Form-61
TO OBTAIN STAY / QUASH CRIMINAL PROCEEDINGS FOR COMPALINT OF THEFT, ROBBERY, DACOITY AGAINST THE EMPLOYEES
IN THE HIGH COURT OF JUDICATURE AT ______
CRIMINAL MISC. PETITION NO.______/20
Petitioner:
……………. S/o Shri ……………., presently working as ……………., ______
-Vs-
Non- Petitioner :
The State of …………..
CRIMINAL MISC. PETITION UNDER SECTION 482 CR. P.C. FOR QUASHING FIR NO……. OF THE POLICE STATION ______, FOR OFFENCE UNDER SECTION 379 I.P.C.
To,
The Hon’ble Chief Justice Shri ……. and his other companion Judges of the …….. High Court of Judicature at ______
MAY, IT PLEASE YOUR LORDSHIPS :
On behalf of the petitioners, it is most respectfully submitted as under :
1. The brief facts of the case is that one ………….of ……….had taken a loan from HINDUJA LEYLAND FINANCE LTD for purchase of a brand new vehicle______bearing Regn.No…………………. in the year ……….. under a Loan Agreement dt._____. The said vehicle was in hypothecation with the Finance Company i.e. HINDUJA LEYLAND FINANCE LTD. The amount financed under the said Loan Agreement is Rs. /- and the same has to be paid by him along with a sum of Rs. /- being interest charged by the company for extending the finance facility to the said person, in ____ monthly instalments.The monthly instalment amount was fixed at Rs……../-. Each installments to be paid to the Company on …….of every month starting from ………... A copy of the Loan Agreement is produced herewith and marked as ANNEXURE 1. As per Clause ____ of the said agreement the financier/Lender of the vehicle/machinery is entitled to repossess the asset in the event of failure of borrower to repay any of the installments on their respective due dates as per the Second Schedule of the said agreement, despite a specific notice issued to him in this regard.
2. That the term of contract expired on ……, but still the borrower did not repay the total amount of installments and most of the Cheques issued by him in favour of the Company for paying the monthly instalment dues got bounced. Accordingly, in the month of …….., a legal notice was issued to him demanding the over dues to be paid by him. Inspite of the said notice the borrower remained indifferent by not paying the overdues. Hence with no other option the company issued a notice to the borrower stating that the loan account of the party would be terminated and legal action will be taken against him if he is not paying the overdues immediately to the Company. Further he was also informed that his vehicle would be repossessed in the event of his failure to repay the instalment dues with in the stipulated period. After the receipt of the said notice, some installments were paid by Shri ………….by way of demand drafts in the month of ……...
3. That owing to the default committed by the borrower in paying the installments on their due date, a sum of Rs. /- was levied against the borrower as penalty amount. Ultimately, the customer stopped repaying the installments after ……..and as many as ………….. installments still remains to be paid.
4. That on ……………., the vehicle was found lying outside the Company’s Office at …….. and since installments were overdue, the Company’s official at …….repossessed the vehicle in pursuance of Clause _____ of the said Loan Agreement. It is relevant to mention here that the vehicle had been brought to ……… by …………. who claims to be a friend of borrower. ………….. had come to the office of the Company (______) with regard to the purchase of another repossessed vehicle. Certain personal belongings of ………….. and some cash were lying in the vehicle which …………… he took back after giving an acknowledgement to the ………….. of M/s. ______on ……... A copy of the letter signed by ……….., ……………. and ………….. who came to ……. for the aforesaid purpose is produced herewith and marked as ANNEXURE 2.
5. That intimation was also given to the SHO, Police Station by telegram as well as personally. A copy of the telegram is submitted herewith and marked as ANNEXURE 3. At the time of repossession of the vehicle an inventory list of all items available in the vehicle in the presence of ……….. was taken which was duly signed by him. And it may be seen that the inventory list does not contain any of the article as mentioned in the complaint. A copy of the statement of accounts as on ………….. of the party is also submitted herewith and marked as ANNEXURE 4 as per which a sum of Rs…………… was over due on that date. A bare look at the statement of accounts also shows that number of Cheques issued by the borrower have been returned by the Company. Be that as it may, …………… became annoyed by this action of the Company in repossessing the vehicle and as an after thought lodged a first information report at the Police Station …………. on ……….. at ……….. p.m. alleging inter alia that he alongwith ………. and ……………. had come to ………. in ……………, at the office of M/s. ______……… where they had to purchase a ………….vehicle in resale from the Branch Manager………….. They had brought some cash in the vehicle which was lying in the glove compartment of the car. ……………. briefcase was also lying in the vehicle. When they went up to talk to the Branch-in-charge and came back after talks at about 3’O clock, they saw that the vehicle was not available at the place where they had parked the same. Some Rs ………... belonging to the first informant and …………….. briefcase also carrying some cash was also lying inside the vehicle. The first informant suspected that the car was financed by M/s.______and, therefore, probably, the car had been lifted by the Company’s officials. They met the ……………… Shri. ……………… who denied having the vehicle with him. After some search at about _____clock……………… called them through some employee and informed him that the vehicle had been seized and thereafter asked for briefcase, papers and cash etc. on which ……………… briefcase and cash were returned and some other documents and cash belonging to the complainant and receipts were not returned. On these allegations a case under Section 379 I.P.C. has been registered and investigation commenced.
The petitioner submits that the very registration of the FIR in this case is nothing but a clear case of abuse of the process of the Court. He, therefore, prefers this misc. petition on the following grounds amongst others
GROUNDS
- That the very registration of the FIR against the petitioner is nothing but an abuse of the process of the Court. A bare reading of the contents of the FIR discloses that no prima facie offence whatsoever has been made out against the Petitioner. Therefore, the first information report is liable to be quashed.
- That the FIR has been lodged out of malice and is full of exaggeration. ………….. had given receipts for total personal belongings and cash lying in the vehicle on repossession of the same by the company. Further more, the factum of repossession was reported by the Company to the SHO, …………., …………... Therefore, lodging of first information report with the police is nothing but done as an act of malice and therefore the FIR deserves to be quashed.
- That the FIR has been lodged by Shri …………….. just as a counter blast to the action of the Company in repossessing the vehicle in question. At the time of repossession, there was no objection by Shri ………… Furthermore, much prior to the act of repossession a notice was given by the Company to the borrower that the Company intended to repossess the vehicle on account of non-payment of installment dues. When the installments were not paid to the Company, then the company was well within its right to repossess the vehicle as per the terms and condition of the Loan Agreement.
- The other grounds shall be urged at the time of arguments with the prior permission of this Hon’ble Court.
It is, therefore, prayed that Investigation of the case in FIR no ______may be stayed until the disposal of the quash petition and thus render justice.
(……………………………)
COUNSEL FOR THE PETITIONER.
NOTES :
- No such misc. petition has been filed previously in this matter.
- That PF and notices shall be submitted within three days of admission.
- That this misc. petition has been typed by my Pvt. Steno.
(………………………)
COUNSEL FOR THE PETITIONER
In this connection, the attention of the court is drawn to the following decided cases wherein it is held that the seizure or repossession of the vehicle by the finance company namely the owner of the asset on the ground of non-payment of instalment dues by the customer cannot be treated as theft.
I) Niranjan Prakash & another vs Mannilal Dwivedi (AIR 1964 Allahabad 433 = ILR 1963 (2) All 13 = 1964 (2) Crl. L.J. 319).
Facts in brief
In exercise of its powers under the terms of an agreement, the officers of a financing Corporation (the petitioners) seized a truck and removed it from the possession of the hirer who lodged an F.I.R with the police alleging that the said officers dishonestly and illegally removed the truck in the absence of the driver and of the complainant and have taken it in their possession, thereby committing theft. The report was followed by a regular complaint filed in the court of the Magistrate. A receipt for the payment of the money by the complainant to the partner of the Financing Corporation was relied upon by him to prove full payment of the amount due. The accused filed this petition in the High Court to quash the proceedings.
Judgment
It is one of the essential ingredients of the offence of the theft that the deprivation of possession of the property should be with a dishonest intention. When a person is said to be acting dishonestly is explained by the I.P.C., namely, when a person does anything with the intention of causing wrongful loss to some person or wrongful gain to another person. Wrongful gain is gain by unlawful means of property to which the person gaining is not legally entitled; likewise, wrongful loss means the loss by unlawful means of property to which the person losing it is legally entitled. The question, therefore, would be in the present case as to which party was legally entitled to the truck, the subject matter of the alleged offence on 30-0-1960 when it was removed. If on the facts and circumstances as emerge out from the record there appear a doubt as to legal title of the truck, one of the main ingredients in the offence of theft disappears. Therefore, if it possible for me to be satisfied on the record as it stands that the legal title of the truck was seriously disputed on the date when the alleged offence is said to have been committed, the applicants would be entitled for quashing of the proceedings pending against them.
It further shows that a dispute which would be essentially of a civil nature between the parties had been ingeniously converted into a proceeding of a criminal nature. Hence I am convinced that the applicant would be entitled for quashing the proceedings pending against them.
II) Pooranl Mal -Vs- Sadho Ram (1965 Allahabad Law Journal 214)
Facts in Brief
A criminal complaint was given against the Finance company, who held a HP agreement over a truck and exercised its right to seize it after terminating the agreement. The complainant cited S.392 (Robbery), S 323 (Theft), Ss. 504 and 506 (Extortion), I.P.C. The finance company applied under S.561 – A, Crl. P.C. to the High Court to quash the charges as amounting to abuse of the process of the court. The court quashed the charge under S.323 (theft), and in regard to other charges it was observed that the matter was remitted to the Magistrate for decision on facts after appreciation of the evidence.
Judgment
The law relating to Hire Purchase is not settled. The law leaves the parties to their own agreement in respect of various incidents of the hire purchase agreement. If the parties specifically provide in their agreement for certain situations and prescribe a particular procedure which they are to adopt and specify the means which they may use to resolve those situations they are bound by those provisions in the agreement.
Under the terms of the agreement, if the monthly hire is in arrears, the owner may, with or without notice to the hirer, terminate the contract of hiring and forthwith take possession of the vehicle. Thus if the hirer is in arrears, the finance company could terminate the contract. On termination of the contract it becomes legally entitled to take possession of the vehicle. Similarly, as soon as the hirer comes to know that the contract has been terminated, he is duty bound by agreement to return the vehicle to the owner.
After the termination of the contract, the possession of the vehicle by the hirer is wrongful detention. The position is that on termination of the contract the owner ie., the finance company is legally entitled and the complainant is not so entitled to the vehicle. The first ingredient of the offence of theft is, therefore lacking.
If a person is in possession of some goods and a stranger comes and takes it against his will, it is well settled that the former has in law a right to use sufficient force to retake the goods.
On principle as well as authority, it seems clear that a license given by a hirer to seize the vehicle is irrevocable. Such a license is tantamount to hirer’s consent to the owner taking the vehicle. Such taking cannot, in law, amount to taking without consent. The third element of the offence of theft has equally not been established.
III) Trilok Singh and others -Vs- Satya Deo Tripathi (AIR 1979 SC 850)
I.P.C sections 395, 468, 465, 471, 412 – 120- B/34, and Crl. P.C. S. 482 – Hire Purchase agreement over a truck – complaint for theft / robbery / dacoity / criminal conspiracy, etc., by hirer against financier on the latter exercising his right of seizure, when default was committed – petition by accused to quash the proceedings allowed – dispute, held, to be of a civil nature and initiation of criminal proceedings, an abuse of the process of the court.
IN THE HIGH COURT OF JUDICATURE AT ______
CRIMINAL MISC. STAY APPLICATION NO.______/20
IN
CRIMINAL MISC. PETITION NO.______/20
Petitioners :
…………… S/o. Shri ………………., presently working as ……………., …………..
-Vs-
Non-petitioner
The State of ______.
STAY APPLICATION FILED UNDER SECTION 482 OF Cr.P.C.
To
The Hon’ble Chief Justice Shri …………… and his other companion Judges of the ………….. High Court at ______
MAY IT PLEASE YOUR LORDSHIPS
On behalf of the petitioner, it is most respectfully submitted as under
- That from the grounds mentioned in the misc. petition, it is apparent that the petitioner has strong prima facie case and the misc. petition is bound to be accepted.
- That if stay sought is not granted, the petitioner will be put to an irreparable loss and the very purpose of filing this misc. petition will become infructuous.
It is, therefore, prayed that the further proceedings sought to be taken in pursuance of the registration of FIR No………….. of the Police Station ………….., …………… may kindly be stayed during the pendency of this misc. petition.
(……………………)
COUNSEL FOR THE PETITIONER.
NOTES :
- No such stay application has been filed previously in this matter.
- That PF and notices shall be submitted within three days of admission.
- That this stay application has been typed by my pvt. Steno.
- That due to non-availability of piepapers, this stay application has been typed on these stout papers.
(……………………)
COUNSEL FOR THE PETITIONER
Dated at Chennai on this the___ day of______200__.
IN THE HIGH COURT OF JUDICATURE AT ______
CRIMINAL MISC. PETITION NO.______/20
Petitioner
…………………
Versus
Respondent :
The State of ………………
AFFIDAVIT IN SUPPORT OF MISC. PETITION AS WELL AS DOCUMENTS
I, …………. S/o. Shri ……………, presently working as …………….., ………….. do hereby swear in the name of God and state as under :
- That I am the petitioner in this case and I am well aware with the facts of this case.
- That the annexed miscellaneuous petition has been drafted by my counsel as per my instructions and contents thereof are true and correct to my personal knowledge.
- That the Annexure 1 to 4 appended to the miscellaneous petition are true and correct copies of their respective original.
DEPONENT
VERIFICATION
I, ………….. do hereby verify on oath that the contents of my above affidavit are true and correct to my personal knowledge and nothing has been concealed therein.
DEPONENT