase agreement due to failure on payment of instalment, no offence is made out under any of the sections and all allegations are false and concocted.orderhari shankar prasad, j. 1. this application under section 482 of the code of criminal procedure has been filed for quashing the entire criminal proceedings initiated against the petitioners in complaint case no. 1204/2002 including order taking cognizance dated 27-1-2003, whereby and whereunder cognizance for an offence under sections 323, 341, 379, 406 and 120b, ipc has been taken against the petitioners.2. facts giving rise to the filing of this application are that the opposite party no.2 (hereinafter referred to as the 'complainant') has filed a complaint case stating therein that vehicle was purchased by the financier namely, m/s. gopalka auto finance ltd. on 23-2-1998 on the basis of hypothecation agreement and as per agreement the said vehicle was financed by the financier of rs. 7,55,150/- with insurance for the period of three years (23-2-1998 to 23-2-2001) and 35 instalments were fixed as per the agreement entered into by both the parties. due to money problem the complainant could not pay the instalment amount till 25th sept. 1998 then financier issued a legal notice to the complainant for recovery of the due instalment of rs. 75,407/- and thereafter vehicle sold to complainant was seized by the financier against the due amount. it is further alleged that after seizure of the vehicle the complainant paid rs. 3,38,150/- against the due amount of rs. 7,55,150/- and for recovery of total due amount of rs. 4,17,000/- fresh instalment was fixed by the financier. it is alleged that as per the fresh agreement complainant paid total rs. 3,12,600/- upto 5-1-2002 and only rs. 62,400/- was the amount, which remained due. for remaining dues of rs. 62,400/- the vehicle was again seized on 28-6-2002. when complainant came to know about the seizure of the vehicle then he approached the staff of accused no. 1 and he saw that accused nos. 1 and 2 more persons started abusing the complainant and threatened with dire consequences and asked him to bring rs. 1,51,000/- for release of the vehicle and petitioners obtained signatures forcefully on blank paper. the complainant obtained loan from allahabad bank and paid the amount and vehicle was released to him and thereafter he was called at the office of the petitioners, where he was brutally assaulted.3. learned counsel for the petitioner submitted that no case as alleged is made out against the petitioners. in fact a sum of rs. 1,93,648/- was due against the complainant but matter was settled at rs. 1,51,000/-. it was further pointed out that the complainant made default in payment of instalment and as per terms and conditions of the hire-purchase agreement, the financier had taken the possession of the vehicle and had also intimated the same to the concerned police station, within whose jurisdiction the vehicle was seized (an-nexure-2). it was also pointed out that no offence of criminal breech of trust is made out against the petitioners because are the proprietor and director of the financier company and they are deemed to be the owners of the vehicle, in respect of which an agreement has been executed and as such no case is made out under the aforesaid sections. it was also pointed out that under clause 3 of the hire-purchase agreement dated 23rd feb. 1998, there was an agreement between that unless and until the payments are completely made to the owner that is the financier company in accordance with the terms and conditions of the agreement, the vehicle shall remain the property of the owner and in that view of the matter no case under sections 379 or 406, ipc is made out. it was also pointed out that from the complaint petition also it will appear that complainant had made default on several times in payment of instalments, as a result of which was seized and this is not improper and when seizure has been made, therefore, complainant has come out with a false allegation only in order to harass the petitioner. reliance in this connection has been made upon 1996 (7) scc 212, wherein it has been held that on failure to make payment of instalment, the financier has right to resume possession even if the agreement does not contain any clause of resumption of possession and here in the instant case there was an agreement under clause 3 of the agreement dated 28th february 1998. reliance was further placed upon 2001 (7) scc 417 : (air 2001 sc 3721 : 2001 cri lj 4255) wherein it has been held that in hire-purchase contract, recovery of possession of goods by owner, financier, as per terms of the hire-purchase agreement, no criminal case is made out.4. on perusal of materials on record, it is clear that vehicle in question was delivered to the complainant on the basis of hire-purchase agreement between the parties and due to default in payment of instalment, the vehicle was seized in terms of hire purchase agreement. in my opinion, when vehicle is seized in terms of the hire-purchase agreement due to failure on payment of instalment, no offence is made out under any of the sections and all allegations are false and concocted.3. in that view of the matter, this application is allowed and the entire criminal proceeding including order taking cognizance dated 27-1-2003 is quashed.

Judgment:
ORDER

Hari Shankar Prasad, J.

1. This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the entire criminal proceedings initiated against the petitioners in Complaint Case No. 1204/2002 including order taking cognizance dated 27-1-2003, whereby and whereunder cognizance for an offence under Sections 323, 341, 379, 406 and 120B, IPC has been taken against the petitioners.

2. Facts giving rise to the filing of this application are that the opposite party No.2 (hereinafter referred to as the 'complainant') has filed a complaint case stating therein that vehicle was purchased by the financier namely, M/s. Gopalka Auto Finance Ltd. on 23-2-1998 on the basis of hypothecation agreement and as per agreement the said vehicle was financed by the financier of Rs. 7,55,150/- with insurance for the period of three years (23-2-1998 to 23-2-2001) and 35 instalments were fixed as per the agreement entered into by both the parties. Due to money problem the complainant could not pay the instalment amount till 25th Sept. 1998 then financier issued a legal notice to the complainant for recovery of the due instalment of Rs. 75,407/- and thereafter vehicle sold to complainant was seized by the financier against the due amount. It is further alleged that after seizure of the vehicle the complainant paid Rs. 3,38,150/- against the due amount of Rs. 7,55,150/- and for recovery of total due amount of Rs. 4,17,000/- fresh instalment was fixed by the financier. It is alleged that as per the fresh agreement complainant paid total Rs. 3,12,600/- upto 5-1-2002 and only Rs. 62,400/- was the amount, which remained due. For remaining dues of Rs. 62,400/- the vehicle was again seized on 28-6-2002. When complainant came to know about the seizure of the vehicle then he approached the staff of accused No. 1 and he saw that accused Nos. 1 and 2 more persons started abusing the complainant and threatened with dire consequences and asked him to bring Rs. 1,51,000/- for release of the vehicle and petitioners obtained signatures forcefully on blank paper. The complainant obtained loan from Allahabad Bank and paid the amount and vehicle was released to him and thereafter he was called at the office of the petitioners, where he was brutally assaulted.

3. Learned counsel for the petitioner submitted that no case as alleged is made out against the petitioners. In fact a sum of Rs. 1,93,648/- was due against the complainant but matter was settled at Rs. 1,51,000/-. It was further pointed out that the complainant made default in payment of instalment and as per terms and conditions of the hire-purchase agreement, the financier had taken the possession of the vehicle and had also intimated the same to the concerned police station, within whose jurisdiction the vehicle was seized (An-nexure-2). It was also pointed out that no offence of criminal breech of trust is made out against the petitioners because are the proprietor and director of the financier company and they are deemed to be the owners of the vehicle, in respect of which an agreement has been executed and as such no case is made out under the aforesaid sections. It was also pointed out that under clause 3 of the hire-purchase agreement dated 23rd Feb. 1998, there was an agreement between that unless and until the payments are completely made to the owner that is the financier company in accordance with the terms and conditions of the agreement, the vehicle shall remain the property of the owner and in that view of the matter no case under Sections 379 or 406, IPC is made out. It was also pointed out that from the complaint petition also it will appear that complainant had made default on several times in payment of instalments, as a result of which was seized and this is not improper and when seizure has been made, therefore, complainant has come out with a false allegation only in order to harass the petitioner. Reliance in this connection has been made upon 1996 (7) SCC 212, wherein it has been held that on failure to make payment of instalment, the financier has right to resume possession even if the agreement does not contain any clause of resumption of possession and here in the instant case there was an agreement under clause 3 of the agreement dated 28th February 1998. Reliance was further placed upon 2001 (7) SCC 417 : (AIR 2001 SC 3721 : 2001 Cri LJ 4255) wherein it has been held that in hire-purchase contract, recovery of possession of goods by owner, financier, as per terms of the hire-purchase agreement, no criminal case is made out.

4. On perusal of materials on record, it is clear that vehicle in question was delivered to the complainant on the basis of hire-purchase agreement between the parties and due to default in payment of instalment, the vehicle was seized in terms of hire purchase agreement. In my opinion, when vehicle is seized in terms of the hire-purchase agreement due to failure on payment of instalment, no offence is made out under any of the sections and all allegations are false and concocted.

3. In that view of the matter, this application is allowed and the entire criminal proceeding including order taking cognizance dated 27-1-2003 is quashed.