IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.7388 OF 2015 BETWEEN:
1. NARAYAN S/O CHIKKANNA, AGED ABOUT 43 YEARS, BRANCH MANAGER, M/S SHRIRAM TRANSPORT FINANCE CO.LTD., 13/88, DURGAMMA COMPLEX, DEVIATION ROAD, CHAMARAJA NAGAR AND PRESENTLY WORKING AS BRANCH MANAGER, NO.133, SHIKA COMPLEX, RAMAVILAS ROAD, MYSURU-560024.
2. BHASKAR S/O SHANKARE GOWDA, AGED ABOUT 36 YEARS, FIELD OFFICER, M/S SHRIRAM TRANSPORT FINANCE CO.LTD., 13/88, DURGAMMA COMPLEX, DEVIATION ROAD, CHAMARAJANAGAR-571313.
3. NAVEEN S/O MAHDEVAPPA, AGED ABOUT 31 YEARS, FIELD OFFICER, M/S SHRIRAM TRANSPORT FINANCE CO.LTD., 13/88, DURGAMMA COMPLEX, DEVIATION ROAD, CHAMARAJANAGAR-571313.
(BY SRI: M J ALVA, ADVOCATE) AND ABDUL KARIM S/O ANWAR PASHA, AGED ABOUT 32 YEARS, MAKKA MOHALLA, GALIPURA EXTENSION, CHAMARAJANAGAR-571313.
(BY SRI: SYED AKBAR PASHA, ADVOCATE) ... PETITIONERS ... RESPONDENT THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO i). SET ASIDE THE ORDERS DATED 16.10.2015 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE AT CHAMARAJANAGAR IN CR.R.P.No.65/2014 WHICH IS PRODUCED AT ANNEXURE-'A'. ii). QUASH THE COMPLAINT DATED 07.01.2014 AT ANNEXURE-'G' AND THE ENTIRE PROCEEDINGS IN P.C.R.No.4/2014 PURSUANT TO THE ORDER DATED 25.04.2014 PASSED BY THE PRL. CIVIL JUDGE AND J.M.F.C., CHAMARAJANAGAR WHICH IS PRODUCED AT ANNEXURE-'B'.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 16.04.2019 AND COMING ON FOR PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J, MADE THE FOLLOWING:-
O R D E R Petitioners were the employees of M/s Shriram Transport Finance Co.Ltd, a non-banking financial company. The company extended credit facility of Rs.4,63,834/- to the respondent for purchase of Ashok Leyland Tusker lorry bearing registration No.KA-01-D-1067 under Hire Purchase Agreement. The respondent failed to repay the installments to the company and all the efforts made by the petitioners to recover the dues having failed, petitioners got re-possession of the vehicle on 30.10.2013 by enforcing their right in terms of clause 5 of the Hire Purchase Agreement (Annexure-C). Feeling aggrieved, respondent appears to have raised a dispute before the District Consumer Disputes Redressal Forum by filing a complaint in CC No.47/2013. After hearing, the said complaint was dismissed by a considered order dated 26.11.2014. During the pendency of the said complaint, the respondent filed a private complaint before the learned JMFC, Chamarajanagar in PCR No.4/2014 seeking action against the petitioners for the alleged offences punishable under Sections 392, 418, 420, 424, and 427 r/w 34 of Indian Penal Code. The learned Magistrate received the complaint and recorded the sworn statement of the complainant and issued process to the petitioners. The petitioners challenged the same before the revisional court and by order dated 16.10.2015, the revisional Court dismissed the revision, holding that re-possession of the vehicle without resorting to the legal proceedings amounts to prima facie commission of the offences alleged against the petitioners.
2. Learned counsel for the petitioners has placed reliance on the decision of the Hon’ble Supreme Court in the case of CHARANJIT SINGH CHADHA AND OTHERS –V- SUDHIR MEHRA reported in AIR 2001 SC 3721 and has emphasized that the owner repossessing the vehicle delivered to the hirer under the Hire Purchase Agreement will not amount to theft by owner as vital element of dishonest intention is lacking. On the same point, learned counsel referred to another decision of the Hon’ble Supreme Court in the case of K.A.MATHAI ALIAS BABU AND ANOTHER –V- KORA BIBBIKUTTY AND ANOTHER reported in (1996)7 SCC 212, wherein it is held that the financier by taking possession of the bus from the complainant, cannot be said that he committed the offence of theft, that too with the requisite mens rea and requisite dishonest intention. The learned counsel has also referred to the decision of this Court in MS. SOWMYA AND OTHERS –V- STATE BY MAGADI ROAD POLICE STATION, BENGALURU AND ANOTHER reported in 2015 (4) KCCR 3135, wherein the above proposition has been followed and the proceedings initiated against the accused therein have been quashed. Learned counsel has also pointed out certain procedural irregularities committed by the learned Magistrate in recording the sworn statement of the complainant through his counsel and by placing reliance on the decision of the Division Bench of this Court in NAGANAGOUDA VEERANAGOUDA PATIL AND ANOTHER –V- MALATESH H.KULKARNI reported in 1998 Crl.L.J.1707 has sought to quash the entire proceedings initiated against the petitioners.
3. Countering the above contentions, the learned counsel appearing for the respondent has heavily relied on the decision of the Hon’ble Supreme Court in CITICORP MARUTI FINANCE LIMITED –v- S.VIJAYALAXMI reported (2012)1 SCC 1 which is followed by this court in Crl.P.No.5776/2018 DD 22.10.018 (Sri.BINOD TATER –v- VEERABADRA AND OTHERS) and would submit that the financier can seek recovery of possession of the vehicle financed by him only by following due process of law and cannot resort to repossess the same by using force. Since the petitioners have repossessed the vehicle without due process of law, the averments made in the complaint prima facie attract the ingredients of the offences and therefore, there is no justifiable ground to quash the proceedings. Further meeting the argument of the learned counsel for the petitioners that the alleged dispute is civil in nature and the petitioners having taken recourse to the remedies under the provisions of Consumer Protection Act Disputes are not entitled to invoke criminal process, learned counsel has referred to the law laid down by the Hon’ble Supreme Court in M/s INDIAN OIL CORPORATION –V- M/S NEPC INDIA LIMITED AND OTHERS (Criminal Appeal No.833/2002) reported in (2006) 6 SCC 736, wherein it is held that “mere fact that the complaint relates to a commercial transaction or breach of contract, for which civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not”. It is the submission of the learned counsel that the allegations made against the petitioners prima facie disclose the commission of the offences under Section 392, 418, 420, 424, 427 r/w 34 of Indian Penal Code and therefore there is no reason to quash the proceedings.
4. I have considered the rival submissions and have carefully perused the material on record.
5. Though the learned counsel for the petitioners has urged contentions based on the legal right of the financier to re- possess the vehicle by enforcing the terms of the agreement entered into between the parties, but in view of the procedural defect noticed in the proceedings conducted by the learned Magistrate, it may not be proper to enter into the said controversy at this juncture. Copy of the statement recorded by the learned Magistrate clearly discloses that the learned Magistrate has recorded the statements of the complainant and his witnesses through the advocate of the complainant contrary to Section 200 of Cr.P.C. Considering similar procedural irregularity, the Division Bench of this Court in Naganagouda Patil’s case (supra) has held that Section 200 Cr.P.C. prescribes that the Magistrate shall examine the complainant and his witnesses himself and record the substance of such examination; therefore it is not open to the complainant’s learned advocate to conduct examination-in-chief and that if such a procedure is followed, it is in breach of the mandatory provisions of Section 200 Cr.P.C.
In the aforesaid circumstances, keeping open the legal contentions urged by the learned counsel for the petitioners for consideration at appropriate stage, the petition is allowed. The order directing process to the petitioners and all consequent proceedings conducted by the learned Magistrate in C.C.No. 47/2013 is hereby quashed. The matter is remanded to the learned Magistrate for consideration of the complaint afresh in accordance with the provisions of Section 200 of Cr.P.C.
Sd/- JUDGE Bss