1 2025:CGHC:4417-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 3101 of 2024 1. Ashutosh Mishra S/o Shri Ganesh Prasad Mishra Aged About 44 Years R/o Gaurav Path, In Front Of Shani Mandir, Balodabazar, Police Station Kotwali Balodabazar, District- Balodabzar- Bhatapara, Chhattisgarh. 2. Khileshwar Jaiswal S/o Shri Bharat Lal Jaiswal Aged About 40 Years R/o Main Road, Bajrang Chowk, Ward No.11, Balodabazar, Police Station Kotwali Balodabazar, District- Balodabazar- Bhatapara, Chhattisgarh. 3. Rajendra Kumar Tiwari S/o Shri Gopichand Tiwari Aged About 44 Years R/o House No. 35, Ward No.1 Parshuram Ward, Bhatapara, Police Station - Bhatapara (City), District- Balodabazar-Bhatapara, Chhattisgarh. 4. Satyam Shukla S/o Shri Pramod Shukla Aged About 29 Years Ward No.07, Behind Pital Karkhana, Rajiv Gandhi Ward, Balodabazar, Police Station Kotwali Balodabazar, District- Balodabazar-Bhatapara, Chhattisgarh. 5. Avinash Jaiswal S/o Bimlesh Jaiswal Aged About 38 Years Vaishnav Colony, Balodabazar, District- Balodabazar-Bhatapara, Chhattisgarh. ... Petitioner(s) versus BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.01.25 11:34:55 +0530 2 1. State of Chhattisgarh Through Police Station Baloda, Balodabazar, District- Balodabazar-Bhatapara, Chhattisgarh. 2. Akash Sahu S/o Shri Ramkumar Sahu Aged About 26 Years R/o Village Raseda, Police Station- Radesa, Tehsil- Balodabazar, District- Balodabazardd Bhataparad, Chhattisgarh. ...Respondent(s) For Petitioners : Mr. Abhishek Vinod Deshmukh, Advocate. For Respondent/State : Mr. Sakib Ahmed, Panel Lawyer. For Respondent No. 2 : Mr. Dhiraj Kumar Wankhede, Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Order on Board Per Ramesh Sinha , Chief Justice 24 . 01 .202 5 1. Heard Mr. Abhishek Vinod Deshmukh, learned counsel for the petitioners. Also heard Mr. Sakib Ahmed, learned Panel Lawyer, appearing for respondent No. 1/State and Mr. Dhiraj Kumar Wankhede, learned counsel, appearing for respondent No. 2/complainant. 2. The present petition has been filed by the petitioners with the following prayers: “(i) quash the FIR bearing No. 411 of 2024 registered at P.S. Baloda, District Balodabazar Bhatapara registered against the petitioners; and 3 (ii) quash the order dated 19.06.2024, passed by the learned Chief Judicial Magistrate, in Case No. 121 of 2024; (iii) Any other order that this Hon’ble Court may deem fit in the interest of justice may kindly be quashed, in the interest of justice.” 3. Brief facts of the case are that on 05.01.2024 at about 6.00 p.m. the co-accused Ashutosh who is ofÏcer of Cholamandalam went to the house of complainant/respondent No. 2 to ascertain the location of vehicle, at that time the complainant was at Ambikapur, therefore, he told his father over mobile phone to inform the location, upon arriving at the specified location the co-accused Ashutosh was informed that he would need to pay Rs. 7.50 lakhs to avoid the seizure of vehicles. The complainant responded that he had already paid Rs. 82,000/- on 02.01.2024, then only Rs. 56,000/- was requested, with the assurance that the remaining amount would be paid within 05 days. Complainant assured that Rs.58,000/- would be paid within 24 hours as he was working in Ambikapur, at that place before seizure Manak Thakur the father of complainant and Golu Jaiswal agreed to pay the above amount, co- accused Ashutosh was found abusing and threatening with complainant on phone accusing him on being orally involved in politics and alleging that as a congress man he betrayed his people by supporting BJP member, Ashutosh also abused and misbehaved with father of complainant. It was communicated by the complainant that vehicles specifically CG-22-P-7350 and CG-22-P-7400 were not in operable condition despite this Ashutosh insisted on forceful seizure later that night 4 at 10.00 p.m., both vehicles were unlawfully seized using a tractor and tow chain crane without any prior notice or panchnama. Thereafter, the respondent No. 2 made a complaint to the Police. The Police then investigated the matter and found that no offence is made out. Being aggrieved therefrom, the respondent No. 2 had filed an application before the Court of learned Chief Judicial Magistrate, which then without affording an opportunity to the petitioners had directed for registration of offence to P.S. Baloda, District Baloda Bazar and consequently, FIR bearing No. 411 of 2024 has been registered against the petitioners for the offences punishble under Sections 379 and 34 of the IPC. 4. Learned counsel for the petitioners submits that the petitioners are ofÏcers of the Finance Company, namely, Cholamandalam Investment and Finance Company Private Limited. The petitioner No. 1 is Area Manager, petitioner No. 2 is Area Sales Manager, petitioner No. 3 is Area Collection Manager, petitioner No. 4 is Branch Collection Manager and petitioner No. 5 is Collection Team Leader, respectively of Cholamandalam Investment and Finance Company Private Limited. Pursuant to the registration of FIR, the petitioners applied for Anticipatory Bail before the learned Session Court, which was rejected by the learned Session Court vide order dated 02.07.2024. Thereafter, the petitioners filed Anticipatory Bail before this Court, which was granted vide orders dated 10.07.2024 and 24.07.2024 in MCRCA No. 753 of 2024 and MCRCA No. 818 of 2024 respectively. 5. It is further submitted by the learned counsel for the petitioners that the respondent No. 2 on 18.04.2019 and 17.12.2020 availed financial services for purchase of trucks bearing registration numbers CG 22 B 5 7350 and CG 22 P 7400 for an amount of Rs. 32,75,152/- and 231,09,321/- and for the same finance agreements were executed between the respondent No. 2 and Cholamandalam Investment and Finance Company Limited. However, the respondent No. 2, had failed to repay the same in timely manner by not paying the monthly installments for long period. As such, several demand notices were sent to the respondent No. 2 vide letters dated 07.07.2023 & 12.07.2023, however, despite the same, the respondent No. 2 failed to pay the loan amount and as such in accordance with the loan agreement, the vehicle was taken into possession. He also submits that before taking the possession as well as after taking the possession, Cholamanlam Investment and Finance Company had duly intimated, the local Police on 05.01.2024 and 06.01.2024, respectively. Further, while taking possession, the signature of the signatory of the yard, from where the vehicle was seized was also taken. 6. Learned counsel for the petitioners states that after taking the possession, the respondent No. 2 was also issued a pre-sale letter, on 09.01.2024, finally calling upon the respondent No. 2 to make the payment of due amount to get the vehicle released in full satisfaction within a period of 10 days, however, the respondent No. 2, did not responded to the same. He further states pursuant to registration of the FIR, the Station-in-Charge of P.S. City Kotwali had sought certain information and documents from the Cholamandalam investment and finance company on 29.01.2024, which was duly provided by the Cholamandalam investment and finance company. After taking the possession of the vehicle, the Cholamandalam Investment and Finance 6 Company on 12.01.2024 had filed a complaint before the Superintendent of Police, Baloda Bazar, stating that respondent No. 2 and other co- borrowers, have fraudulently sold/taken away the Dala, Tyre, Battery and other parts of the vehicle. He would submit that even on 06.01.2024, an amount of Rs. 2,48,717/- and Rs. 3,64,288/ was due upon the borrower, which fact has been concealed by the respondent No. 2 in its complaint. 7. It is further contended by the learned counsel for the petitioners that in a similar case vide order dated 02.05.2024 passed in CRMP No. 818 of 2018, this Court while quashing the FIR under Section 379 of the IPC against the OfÏcer of a Finance Company had observed as under: “8. Section 379 of the IPC defines the punishment for theft i.e. whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with ine, or with both. Section 378 of the IPC denies theft as, "whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property to such taking, is said to commit theft. 9. In the case in hand, the respondent No. 2 and his brother have been adequately intimated through various notices by the Company with regard to repayment of the outstanding dues but the respondent No. 2 did not pay any heed to it. Under the terms and conditions of the agreement, the petitioner, who was 7 the Collection Head of the Company, had taken repossession of the vehicles which was duly intimated by him to the concerned Police Station also. Hence, there is no element of theft involved in the said act and as such, registration of an FIR against the petitioner for the offence under Section 379 of the IPC, is not justified. 10. In the case in hand, the respondent No. 2 himself is a defaulter as he has not paid various dues outstanding against him. Even otherwise, if any real theft of his vehicles would have occurred, he has not explained as to why he took 1 12 months for registration of the FIR which goes to suggest that the respondent No. 2 was well aware of the fact that his trucks were repossessed by the Company. 11. In view of the above, this Court is of the view that this is a fit case where this Court should exercise its powers under Section 482 of the Cr.P.C. and quash the FIR in question. Accordingly, the FIR bearing Crime No. Crime No. 33301001180032 / 2018 registered on 12.03.2018 at Police Station Arjunda, District Balod, for the ofence punishable under Section 379 of the IPC, stands quashed.” 8. Learned counsel for the petitioners submits that in view of the aforementioned facts and law, the impugned FIR registered against the 8 petitioners at P.S. City Kotwali, District - Balodabazar Bhatapara, may kindly be quashed. Hence, this petition. 9. On the other hand, learned State counsel and learned counsel, appearing for respondent No. 2 oppose the prayer made by the learned counsel for the petitioner. 10. Learned counsel, appearing for respondent No. 2 would submit that on 05.01.2024, when the respondent No. 2 was travelling to Ambikapur, he received a call from his family that some ofÏcer of Cholamandalam Finance Company along with musclemen/hooligans came to his house and enquired about the tip trailer and thereafter, the respondent No. 2 came to know that the tip trailer was looted by the persons who came and visited to his house and for that, father of the respondent No. 2 made a Police report before the Police Station, but without any enquiry, the case was closed with a memo of Section 155 of the CrPC. He further submits that when the respondent No. 2 returned from Ambikapur, he enquired and seen the photograph and videos and directly rushed to the Station House OfÏcer and requested them to register FIR for cognizable offence because his tip trailer was looted by the employee of Cholamandalam Finance Company with the help of hooligans and musclemen. 11. It is further submitted by the learned counsel, appearing for respondent No. 2 that when no cognizance was taken by the Police OfÏcer, the respondent No. 2 has no other choice, but to move a complaint under Section 156(3) of the CrPC before the Chief Judicial Magistrate, Baloda Bazaar-Bhatapara and accordingly, on 15.01.2024, he filed complaint and the Magistrate has ordered for enquiry and asked the 9 Police to submit report before 25.01.2024. he also submits that in compliance of the order of the learned trial Court, the SHO submitted enquiry report on 02.03.2024 before the JMFC, Baloda Bazaar. During investigation the Police have recorded the statements of the respondent No. 2 and other persons. The respondent No. 2 had also made complaint to the Inspector General of Police, Raipur on 07.03.2024. 12. Learned counsel, appearing for respondent No. 2 further contended that on 19.06.2024, the learned JMFC after considering the nature of complaint and the report submitted by the SHO, ordered to register offence against the accused persons i.e. petitioners herein. He also contended that in the complaint, the respondent No. 2 has properly narrated the incident that the tip trailer was looted in presence and under the direction of the ofÏcers of Cholamandalam Finance Company i.e., petitioners, but it is unfortunate on the part of Police who just registered the offence under Section 379 read with Section 34 of the IPC, because it is not a case of theft, rather it is a case of loot. When the SHO has not acted upon as per the direction of the JMFC, the respondent No. 2 made a detailed complaint before the Superintendent of Police, Baloda Bazaar regarding conduct of the Police OfÏcer which is pending before the Superintendent of Police. He also submits that it is unfortunate on the part of Cholamandalam Finance Company that till date they have not provided any statement or notice that how balance amount is still remained and it is also unfortunate that the respondent No. 2 has taken finance of about Rs.32 lakhs and out of Rs. 32 lakhs, he had already paid Rs. 30 lakhs and for that, two vehicles which were looted were also sold to some other persons, it is nothing, but the highhandedness on the part of the private 10 Company. During enquiry, the respondent No. 2 also made available all the records which prove that the ofÏcers of Cholamandalam have called the respondent No. 2 in mid night and harassed him and his family members and finally, looted the tip trailer. 13. It is also stated by the learned counsel, appearing for respondent No. 2 that during investigation, on the order of the JMFC, the concerned Police OfÏcer has asked eight questions to Cholamandalam Finance Company and still they have not replied to those questions put by the concerned Police OfÏcer and it is also admitted fact that no procedure was followed by any of the company employees and thus, the act of the company and its employees i.e., petitioners is nothing, but violation of the guidelines framed by the Hon'ble Supreme Court in the case of ICICI Bank Ltd. v. Prakash Kaur & Others, reported in (2007) 2 SCC 711. The Hon'ble Supreme Court in case of Citicorp Maruti Finance Ltd. v. S. Vijayalaxmi, reported in (2012) 1 SCC 1, reiterating the views rendered in ICIC Bank (supra), concerning the illegal dispossession of Mortgaged Properties, has held as under: “26. Since during the pendency of the special leave petitions before this Court, the appellant had complied with the orders of the District Forum and the National Commission had already set aside the punitive damages imposed by the State Commission, the reliefs prayed for on behalf of the appellant had been rendered ineffective and the submissions were, therefore, channelled towards the question of whether the fora below were right in holding that the vehicles had been illegally and/or wrongfully recovered by use of force from the loanees. The aforesaid question has 11 since been settled by several decisions of this Court and in particular in the decision rendered in ICICI Bank Ltd. v. Prakash Kaur [(2007) 2 SCC 711]. It is not, therefore, necessary for us to go into the said question all over again and we reiterate the earlier view taken that even in case of mortgaged goods subject to hire- purchase agreements, the recovery process has to be in accordance with law and the recovery process referred to in the agreements also contemplates such recovery to be effected by due process of law and not by use of force.” 14. Learned counsel for respondent No. 2 further submits that there is a clear direction of the learned trial Court to just take cognizance on the complaint of the respondent No. 2, but the concerned Police OfÏcer has not registered the case which actually happened on the date of incident and registered offence only under Section 379 of the IPC in order to give benefit to the accused persons. 15. We have heard learned counsel for the parties and perused the materials available on record including the impugned FIR. 16. From perusal of the return filed by the respondent No. 2, it is evident that the respondent No. 2 has made so many requests oral as well as written to Cholamandalam Finance Company to provide the statement of account as well as balance of the loan of respondent No. 2. It is admitted fact that the respondent No. 2 is a good customer and he paid all his EMIs in time, but due to the unfortunate incident of “CORONA” pandemic, there was 2-3 installments which became default and instead of providing the facility of waiving as per the Government rule, Cholamandalam Finance Company has restructured the loan account of the respondent No. 2 on 12 20.07.2021 making false promise that there is a Government scheme and his loan will be settled, but instead of settling the loan, the said Finance Company committed a fraud and restructured the loan amount. Further, as per the demand of Cholamandalam Finance Company, the entire loan of respondent No. 2 was in proper time and he was one of the good customers of Cholamandalam, but due to sudden accident of one of his trucks, the respondent No. 2 requested the officer of Cholamandalam to provide a breathing time to pay the default of two installments and it was promised and as per the promise, the respondent No. 2 also paid one installment of one truck in the year 2023 and on 02.01.2024, one of the installments of second truck was also paid by the respondent No. 2 which reflects from the statement. Copy of the statement provided by Cholamandalam Finance Company relating to payment of above two installments is being filed herewith as Annexure R-2/2. Further, instead of issuing a show-cause legal notice or to act according to law, the petitioners had looted both the tip trailer from the premises of the respondent No. 2. Thereafter, respondent No. 2 prayed for a registration of FIR before the Police OfÏcials under Section 392, 395, 394, 506 and 294 of the IPC, but the concerned Police OfÏcer rejected the same and closed the case without conducting any enquiry holding that it is a matter of civil dispute. Thereafter, respondent No. 2 approached the learned Judicial Magistrate First Class and filed criminal complaint under Section 156(3) of the Cr.P.C. on 15.01.2024 and the learned Magistrate has ordered for enquiry and asked the Police to submit report before 25.01.2024. In compliance of the order of the learned Magistrate, the SHO submitted enquiry report on 02.03.2024. 13 17. On 19.06.2024, the learned Magistrate after considering the nature of complaint and the report submitted by the SHO, ordered to register offence against the petitioners. It is relevant to mention here that in the complaint, the respondent No. 2 has properly narrated the incident that the tip trailer was looted in presence and under the direction of the ofÏcers/petitioners of Cholamandalam Finance Company, but the Police ofÏcials just registered the offence under Section 379 read with Section 34 of the IPC, because it is not a case of theft, rather it is a case of loot. When the SHO has not acted upon as per the direction of the learned Magistrate, the respondent No. 2 made a detailed complaint before the Superintendent of Police, Balodabazaar regarding conduct of the SHO, namely, Ajay Jha which is pending before the Superintendent of Police. 18. Thereafter, the respondent No. 2 approached this Court by way of filing writ petition bearing WPCR No. 285 of 2024 for registration of FIR against the petitioners under Sections 392, 395, 394, 506 and 294 of the IPC instead of Section 379 of the IPC and this Court vide order dated 08.08.2024 dismissed the said petition with a liberty to the respondent No.2 to approach the learned trial Court at the appropriate stage and lead evidence for the commission of the offence. 19. 19. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge- sheet should be exercised sparingly and only in exceptional cases and Courts should not ordinarily interfere with the investigations of cognizable offences. However, where the allegations made in the FIR or the complaint even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the 14 accused, the FIR or the charge-sheet may be quashed in exercise of powers under Article 226 or inherent powers under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘BNSS’) or Section 482 of the Cr.P.C. 20. In Neharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, reported in (2021) SCC OnLine SC 315, the Hon’ble Apex Court has observed that the power of quashing should be exercised sparingly with circumspection in the rarest of rare cases. While examining an F.I.R./complaint, quashing of which is sought, the Court cannot inquire about the reliability, genuineness, or otherwise of the allegations made in the F.I.R./complaint. The power under Section 528 of the BNSS or Section 482 of the Cr.P.C. is very wide, but conferment of wide power requires the Court to be cautious. The Hon’ble Apex Court has emphasized that though the Court has the power to quash the F.I.R. in suitable cases, the Court, when it exercises power under Section 528 of the BNSS or Section 482 Cr.P.C., only has to consider whether or not the allegations of F.I.R. disclose the commission of a cognizable offence and is not required to consider the case on merit. 21. Keeping in view the aforesaid law and considering the submissions advanced by the learned counsel for the parties, we are of the considered view that the submissions raised by learned counsel for petitioners relate to the questions of fact and thus, cannot be examined by this Court in proceedings under Section 528 of the BNSS or Section 482 of the Cr.P.C. The appreciation of evidence or the reliability of the allegations cannot be examined at this stage. 15 22. In State of Orissa v. Saroj Kumar Sahoo, reported in (2005) 13 SCC 540, it has been held that probabilities of the prosecution version cannot be analysed at this stage. Likewise, the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus: (SCCp. 550, para 11) “11......It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with.” 23. From the above stated case laws it is apparent that the above stated contentions raised by the learned counsel for the petitioners cannot be examined by this Court. The adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under Section 528 of the BNSS or Section 482 of the Cr.P.C. In view of the material on record, it cannot be held that the impugned criminal proceedings are manifestly attended with malafide and maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge. FIR or criminal proceedings can be quashed only in accordance with parameters laid down by Hon'ble Apex Court in catena of decisions. 24. From the perusal of impugned FIR, it is apparent that the petitioners have threatened and abused the family members of the respondent No. 2 16 and taken the possession of vehicle. 25. In the instant case, the FIR lodged by the complainant/respondent No. 2 has to be investigated by the Police and has to be brought to its logical end and the complainant/respondent No. 2 and the witnesses have to be thoroughly interrogated by the Police to substantiate their case against the petitioners and to quash the impugned FIR at it inception does not seem to be proper taking into account the fact that the Police did not register the FIR for the actual offences for which the incident took place on the complaint of the respondent No. 2 as he himself has stated that it is not a case of theft for which the FIR has been registered against the petitioners by the Police under Section 379 of the IPC, but for the offences under Sections 392, 395, 394, 506 and 294 of the IPC which deliberately was not registered by the Police. 26. Thus, the present petition does not fall in any of such category, wherein, this Court can exercise jurisdiction under Section 528 of the BNSS or under Section 482 of the Cr.P.C. to quash the impugned FIR. Hence, no ground exists for quashing of the FIR. 27. Accordingly, the present CRMP is dismissed. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Brijmohan