State Of Gujarat & 1 ­

[1.0] Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicants herein – original accused to quash and set aside the impugned FIR being C.R. No.I­128/2006 registered with Navapura Police Station, Vadodara lodged by respondent No.2 herein – original complainant for the offences punishable under Sections 384 and 114 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). [2.0] That respondent No.2 herein – original complainant has lodged the impugned FIR against the applicants herein – original accused for the offences punishable under Sections 384 and 114 of the IPC alleging inter­alia that the accused persons, on 06.10.2006, came to his residence and broke upon the lock of the Maruti Omni Van No.GJ­6JJ­1088 which was parked in the compound, obtained signatures of his minor daughter forcibly, who was playing in the compound and took away the said maruti car with briefcase, old passport, Rs.7000 cash, watch, digital camera etc. lying in the said maruti car. Thus, it is alleged that the applicants have committed the offence punishable under Sections 384 and 114 of the IPC. Being aggrieved and dissatisfied with the impugned FIR, applicants herein – original accused have preferred the present Criminal Miscellaneous Application under Section 482 of the CrPC.

[3.0] Shri Abhichandani, learned advocate appearing on behalf of the applicants has vehemently submitted that as such the applicants have not committed any offence. It is submitted that as such the complainant had taken loan on the said vehicle and the same was to be repaid by installments. However, no payment was made and thereafter the vehicle was traced and after following due procedure, the custody of the vehicle was taken and even an inventory was also carried out. Therefore, it is submitted that when the applicants have exercised their power of repossession of the vehicle for non­payment of the installments due and payable by the complainant, it cannot be said that the applicants have committed any offence as alleged. It is submitted that as such all the procedure was followed before repossessing the vehicle in question. It is submitted that as such the applicants waited for almost two and half years for their dues to be repaid and even notices were issued time and again but as, despite the same the installments were not paid, there was no other alternative but to repossess the vehicle. Relying upon the decision of the Hon'ble Supreme Court in the case of Charanjit Singh Chaddha v. Sudhir Mehra reported in 2001 SCC (Cri.) 1557, it is requested to allow the present application and to quash and set aside the impugned FIR.

[4.0] Application is opposed by Shri L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the State / Investigating Officer and the learned advocate appearing on behalf of the original complainant. Shri Dabhi, learned APP has produced the investigation papers for the perusal of the Court. It is submitted that the manner in which the maruti car was taken away and that too after forcibly obtaining signatures of minor daughter who was playing in the compound and after breaking open the lock of the maruti car, a prima facie case is made out against the applicants. It is submitted that there might be some dues due and payable by the complainant and the Finance Company might have the right to repossess, however, not by engaging goons and by using force and obtaining the signatures of the minor daughter. Therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Manager, ICICI Bank Ltd. v. Prakash Kaur & Ors. reported in AIR 2007 SC 1349, it is requested to dismiss the present application.

[5.0] Heard the learned advocates appearing for respective parties at length and considered the impugned FIR as well as even the statement of witnesses, more particularly, statement of daughter of the complainant who was at the relevant time minor. Considering the statement of the minor daughter of the original complainant, it appears that prima facie case is made out against the applicants for which even further investigation is required and/or no case is made out to exercise powers under Section 482 of the CrPC and to quash and set aside the impugned FIR. The right of the Finance Company to repossess the vehicle on non­payment of the installments is not disputed. However, the manner in which the vehicle is repossessed after breaking open the lock of the maruti van and after obtaining signatures of the minor daughter on blank papers, the same is not permissible. The statement of the minor daughter of the original complainant, recorded during the course of investigation, is self­explanatory. Under the circumstances, when a prima facie case is made out for further investigation and/or a prima facie case is made out considering the investigation papers on the basis of the investigation carried out so far and the manner in which the offence is alleged to have been committed and the car is repossessed, considering the decision of the Hon'ble Supreme Court in the case of Manager, ICICI Bank Ltd. (Supra), no case is made out to exercise powers under Section 482 of the CrPC and to quash and set aside the impugned FIR at the threshold.

[6.0] In view of the above and for the reasons stated above, present application fails and the same deserves to be dismissed and is, accordingly, dismissed. Rule is discharged. Ad­interim relief granted earlier stands vacated forthwith.

(M.R. Shah, J.) menon