Melroy Sharpe And Another vs The State Of West Bengal And Another

This present application under Section 482 of the Code of Criminal

Procedure, 1973, has been filed for quashing of C.G.R. Case No.4499 of

2008, pending before the Court of Judicial Magistrate, Alipore, 24 Parganas

(South), arising out of Bhowanipore P.S. Case No.315 dated December 21,

2008, under Sections 384/379/506/34 of the Indian Penal Code, 1860.

2. Petitioner no.1, at the relevant juncture, was the Zonal Manager and

petitioner no.2 was the Legal Head of the HDFC Bank Limited ("the Bank",

in short).

3. It appears that opposite party no.2 entered into an "Agreement for

Auto Loan" with the Bank. The total loan amount was Rs.3,73,000/-,

which was to be repaid in 60 monthly installments of Rs.7,868/-

commencing from January 7, 2007.

4. Admittedly, there were instances of default in the payment of

monthly installments prompting the bank to issue a Loan Recall Notice to

opposite party no.2 on November 6, 2008. It appears that on November 29,

2008, the possession of the relevant vehicle was taken by the men/agents

of the bank.

5. Against such possession of the vehicle, opposite party no.2 lodged a

complaint before the learned Chief Judicial Magistrate, Alipore, under

Sections 384/379/506/34 of the Indian Penal Code, 1860. Following the 3

order of the learned Magistrate, the aforesaid F.I.R. was lodged before the

Bhowanipore Police Station against four persons including petitioner nos.1

and 2 under Sections 384/379/506/34 of the Indian Penal Code, 1860.

6. An attempt was made by this Court to resolve the dispute between

the parties amicably out of Court, leading to several adjournments of the

case for this purpose. Regrettably, the parties informed this Court that the

settlement talks had failed.

7. The learned advocate appearing for the petitioners, Mr. Dipanjan

Dutta, has argued that there is no allegation against the petitioners in the

F.I.R. that constitutes offences under Sections 384/379 of the Indian Penal

Code. Furthermore, Mr. Dutta has contended that in respect of Section 506

of the Indian Penal Code, the only allegation relates to an alleged threat to

sell the vehicle which cannot be deemed as a threat as it was the agreed-

upon consequence of the Loan Recall Notice. On the contrary, it is apparent

that through the complaint, opposite party no.2 sought to restrain the

bank from exercising its right under the agreement.

8. Mr. Dutta has argued that the complaint does not disclose any

allegation of hurt. The same is supported by the fact that Section 323 of the

Indian Penal Code does not feature in the complaint. He has submitted that

Section 506 of the Indian Penal Code is a non-cognizable offence. As there

exists no cognizable offence, Section 506 of the Indian Penal Code cannot

survive in isolation.

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9. Finally, it has been argued by Mr. Dutta that it is manifestly

impossible that the Zonal Manager or the Legal Head of the bank, the

petitioners herein, would be involved in the affairs of a single loan account.

10. In support of his submission Mr. Dutta has placed reliance upon the

judgments reported at (2001) 7 SCC 417 (Charanjit Singh Chadha v.

Sudhir Mehra), (1979) 4 SCC 396 (Sardar Trilok Singh v. Satya Deo

Tripathi), (1996) 7 SCC 212 (K.A. Mathai alias Babu v. Kora

Bibbikutty) and (2013) 1 SCC 400 (Anup Sarmah v. Bhola Nath

Sharma).

11. Ms. Rituparna De Ghose, learned advocate appearing for opposite

party no.2, on the contrary, has submitted that the prevalent law

condemned illegal seizure of vehicle. If the bank takes recourse to illegal

means that amounts to an offence under the Indian Penal Code, the Court

must ensure that the proper investigation is done to bring out the truth

and bring the offenders to book. It has been submitted that if an illegal

seizure of a vehicle cannot make out the offence of threat and extortion, the

threat given in the process of such seizure causing injury to a person or his

reputation would amount to an offence.

12. She further contended that if in the process of illegal seizure, a man's

reputation is injured, he can always pray for a remedy. The specific charges

should be looked into as separate and independent of each other in

accordance with the essential ingredients of the offences as disclosed. Since

a specific case has been made in the complaint against the petitioner, an 5

investigation for all the charges alleged by the complaint must be

conducted.

13. In support of such assertion, she has relied upon the judgment

reported at (2007) 2 SCC 711 (ICICI Bank Ltd. v. Prakash Kaur). She

has also relied upon the guidelines namely, "A Fair Practices Code for

Lenders" dated May 5, 2003, issued by the Reservice Bank of India to argue

that the said guidelines mandate that before taking the decision to recall a

loan, a lender should give due notice to the borrowers and a lender should

not resort to undue harassment and use muscle power for recovery of

loans.

14. The learned advocate appearing for opposite party no.2 has further

relied upon a judgment reported at (2008) 7 SCC 532 (ICICI Bank v.

Shanti Devi Sharma) to argue that a hire-purchase agreement does not

entitle the financer to take back the possession of the vehicle by use of

force.

15. By placing reliance upon the judgment reported at (2020) 10 SCC

399 (Magma Fincorp Limited v. Rajesh Kumar Tiwari), the learned

advocate appearing for opposite party no.2 has submitted that possession

of the vehicle cannot be taken by physical violence, assault and/or criminal

intimidation. Nor can such possession be taken by engaging gangsters,

goons, and musclemen as so-called recovery agents.

16. It has been argued that the petitioners being the Zonal Head and

Legal Head of the bank, influenced and directed their musclemen to seize 6

the vehicle of opposite party no.2 by force. The petitioners shared a

common intention of illegally taking possession of the vehicle and thus

both of them are liable to be prosecuted for such illegal act as if it were

done by them in person.

17. It has further been contended that under the instructions and the

specific directions of the petitioners, their officials threatened to sell the car

and thereby threatened to cause injury to the property of the opposite party

and further manhandled him causing injury to his person and thus, both

of them committed offence of criminal intimidation as envisaged under

Sections 503 and punishable under Section 506 of the Indian Penal Code,

1860.

18. It has been further asserted that even if the petitioners were not

present at the place of occurrence of the offences, the said offences were

committed under the instructions/directions and instigation of the

petitioners. Therefore, the petitioners cannot be absolved of their liability

for the commission of the offences.

19. Before delving into the merits of the case, it is necessary to

acknowledge that this application pertains to the quashing of a First

Information Report. The relevant part of the said F.I.R. is quoted below:

"4. That while the said vehicle was plying from Ballygunge Phari through Nafar Kundu Lane and reach toward Chitta Ranjan Sishu Sadan Hospital (accused no.5) some muscle man numbering 5/6 persons with TATA Indica Car deadly weapon including fire arms and chased the complainant and forced to come down to complainant to said 7

vehicle and the said persons seized the said vehicle from the complainant and took away all the documents lying with vehicle including money receipt, R.C. Book, Tax token, Insurance Certificate and other valuable papers and it was having within the jurisdiction of Bhowanipore P.S. and it was happening on 29-11-08 at about 01.30 p.m. and they have not supply any inventery list to the complainant.

5. That the accused No.1,2,3 & 4 in collusion with other accused persons forcibly took away the vehicle from the lawful possession of the Complainant of the said Vehicle.

6. That the Owner/Complainant made contact with the accused No.1, 2 & 3 i.e. H.D.F.C. Bank Ltd. official at Glinder House 8, N.S. Road, 1st Floor, Kokata-700001, at about 3.00 P.M. and requested to released the said vehicle, but the officials of the accused No.1,2, & 3 misbehaved and manhandled with the complaint and threatened to sell of the vehicle.

7. That the accused No.1 knowing the vehicle is stolen properly received the same and dishonestly restrain the same in collusion with the other accused persons. The vehicle as per section 410 of I.P.C. is stolen property."

20. To appreciate the controversy involved in the present case, at the

outset, it has to be noticed that the relevant agreement is not a "Hire-

Purchase" agreement but rather a "car loan agreement." Therefore, the

defence of ownership of the vehicle is not available to the bank to justify

taking possession of the vehicle.

21. In dealing with the issue of quashing an F.I.R. in such cases, it may

not be necessary for the Court to address the ownership of the vehicle. The

act of taking possession of a vehicle following a loan or a hire-purchase 8

agreement may not by itself give rise to a criminal proceeding. However, at

the same time, it must be appreciated that the procedure adopted by the

bank or financier for the re-possession of the vehicle should adhere to the

procedure recognised by law. The bank cannot resort to the actions

prohibited by the Indian Penal Code or any other applicable law in force.

22. The principle of law relating to quashing of an F.I.R. is well-settled.

When the F.I.R. has been lodged with malice and the complaint does not

show ingredients of a cognizable offence against the accused, the First

Information Report may be quashed by the High Court in the exercise of its

power under Section 482 of the Code of Criminal Procedure, 1973. [See:

(1992) Supp 1 SCC 335 (State of Haryana v. Bhajan Lal), AIR 1960 SC

866 (R.P. Kapur v. State of Punjab) and (2021) SCC OnLine SC 315

(Neeharika Infrastructure Pvt. Ltd. V. State of Maharashtra)]. There

cannot be any departure from the said principles in dealing with an F.I.R.

lodged against the possession of a vehicle at the behest of a financier or

bank from the borrower. The same test as propounded in the aforesaid

cases should be applied. If on the plain reading of the F.I.R. it appears that

the financier or bank has taken recourse to the actions that constitute an

offence under the Indian Penal Code or any other law, the F.I.R. cannot be

quashed.

23. I am of the view that a plain reading of the present F.I.R. does not

disclose commission of any offence under Sections 379 and 384 of the

Indian Penal Code as there is no element of dishonest intention involved in 9

the present case against both the petitioners. Mr. Dutta has rightly relied

upon paragraph 13 of the Charanjit Singh Chadha (supra), which reads

as follows:

"13. But in the instant case, the owner repossessing the vehicle delivered to the hirer under the hire-purchase agreement will not amount to theft as the vital element of "dishonest intention" is lacking. The element of "dishonest intention" which is an essential element to constitute the offence of theft cannot be attributed to a person exercising his right under an agreement entered into between the parties as he may not have an intention of causing wrongful gain or to cause wrongful loss to the hirer. It is appropriate to note that the term "dishonestly" is defined under Section 24 IPC as follows:

"24. 'Dishonestly'.--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'."

24. The relevant F.I.R. also makes it clear that the only allegation against

the petitioners is that they "misbehaved and manhandled with the

complaint and threatened to sell of the vehicle."

25. Selling the vehicle cannot be perceived as a threat as it was the

agreed-upon consequence in terms of the relevant loan agreement.

26. In my view, Mr. Dutta's argument that the "sale of the vehicle"

neither can be viewed as a "threat" nor the means of avoiding it, is well

founded.

27. The mere allegations of misbehaviour and manhandling in the F.I.R.

also do not attract any provisions of the Indian Penal Code particularly 10

when no case of "hurt" within the meaning of Section 323 of the Indian

Penal Code has been made out.

28. In view of the aforesaid, I do not see any justification for the

continuation of the present criminal case against the petitioners.

29. Accordingly, the Bhowanipore P.S. Case No.315 dated December 21,

2008, under Sections 384/379/506/34 of the Indian Penal Code is

quashed as against the petitioners.

30. C.R.R. No.1958 of 2009 is allowed and the connection application

being I.A. No. C.R.A.N.1 of 2010 (Old No. C.R.A.N. 1165 of 2010) is

disposed of.

31. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

(Kausik Chanda, J.)