# Satish Mishra & Ors v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 163
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-31
- **Case number:** Application U/S 482 No. 11114 of 2005
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-mishra-ors-v-state-of-u-p-ors-45777
- **Pages:** 18

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
-
Indian
Penal Code,1862-Sections 392,504,506quashing of-complaint-trial court neglected to
make a searching enquiry into the veracity of
the allegations and credibility of witnessescriminal trial cannot be set in motion in a
cursory manner-the dispute is of civil natureconcealment of material facts while instituting
the criminal proceedings just to harass the
applicant is established-A litigant at his own
whim cannot invoke the authority of the
Magistrate-A really grieved person with clean
hands must have access to invoke the said
power-the conduct of the complainant has been
that of a defaulting borrower who has abused
the process of law to defeat his creditors-the
complaint clearly mislead the court as it was
based on false and frivoulous story.(Para 43,44,
45 ,63, 64,65 to 70)

B. In an agreement of hire purchase, the
purchaser remains merely a trustee/bailee
on
behalf
of
the
financier/financial
institution and owenership remains with the
latter.Thus, in case the vehicle is seized by
the financier, no criminal action can be
taken against him as he is repossessing
the goods owned by him.(Para 54 to 60)

In the instant case, complainant acquired
the bus with financial assistance rendered
by the financial institution. The agreement
between the parties was a hire purchase
agreement. The complainant defaulted in
the payment of instalments. The bus was
seized by the financier upon the default.
This led to the criminal complaint against
the financier.(Para 7 to 11)

The application is allowed. (E-6)

List of Cases Cited:-

## Text

_Characters 0–39,701 of 61,511. This is a partial read: ask again with offset=39701 for what follows._

6 All. Satish Mishra & Ors. Vs. State of U.P. & Ors.
163
parties in the appeal pending before the
Appellate Court.
----------
(2020)06ILR A163
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2020

BEFORE
THE HON'BLE AJAY BHANOT, J.

Application U/S 482 No. 11114 of 2005

Satish Mishra & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicants:
Sri C.K. Parekh, Sri M.A. Ansari

Counsel for the Respondents:
A.G.A., Sri A.K. Singh, Sri Prashant Singh
Soni, Sri Prashant Singh 'Som'

A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
-
Indian
Penal Code,1862-Sections 392,504,506quashing of-complaint-trial court neglected to
make a searching enquiry into the veracity of
the allegations and credibility of witnessescriminal trial cannot be set in motion in a
cursory manner-the dispute is of civil natureconcealment of material facts while instituting
the criminal proceedings just to harass the
applicant is established-A litigant at his own
whim cannot invoke the authority of the
Magistrate-A really grieved person with clean
hands must have access to invoke the said
power-the conduct of the complainant has been
that of a defaulting borrower who has abused
the process of law to defeat his creditors-the
complaint clearly mislead the court as it was
based on false and frivoulous story.(Para 43,44,
45 ,63, 64,65 to 70)

B. In an agreement of hire purchase, the
purchaser remains merely a trustee/bailee
on
behalf
of
the
financier/financial
institution and owenership remains with the
latter.Thus, in case the vehicle is seized by
the financier, no criminal action can be
taken against him as he is repossessing
the goods owned by him.(Para 54 to 60)

In the instant case, complainant acquired
the bus with financial assistance rendered
by the financial institution. The agreement
between the parties was a hire purchase
agreement. The complainant defaulted in
the payment of instalments. The bus was
seized by the financier upon the default.
This led to the criminal complaint against
the financier.(Para 7 to 11)

The application is allowed. (E-6)

List of Cases Cited:-

1. Rajiv Thapar & ors. Vs Madan Lal Kapoor
(2013) 3 SCC 330

2. Y. Abraham Ajith & ors. Vs Inspector of Police
Chennai & anr. (2004) 8 SCC 100

3. Sardar Trilok Singh & ors. Vs Satya Deo
Tripathi, AIR (1979) SC 850

4. K.A. Mathai @ Babu Vs Kora Bibbikutty
(1996) 7 SCC 212

5. Charanjit Singh Chadha Vs Sudhir Mehra
(2001) 7 SCC 417

6. K.L. Johar & Co. Vs Dy. Commercial Tax
Officer, AIR (1965) SC 1082

7. Anup Sarmah Vs Bhola Nath Sharma & ors.
(2013) 1 SCC 400

8. Priyanka Srivastava & anr. Vs St. Of U.P.&
ors. (2015) 6 SCC 287

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The application under Section 482
has been instituted with the following
prayer:-

"Quash entire proceedings along
with complaint of Criminal Case No. 1635
(7635) of 2004, Pradeep Kumar Singh Vs
Ashish Pandey & others (initiated on the
164 INDIAN LAW REPORTS ALLAHABAD SERIES
application i.e. under Section 156(3) Cr.P.C.,
dated 20.12.2002 which has been treated by
order
dated
24.03.2004
as
(Criminal
Complaint), pending in the court of Additional
Chief Judicial Magistrate, Court no. 1,
Varanasi under the sections 392, 504, 506,
I.P.C.
Police
Station
Jaitpura,
District
Varanasi as well as the order dated 13.07.2005
of the Additional Chief Judicial Magistrate,
Court no. 1, Varanasi (Annexure-19)."

2. Sri C. K. Parekh, learned Senior
Counsel assisted by Sri M.A. Ansari,
learned counsel for the applicants, assailing
the impugned orders and the proceedings
before the court below, contends that the
court at Varanasi does not possess the
jurisdiction to try the offences even if the
allegations in the complaint are taken on
their face value (though the said allegations
are denied as false). Learned counsel
further contends that the dispute is
essentially of civil profile. The criminal
proceedings have been instituted to defeat
the creditors. The proceedings are actuated
by malafide. He further contends that even
if evidences in the record are taken on their
face value, no offence is disclosed against
the applicants. Learned Senior Counsel for
the applicants lastly submits, that the
complaint is an abuse of process of court.
The respondent no. 3 concealed material
facts and documents before the learned trial
court.
The
conduct
of
the
complainant/respondent no. 3 deserves to
be severely censured and held accountable
to law. The complainant/respondent no. 3
has mislead the court by concealing
material facts.

3. Per contra, Sri A. K. Singh, learned
counsel for the respondent no. 3 submits that
part of the offence was committed in District
Varanasi and the trial court at Varanasi has the
territorial jurisdiction to try the offence. Learned
counsel for the respondent no. 3 thereafter
contends that on a perusal of the material in the
record a prima facie offence is made out against
the applicants.

4. Heard learned counsel for the parties.

5. The facts leading upto the instant Section
482 Cr.P.C. proceedings, shall be considered.

6. An application was filed by respondent
no. 3, Pradeep Kumar Singh under Section 156(3)
Cr.P.C. before the learned Additional Chief
Judicial Magistrate, Varanasi.

7. According to the application the
complainant/respondent no. 3 is engaged in the
business of running buses, under the name and
style of an entity M/s Kumar Travels. One bus in
the ownership of the complainant/respondent no.
3, bearing registration no. UP65 R 1659 was
booked to transport a marriage party from
Varanasi to Lucknow, on 27/28.11.2002.

8. On 27.11.2002 when the aforesaid
bus arrived at the office of respondent no.
3/complainant at Varanasi, some persons
including Satish Mishra, Ashish Pandey,
Rajeev Dixit, threatened the bus driver
Kamlesh that they will deal with him at
Lucknow. The aforesaid persons tailed the
bus in a Tata Sumo till Lucknow. On the
night of 27/28.11.2002 at about 1.30 a.m.
the said Ashish Pandey, Rajeev Dixit,
Satish Mishra and two other persons
carrying fire arms with criminal intent and
common intention entered the lodging
place of the marriage party at Milan Guest
House, Manak Nagar, Lucknow. The said
persons threatened and assaulted the driver
and the cleaner of the bus, robbed a sum of
Rs. 5000/-, and escaped with the bus and a
VCR fixed therein. The bus driver and one
member of the marriage party Raghunath
Singh informed the Police Station, Manak
Nagar, Lucknow about the aforesaid
incident. When the bus driver Kamlesh and
6 All. Satish Mishra & Ors. Vs. State of U.P. & Ors.
165
the members of the marriage party arrived
at Lucknow Bus Station on 28.11.2002 for
return journey to Varanasi, at about 1.00
p.m. Ashish Pandey, Rajeev Dixit, Satish
Mishra and two other persons forcefully
evicted bus driver Kamlesh from the bus by
holding a gun to his head. The said persons
abducted the bus driver Kamlesh and
escaped in their Tata Sumo. The said
persons
threatened
members
of
the
marriage party namely Ravi Chaubey,
Rajesh Chaubey and Shashi Singh, who
had resisted them. The complaint concludes
by summing up the allegation that Ashish
Pandey, Satish Mishra, Rajeev Dixit and
two other persons with the common intent
committed the criminal act of robbing the
applicant of his bus and abducted the driver
of the bus. Members of the marriage party
informed the applicant about the incident.
The applicant intimated the Superintendent
of
Police,
Lucknow
and
Senior
Superintendent of Police, Varanasi about
the incident on 29.11.2002, however no
action in regard thereto was taken by the
concerned officials.

9. The learned Trial Court by order
dated 03.01.2003 directed the police
authorities "to register the case and submit
the report of the investigator".

10. The custody of the vehicle was
taken by the police authorities. On an
application made by respondent no. 3, the
aforesaid bus bearing registration no. UP65
R 1659 was released by the learned
Additional Chief Judicial Magistrate, Court
no. 1 Varanasi by order dated 04.04.2003.
The order dated 04.04.2003 passed by the
learned
Additional
Chief
Judicial
Magistrate, Court no. 1 Varanasi, releasing
the vehicle in favour of the respondent no.
3 described the respondent no. 3 as the
registered the owner of the vehicle and
consequently entrusted the same to his
custody with the following conditions;

The
respondent no. 3,
was
required to deposit the installments, as per
the law, during the pendency of the case.
The registered owner (respondent no. 3)
was also required to produce the vehicle at
his own cost before the learned Trial Court
as and when required. The S.O. Jaitpura,
District Varanasi was directed to make over
the possession of the bus to the registered
owner of the bus.

11. Pursuant to the investigation
under taken by the police authorities on the
first information report registered as Case
Crime No. 25 of 2002, the police
authorities submitted a final report before
the learned Trial Court on 10.05.2003. The
final report submitted by the police
authorities records that upon investigation
it came to light that the "matter related to
finance". The bus was financed by Tata
Finance Ltd. The applicant failed to deposit
the amount due to the finance company.
The applicant got the criminal proceedings
registered, as he was not inclined to deposit
the amount due from him to the finance
company.
The
investigating
officer
concluded that the dispute was civil in
nature and no criminal case was made out
against the accused persons.

12. The respondent no. 3 filed a
protest petition, refuting the final report
submitted by the police authorities after
investigation.

13. The learned Trial Court allowed
the protest petition submitted by the
respondent no. 3 by the impugned order
dated
24.03.2004.
The
order
dated
24.03.2004 passed by the Additional Chief
Judicial Magistrate, Court no. 1, District
166 INDIAN LAW REPORTS ALLAHABAD SERIES
Varanasi, rejected the final report submitted
by the police authorities, after investigation
and directed that the matter be treated as a
complaint case.

14. The learned Trial Court in the
order dated 24.03.2004, found that the
investigating officer was not justified in
submitting the final report, merely on the
foot that the matter related to finance. In
the wake of such discussion the final report
submitted by the investigating officer was
rejected.

15. The complainant-Pradeep Kumar
Singh, respondent no. 3, testified before the
learned trial court and gave a statement
under Section 200 Cr.P.C., on 24.04.2004.
In his statement before the learned trial
court P.W.1 Pradeep Kumar Singh stated
that on 27.11.2002 when the bus bearing
Registration No.U.P. 65 R/1659 was
departing from Varanasi to Lucknow with
the marriage party, Ashish Pandey, Satish
Misra and Rajeev Dixit and two or three
other persons accompanying them came to
the office and made enquiries regarding the
aforesaid bus. The said persons with
criminal intent chased after the bus till
Lucknow. On the night of 27/28.11.2002 at
about 1.30 a.m., the accused persons armed
with gun and rifle entered the Milan
Restaurant and Guest House at Lucknow,
with criminal intent and assaulted the bus
driver-Kamlesh.
The
said
persons
threatened the bus driver and dragged out
him from the bus. The aforesaid persons
looted Rs.5,000/- from the person of the
driver, and sped away with the bus with the
TV and VCR (fixtures in the bus). The
information regarding the incident was
given immediately thereafter, to the Police
Station Manak Nagar, District-Lucknow
immediately on 28.11.2002. The accused
then arrived at Roadways Bus Stand at
about 1.30 a.m. on 28.11.2002, where the
driver Kamlesh was awaiting his bus for
Varanasi.
The
said
accused
persons
abducted the driver Kamlesh at gun point.
The information about the incident was
given to him (complainant) by the members
of the marriage party on 29.11.2002. The
respondent no. 3 (complainant) submitted a
complaint to the Superintendent of Police,
Lucknow, Senior Superintendent of Police
(Crime Branch), Lucknow and Senior
Superintendent
of
Police,
Varanasi.
However, no action was taken on the
aforesaid complaints.

16. Shashi Singh S/o Shiv Shanker
Singh, PW-2 testified before the learned
Trial Court. Shashi Singh in his statement
under Section 202 Cr.P.C. deposed before
the learned Trial Court, that on 27.11.2002,
he travelled Varanasi to Lucknow in Bus
No. UP 65 R 1659 as part of the marriage
party. The bus was parked at Manak Nagar
at Milan Guest House, when at 1.00 a.m.
many persons bearing arms (gun and rifle)
were seen assaulting the driver Kamlesh.
When he came close to the bus, he saw the
accused Ashish Pandey, Rajeev Dixit,
Satish Mishra and two or three other
persons forcibly pushed driver Kamlesh out
the bus. Thereafter the said persons made a
get away with the bus. The information of
the incident was given to the Police Station,
Manak
Nagar on 27/28.11.2002.
On
28.11.2002, when the marriage party was
set to board a bus to Varanasi from
Lucknow bus station, the said accused
persons arrived and abducted the driver
from the bus at about 1.00 p.m. The
information in regard to the said incident
was given to the Investigating Officer,
Police Station, Jaitpura.

17. One Ravi Chaubey S/o Bachhan
Chaubey also testified before the learned
6 All. Satish Mishra & Ors. Vs. State of U.P. & Ors.
167
Trial Court as PW-3, and got his statement
recorded under Section 202 Cr.P.C. In his
testimony before the Trial Court the said
PW-3, Ravi Chaubey deposed that on
27.02.2003 he travelled from Varanasi to
Lucknow on 27.11.2002 in Bus No. UP 65
R 1659. The marriage party was staying at
Milan
Guest
House,
Manak
Nagar,
Lucknow. After dinner as he was preparing
to go to bed, a sudden noise was heard. He
went in the direction of the noise. When he
approached the bus he saw many persons
armed with rifle and gun assaulting the bus
driver. They forced the bus driver out the
bus and escaped with the bus. Information
regarding the incident was given to the
Police Station, Manak Nagar on the same
day. On the next date i.e. 28.11.2002, the
marriage party had assembled at Lucknow
Roadways (bus stand). He had boarded the
bus when he saw the same accused arrived
at 1.00 p.m. and abducted the driver
Kamlesh, at gun point. The said Ravi
Chaubey
witnessed
the
incident
and
recognised the accused persons. He also
gave a statement to this effect to the
investigating officer. However, he was not
aware whether his correct statement was
recorded by the investigating officer.

18. In the wake of the aforesaid
evidences, the learned trial court in
criminal case no.236 of 2003, summoned
the applicants under Sections 392, 504 and
506 IPC by order dated 25.05.2004. The
applicants assailed the said order by
instituting criminal revisions, registered as
Criminal Revision No.2891 of 2004,
Ashish Pandey Vs. State of U.P. and
Criminal Revision No.2890 Satish Misra
and another Vs. State of U.P. before this
court. The aforesaid companion criminal
revisions were decided by a common order
and judgement dated 03.12.2004 rendered
by this Court.

19. The operative portion of the said
judgement is extracted hereunder:

"The learned Magistrate may,
however, again consider the criminal
complaint along with any other evidence,
which may be produced before it and pass
suitable orders thereafter in accordance
with law."

20. Pursuant to the order passed by
this Court, the respondent No.3 introduced
two more witnesses, to support his case in
the complaint. Sri Kamlesh Singh as P.W.4
testified before the learned trial court. In
his statement under Section 202 of the
Cr.P.C., the said Kamlesh deposed that he
was the driver of the bus No.U.P.65 R
1659. The owner of the bus is Pradeep
Kumar Singh. On 27.11.2002, he took the
bus
to
Kumar
Travels
Agency
of
respondent no. 3 at Lanka (Varanasi), for
obtaining the permit to purchase diesel for
onward journey to Lucknow. When he
stopped the bus at Kumar Travels, one
unnumbered Tata Sumo carrying Ashish
Pandey, Satish Mishra and Rajeev Dixit
and two other persons came to the office
and started a disputation in regard to the
ownership of the bus. The said persons
asked him for the destination of the
marriage party. When he declined to
provide such information, they threatened
him. When the bus started its onward
journey to Lucknow, the said Ashish
Pandey, Satish Mishra and Rajeev Dixit
and two or three others persons started
following the bus. They chased the bus till
Milan Guest House at Lucknow. On
26/27.11.2002 at about 1.30 a.m. the
aforesaid accused persons armed with a
rifle and gun entered into the bus and
assaulted him grievously with the buts of
the gun. The said persons also threatened
him. The said persons extorted Rs.5,000/-
from him (which was paid by the marriage
168 INDIAN LAW REPORTS ALLAHABAD SERIES
party as fare), and forcibly took away the
bus, along with the VCR which was
installed in the bus. The information
regarding the incident was given by one
Jadunath Singh, a member of the marriage
party to Police Station Manak Nagar,
Lucknow. On 28.11.2002 at about 1.00 pm.
when he was standing at the roadways bus
stand, for return journey to Varanasi, the
said accused persons came and abducted
him at gun point in a Tata Sumo. The said
incident was in the knowledge of the
members of the marriage party, who
informed the bus owner. The said accused
persons wanted him to sign some blank
papers, which he refused to do. The
statement was given before the learned
Magistrate on 21.03.2005.

21. The second witness introduced by
the applicant/respondent no. 3, was one
P.W. 5 Rajesh. In his deposition before the
learned trial court under Section 202
Cr.P.C. the said P.W. 4 Rajesh stated that on
27.11.2002 he was part of the marriage
party which was travelling in bus No.U.P.
65 R 1659 from Lanka, Varanasi to
Lucknow. The bus stopped at the office of
Kumar Travels for taking out the permit.
Some persons in an unnumbered Tata Sumo
arrived at that point of time and started an
altercation with the owner of the bus. The
said persons threatened to take the money
at Lucknow. The said persons tailed the bus
from Varanasi to Lucknow. The driver of
the bus informed him that the said persons
Ashish Pandey, Satish Misra and Rajeev
Dixit and another person, had criminal
antecedents. On the night of 27/28.11.2002
at about 1.30 a.m., the said persons
carrying a rifle and a gun, boarded the bus
while it was located at Milan Guest House,
Lucknow. The accused persons looted a
sum of Rs.5,000/- from the bus driver, and
escaped with the bus and the fixtures
therein (CD VCR). The said persons
threatened the members of the marriage
party, who resisted them and assaulted the
driver grievously. On 28.11.2002 at 1.00
pm. when the members of the marriage
party gathered for their return journey from
Lucknow, the accused persons abducted the
driver Kamlesh at the gun point and made a
get away in the Tata Sumo vehicle.

22. In the light of the aforesaid
evidences and the order passed by this
Court, the learned trial court considered the
controversy afresh. The learned trial court
summoned the applicants under Sections
392, 504, 506(2) IPC, by order dated
13.07.2005.

23. Learned trial court in its order
dated 13.07.2005, referenced the earlier
proceedings including the complaint and
the deposition of P.W. 1 as well as P.W. 2,
the order passed by the learned trial court
on 25.05.2004 and the judgement and order
of this Court dated 03.12.2004. Thereafter,
the order dated 13.07.2005, embarks on a
consideration of the deposition of P.Ws. 3
and 4. The learned trial court noticed the
statements of P.W. 4, Driver Kamlesh and
P.W. 5 Rajesh a member of the marriage
party, who had testified that the accused
persons had threatened the Driver at
Varanasi by saying that "he will deal with
you". On the foot of the aforesaid
testimonies of the P.Ws. 3 and 4, the trial
court
found
that
it
possessed
the
jurisdiction to try the accused persons since
part of the offence was committed in the
territorial jurisdiction of district Varanasi.

24. In the wake of these findings, the
trial court summoned the applicants under
Sections 392, 504, 506(2) I.P.C. by
recording that a prima facie offence was
made out against the accused persons under
the provisions of the Indian Penal Code.
6 All. Satish Mishra & Ors. Vs. State of U.P. & Ors.
169

25. Some facts relevant for a
judgment in the instant case have been
established beyond a pale of dispute and
are admitted by the parties.

26. As per undisputed averments in
the application under Section 482 Cr.P.C.
the applicant no. 1 was an Assistant
Manager in Tata Finance Ltd. at Lucknow
at the time of the incident. The applicants
no. 2 and 3 are the employees of Motor and
General Sales Limited, 45, Muir Road,
Rajapur, Allahabad. M/s Motor and General
Sales
Limited
is
a
dealer
of Tata
Engineering and Locomotive Companry
(TELCO).

27. The respondent no. 3 had availed
financial assistance from Tata Finance to
purchase
the
bus
which
came
into
subsequent
dispute. A
hire
purchase
agreement
was
duly
executed
on
31.03.2001 between the respondent no. 3
and the Tata Finance Ltd. Company. The
agreement and the execution thereof is not
disputed by the respondent no. 3, though it
was not disclosed before the trial court in
the complaint. The agreement is annexed as
annexure 1 to the application.

28. The document is admitted by both
parties, and most relevant to the dispute, is
being looked into by this Court.

29. The jurisdiction of the High Court
under Section 482 Cr.P.C. to consider
material produced by the accused for the
first time when the said material is not
before the trial court came up for
consideration before the Hon'ble Supreme
Court in Rajiv Thapar and others Vs
Madan Lal Kapoor reported at 2013 (3)
SCC 330. The Hon'ble Supreme Court in
Rajiv
Thapar
(supra)
allowed
consideration of unimpeachable material
tendered by the accused under Section 482
Cr.P.C. proceedings by holding thus:

"29. The issue being examined in
the instant case is the jurisdiction of the
High Court under Section 482 CrPC, if it
chooses to quash the initiation of the
prosecution against an accused at the stage
of issuing process, or at the stage of
committal, or even at the stage of framing
of charges. These are all stages before the
commencement of the actual trial. The
same parameters would naturally be
available for later stages as well. The
power vested in the High Court under
Section 482 CrPC, at the stages referred to
hereinabove, would have far-reaching
consequences inasmuch as it would negate
the
prosecution's/complainant's
case
without
allowing
the
prosecution/complainant to lead evidence.
Such a determination must always be
rendered
with
caution,
care
and
circumspection. To invoke its inherent
jurisdiction under Section 482 CrPC the
High Court has to be fully satisfied that the
material produced by the accused is such
that would lead to the conclusion that
his/their defence is based on sound,
reasonable, and indubitable facts; the
material produced is such as would rule
out and displace the assertions contained
in the charges levelled against the accused;
and the material produced is such as would
clearly reject and overrule the veracity of
the allegations contained in the accusations
levelled by the prosecution/complainant. It
should be sufficient to rule out, reject and
discard the accusations levelled by the
prosecution/complainant,
without
the
necessity of recording any evidence. For
this the material relied upon by the defence
should
not
have
been
refuted,
or
alternatively, cannot be justifiably refuted,
being material of sterling and impeccable
170 INDIAN LAW REPORTS ALLAHABAD SERIES
quality. The material relied upon by the
accused should be such as would persuade
a reasonable person to dismiss and
condemn
the
actual
basis
of
the
accusations as false. In such a situation,
the judicial conscience of the High Court
would persuade it to exercise its power
under Section 482 CrPC to quash such
criminal proceedings, for that would
prevent abuse of process of the court, and
secure the ends of justice.

30.
Based
on
the
factors
canvassed in the foregoing paragraphs, we
would delineate the following steps to
determine the veracity of a prayer for
quashment raised by an accused by
invoking the power vested in the High
Court under Section 482 CrPC."

30. The material in the nature of the
hire-purchase agreement and other related
documents relied upon by the applicants
are of unimpeachable quality and are not
disputed by the complainant/respondent no.
3.

31. The first covenant of the hire
purchase agreement describes the parties to
the agreement as follows:-

(I) Tata Finance Ltd. a Company
incorporated under the Companies Act.
1956, having its Registered Office at Ahura
Centre, Mahakali Caves Road, Andheri(E),
Mumbai (hereinafter called "The Owners",
which
expression
shall
include
their
successors and assigns, where the context
so admits) and the owners are parties to the
first part. The respondent no. 3/complainant
Pradeep Kumar Singh is described as
follows Pradeep Kumar Singh (hereinafter
called the 'Hirer'). Trilokinath the last party
is described as under (hereinafter called the
'Guarantor').

32. The consequence of default in
payment are described in Clause 17 of the
agreement:-

"17. An event of default shall
occur hereunder if the Hirer:-

"(a) fails to pay any of the hire
charges or part thereof or other payment
required hereunder when due and such
failure in the opinion of the Owners,
continues for a period of 14 days after
notice is sent to the Hirer; or"

33. The options available at the
discretion of the owner upon default by the
borrower/hirer are described in Clause 18:-

"18. Upon the occurrence of any
event of default and at any time thereafter,
the Owners shall be entitled to declare all
sums due and to become due hereunder for
the
full
term
of
the
Agrement
as
immediately due and payable and upon the
Hirer failing to make the said payment in
full within 14 days thereof, the Owners
may, at their sole discretion, do any one or
more of the following:

(a) Upon notice to the Hirer
terminate this Agreement.

(b) Demand that the Hirer return
the Vehicle to the Owners at the risk and
expenses of the Hirer in the same condition
as delivered (ordinary wear and tear
excepted), at such location as the Owners
may designate and upon failure of the Hirer
to do so within 14 days from the date of
demand, enter upon premises where the
vehicle is located and take immediate
possession of and remove the same without
liability to the Owners of their Agents for
such entry or for damage to property or
otherwise.

(c) On such terms and conditions
and for such consideration as the Owners
may deem fit and with or without any
6 All. Satish Mishra & Ors. Vs. State of U.P. & Ors.
171
notice to the Hirer sell the vehicle at a
public or private sale, otherwise dispose of,
hold, use, operate, lease to others or keep
idle such Vehicle, all free and clear of any
rights to the Hirer and without any duty to
account to the Hirer for such action or
inaction or for any proceeds in respect
thereof.

(e) Exercise any other right or
remedy which may be available to them
under the applicable law."

34. An arbitration clause is also
provided for resolution of any dispute,
differences or claim arises out of a contract.
Clause 25 is the arbitration clause:

"25. All disputes, differences
and/or claims arising out of these presents
or as to the construction, meaning or effect
hereof or as to the rights and liabilities of
the parties hereunder shall be settled by
Arbitration to be held in Mumbai in
accordance with the provisions of the
Arbitration and Conciliation Ordinance,
1996 or any statutory amendments thereof
or any statute enacted for replacement
thereof and shall be referred to the sole
arbitration of a person to be nominated by
the Owners in the even of death, refusal,
neglect, inability or incapability of the
person so appointed to act as an Arbitrator,
the Owners may appoint a new arbitrator.
The award including interim award/s of the
arbitrator shall be final and binding on all
parties concerned. The arbitrator shall not
give any reason for his award including
interim award/s. The arbitrator may lay
down from time to time the procedure to be
followed by him in conducting arbitration
proceedings and shall conduct arbitration
proceedings
in
such manner
as
he
considers appropriate."

35. The rights interse the parties are
created by the agreement mentioned herein
above. In terms of the agreement the Tata
Finance Company is the absolute owner of
the vehicle at all points in time. The status
of the respondent no. 3 is that of an hirer. In
terms of the agreement, the hirer can
become the owner of the vehicle after he
has paid the entire due amount by way of
principal and interest to the Tata Finance
Company Ltd. A critical feature of the
contract is that the owner (Tata Finance
Company Ltd.) has an irrevocable right to
enter any premises or places where the
vehicle is located and recover possession of
the same in the event of default by the
hirer. The owner of the vehicle shall not be
liable for any criminal or civil action for
any attempt on his part to respossess the
vehicle in the event of a default.

36. The vehicle sales invoice attest
the fact of the delivery to the Hirer by
respondent no.3 by Motor and General
Sales Limited is also an undisputed
document. The vehicle was duly insured by
the New India Assurance Company Ltd.

37. The vehicle sales invoice is
appended as annexure 3 to the application.
The aforesaid document is also not in
dispute.

38. The contractual relationship
between the parties is established beyond
any doubt being duly admitted. The
relationship
between
the
complainant/respondent no. 3, and the
applicants is governed and regulated by the
aforesaid
contract.
The
complainant/respondent no. 3 was a hirer,
under the terms of the agreement and not
the owner. Respondent no. 3 had not
become the owner in terms of the contract.
172 INDIAN LAW REPORTS ALLAHABAD SERIES

39. The vehicle was financed by the
Tata
Finance
Ltd.
The
complainant/respondent no. 3 had not paid
timely installments and had defaulted in the
payment. The details of the default in
payment brought in the record by the
applicant could not be disputed by the
complainant. On the date of seizure of the
vehicle by the Tata Finance Ltd., the
complainant/respondent no. 3 was clearly a
defaulter.

40. The vehicle was seized by the
Tata Finance Ltd., under the clauses of the
contract which enable it to take all
necessary steps to take possession of the
vehicle. The right to resume possession was
legally vested in the Tata Finance Ltd. by
the covenants of the contract. The actions
taken by the applicants/accused to resume
possession of the vehicle was at the
instance of Tata Finance Ltd. On the date
possession was resumed Tata Finance Ltd.
was the undisputed owner of the bus while
the complainant was admittedly a hirer in
default. The action flows entirely from the
contract between the parties and being
consistent with the same, no criminal
liability
can
be
fastened
upon
the
applicant/accused. The dispute is entirely
civil in nature.

41. Finance companies have to take
steps to repossess the financed properties,
in the event of a default in payment of loan.
Such clauses are clearly made part of the
contracts between the hirer and financer.
These rights of the financer are critical to
protect the credibility of the financial
system.

42. The courts have however noticed, that
a number of borrowers adopted novel devices,
to avoid paying the loan installments and
defeating their creditors. One such ingenious
device, is institution of false criminal cases.
Even institution of false criminal cases, triggers
prolonged prosecution of the officials named
therein. This results in the harassment of the
officials of the finance company. Very often the
finance company and the officials succumb to
this black mailing of the defaulting borrowers.
This is no doubt an the abuse of the process of
court by the defaulting borrowers. Such conduct
of defaulting borrowers of instituting false cases
to
defeat
their
creditors,
cannot
be
countenanced by the courts, if the stream of
justice is to remain pure. In such matters, the
courts have to come down with a strong hand as
per law, against the persons who abuse the
process of courts. If any leniency is shown in
these matters or false prosecutions are simply
permitted to take their course, it would not only
destroy the credibility of the judicial process,
but also inflict a mortal blow to the financial
system. The courts have to ensure that the
sanctity of the contract is protected and the
process of the courts is not prone to abuse.

43. In the facts of this case the conduct of
the complainant/respondent no. 3 has been that
of a defaulting borrower who has abused the
process of courts to defeat his creditors.

44. The falsity of the allegations made in
the complaint is apparent. The abduction story
was totally bald and was never established,
even in a primafacie manner before the trial
court. No injuries on the person of the driver
have been established by any corroborative
medical report. The version of grievous assault
on the driver by the accused with buts of rifles
is clearly figment of a fertile and conspiring
imagination. Such exaggerated versions are
regular features in the play book of
unscrupulous, defaulting borrowers.

45. There is another and most critical
aspect of the matter. The complainant while
instituting
the
complaint,
concealed
6 All. Satish Mishra & Ors. Vs. State of U.P. & Ors.
173
material
facts
and
evidences.
The
suppression of these material facts was akin
to assertion of false facts. The complaint
clearly mislead the court. His hands were
not clean.

46.

In
the
instant
case
the
complainant/respondent no. 3 did not bring
the contractual agreement between the
complainant/respondent no. 3 and Tata
Finance Ltd. in the record before the trial
court. The complainant/respondent no. 3
did not reveal his status as that of a hirer
who had got the vehicle financed from the
Tata Finance Ltd. Nor was the default in
payment by the complainant disclosed by
respondent no. 3/complainant before the
trial court.

47.

On
the
contrary,
the
complainant/respondent no. 3 created an
illusion of ownership of the bus before the
courts below. This is evident from a perusal
of the order of the court, which made over
the custody of the vehicle, to the
complainant/respondent no. 3, on the foot
that he was the owner of the vehicle.

48. The act of taking custody of the
bus by the financier was clearly relatable to
a covenant in the contract between the
parties. The action taken in exercise of
contractual powers and obligations cannot
be given a criminal colour to frustrate the
contract and avoid the obligation to repay
the loan. The criminal prosecution set on
foot by concealing such material facts is an
abuse of the process of the court.

49. The cause of action of the
complaint, if any, even as per the case of
the complainant taken on its face value,
took place entirely at Lucknow. Even
according to the complaint no part of the
offence was committed in the territorial
jurisdiction of Varanasi. The learned Court
below at Varanasi exceeded its territorial
jurisdiction by entertaining the complaint in
the instant case. The proceedings are liable
to be set aside on the ground of lack of
territorial jurisdiction alone.

There is good authority to hold
that the learned court lacked territorial
jurisdiction to entertain the complaint in
these facts.

50. In Y. Abraham Ajith and others
Vs Inspector of Police, Chennai and
Another, reported at (2004) 8 SCC 100,
the issue regarding territorial jurisdiction in
regard to a criminal complaint came to be
challenged. The facts of the case as
recorded in Y. Abraham Ajith and others
(supra) were thus:

"When the matter stood thus,
the appellants filed an application under
Section 482 of the Code before the High
Court alleging that the Magistrate
concerned has no jurisdiction even to
entertain the complaint even if the
allegations
contained
therein
are
accepted in toto. According to them, no
part of the cause of action arose within
the jurisdiction of the court concerned.
The complaint itself disclosed that after
15-4-1997, the respondent left Nagercoil
and came to Chennai and was staying
there. All the allegations which are per
se
without
any
basis
took
place
according
to
the
complainant
at
Nagercoil, and therefore, the courts at
Chennai did not have the jurisdiction to
deal with the matter. It was further
submitted that earlier a complaint was
lodged by the complainant before the
police
officials
concerned
having
jurisdiction; but after inquiry no action
was deemed necessary.
174 INDIAN LAW REPORTS ALLAHABAD SERIES

51. Interpreting Section 177 Cr.P.C. as
regards territorial jurisdiction of a criminal
court the Hon'ble Supreme Court held thus:

"12. The crucial question is
whether any part of the cause of action
arose within the jurisdiction of the court
concerned. In terms of Section 177 of the
Code, it is the place where the offence was
committed. In essence it is the cause of
action for initiation of the proceedings
against the accused.

13.
While
in
civil
cases,
normally the expression "cause of
action" is used, in criminal cases as
stated in Section 177 of the Code,
reference is to the local jurisdiction
where the offence is committed. These
variations in etymological expression
do
not
really
make
the
position
different. The expression "cause of
action" is, therefore, not a stranger to
criminal cases.

14. It is settled law that cause
of action consists of a bundle of facts,
which give cause to enforce the legal
inquiry for redress in a court of law. In
other words, it is a bundle of facts,
which taken with the law applicable to
them, gives the allegedly affected party
a right to claim relief against the
opponent. It must include some act done
by the latter since in the absence of
such an act no cause of action would
possibly accrue or would arise.

15. The expression "cause of action"
has acquired a judicially settled meaning. In the
restricted sense cause of action means the
circumstances forming the infraction of the
right or the immediate occasion for the action.
In the wider sense, it means the necessary
conditions for the maintenance of the
proceeding including not only the alleged
infraction, but also the infraction coupled with
the right itself. Compendiously, the expression
means every fact, which it would be necessary
for the complainant to prove, if traversed, in
order to support his right or grievance to the
judgment of the court. Every fact, which is
necessary to be proved, as distinguished from
every piece of evidence, which is necessary to
prove such fact, comprises in "cause of action".

16. The expression "cause of action"
has sometimes been employed to convey the
restricted idea of facts or circumstances which
constitute either the infringement or the basis of
a right and no more. In a wider and more
comprehensive sense, it has been used to denote
the whole bundle of material facts.

17.