Patna High Court – Orders
Kuldeep Singh vs State Of Bihar And Anr on 5 May, 2026
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.9811 of 2018
Arising Out of PS. Case No.-63 Year-2017 Thana- ROHTAS COMPLAINT CASE District-
Rohtas
======================================================
Kuldeep Singh, S/o Shri Prayag Raj Singh, aged about 34 Years, Area
manager- Soft Bucket, Collection, Sasaram Branch, Mahindra and Mahindra
Financial Services Ltd. Mangla Bhawan, Opposite Prakash Petrol Pump, G.T.
Road, Sasaram.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Sanjay Dubey, S/o Sri Kant Dubey, R/o Village- Durgapur, P.S.- Indrapuri,
District- Rohtas Bihar.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sheela Sharma, Advocate
Mr. Shivendra Kumar Roy, Advocate
For the Opposite Party/s : Mr. Shantanu Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL ORDER
8 05-05-2026
1. Heard learned counsel for the petitioner as well as
learned APP for the State.
2. The present application has been filed under
Section 482 of the Code of Criminal Procedure, 1973 for
quashing the order dated 09.11.2017 passed by learned
S.D.J.M., Dehri, Rohtas (hereinafter referred to as ‘Magistrate’)
in connection with Complaint Case No.63 of 2017, wherein the
learned Magistrate took cognizance of the offence under Section
379 read with Section 34 of the Indian Penal Code, 1860 against
the present petitioner and two other accused persons.
3. The prosecution case, as emerging from the
Patna High Court CR. MISC. No.9811 of 2018(8) dt.05-05-2026
2/11
complaint petition, is that the brother of the complainant (O.P.
No.2) had obtained a loan from Mahindra & Mahindra Financial
Services Limited for purchase of a tractor, which was being
repaid in instalments. It is alleged that on 29.01.2017, the
accused persons, including the present petitioner, came and took
away the said tractor along with a paddy cutter machine
attached thereto, without any prior notice or lawful authority. It
is further alleged that upon receiving information from the
driver, the complainant (O.P. No.2) and his brother reached the
spot and objected to such taking of the tractor and the cutter
machine, but the accused persons stated that they were acting
under the orders of the company and advised them to settle the
matter with the company. According to the complainant (O.P.
No.2), despite request, the cutter machine was not separated and
both the tractor and cutter machine were taken away. It is further
the case of the complainant (O.P. No.2) that though the tractor
was later released in favour of the complainant’s brother after
payment of certain dues, the cutter machine was not returned. It
is alleged that when the complainant (O.P. No.2) and his brother
approached the accused persons on 14.03.2017 demanding
return of the cutter machine, the accused persons abused them
and informed that the cutter machine had already been sold. On
Patna High Court CR. MISC. No.9811 of 2018(8) dt.05-05-2026
3/11
these allegations, claiming loss of Rs.1,30,500/-, the present
complaint case bearing Complaint Case No.63 of 2017 was
instituted.
4. Upon perusal of the materials available on record
including the complaint petition, solemn affirmation of the
complainant (O.P. No.2) and the statement of witness recorded
during inquiry, the learned Magistrate found a prima facie case
and accordingly took cognizance of the offence punishable
under Section 379 read with Section 34 of the Indian Penal
Code against the three named accused persons including the
petitioner herein vide the impugned order of cognizance dated
09.11.2017. Aggrieved by the said impugned order of
cognizance dated 09.11.2017, the petitioner has preferred this
Criminal Miscellaneous Application to quash the same.
5. Learned counsel for the petitioner submits that the
impugned order of cognizance is wholly unsustainable in the
eyes of law, as the allegations made in the complaint petition,
even if taken at their face value, do not constitute the offence of
theft under Section 379 of the Indian Penal Code. It is submitted
that the subject vehicle (tractor) was admittedly financed by the
employer company of the petitioner and, upon default in
repayment of instalments by the borrower i.e., the brother of the
Patna High Court CR. MISC. No.9811 of 2018(8) dt.05-05-2026
4/11
O.P. No.2, the vehicle was repossessed strictly in terms of the
loan agreement. He further submits that the repossession, being
an exercise of a contractual right, cannot be construed as a
dishonest taking so as to attract the ingredients of theft. Learned
counsel submits that the petitioner, being merely an employee of
the finance company, has been falsely implicated for acts done
in the discharge of his official duties, and no specific overt act
constituting any criminal offence has been attributed to him.
6. Learned counsel for the petitioner further submits
that the entire dispute, at best, arises out of a contractual and
financial transaction between the borrower and the finance
company, and the same is purely civil in nature. He submits that
the continuation of the criminal proceeding is nothing but an
abuse of the process of the Court, instituted with an ulterior
motive to avoid repayment of the outstanding dues. It is also
submitted that the vehicle (tractor), along with the cutter
machine, was duly released to the borrower upon payment of
certain amounts, which is evident from the documents on
record, and therefore, the allegation of misappropriation is
wholly false and untenable. He lastly submits that the present
case falls within the well-settled parameters for quashing of
criminal proceedings and the impugned order deserves to be set
Patna High Court CR. MISC. No.9811 of 2018(8) dt.05-05-2026
5/11
aside.
7. Per contra, learned APP for the State submits that
the learned Magistate has rightly taken cognizance after
considering the materials available on record, including the
complaint petition and the statements recorded during inquiry.
He submits that the allegations disclose prima facie commission
of offence, and at this stage, meticulous examination of defence
documents or disputed facts is not warranted.
8. Despite sufficient opportunities having been
granted, no one appears on behalf of O.P. No. 2 to contest the
present application. Accordingly, this Court proceeds to consider
and decide the matter in absence of representation on behalf of
O.P. No. 2 on the basis of materials available on record.
9. I have heard learned counsel for the petitioner and
learned APP for the State and have carefully perused the
materials available on record, including the complaint petition,
the impugned order of cognizance, and the documents brought
on record by the petitioner.
10. Before adverting to the facts and circumstances of
the case, it would be apposite to consider the scope of
interference by this Court in exercise of its inherent jurisdiction
under Section 482 of the Code of Criminal Procedure. It is well
Patna High Court CR. MISC. No.9811 of 2018(8) dt.05-05-2026
6/11
settled that the power of quashing is to be exercised sparingly
and with circumspection, and only in cases where the
allegations made in the complaint, even if taken at their face
value and accepted in entirety, do not disclose the commission
of any offence or where the continuation of the criminal
proceeding would amount to an abuse of the process of the
Court. At the same time, where the dispute is predominantly
civil in nature arising out of contractual obligations and has
been given a colour of criminality, the High Court would be
justified in exercising its inherent powers to prevent misuse of
the judicial process and to secure the ends of justice.
11. Upon careful consideration of the materials on
record, it emerges that the subject vehicle (tractor) was financed
by the company of which the petitioner is an employee, and the
borrower (brother of O.P. No.2/complainant) had admittedly
defaulted in repayment of instalments. The repossession of the
tractor was carried out in pursuance of the terms of the loan
agreement, which authorized the financier to take possession of
the hypothecated asset in case of default. It further appears from
the documents brought on record that prior information
regarding the repossession was duly given to the concerned
police station, which lends support to the contention that the act
Patna High Court CR. MISC. No.9811 of 2018(8) dt.05-05-2026
7/11
was not clandestine or illegal, but undertaken in a structured and
lawful manner. In such circumstances, the element of “dishonest
intention,” which is sine qua non for constituting an offence
under Section 379 of the Indian Penal Code, is conspicuously
absent.
12. It is also significant to note that the materials on
record, including the release documents, indicate that upon
payment of certain dues, the tractor as well as the cutter
machine were released in favour of the borrower, and an
acknowledgment to that effect was obtained. This clearly belies
the allegation of misappropriation or wrongful retention of the
cutter machine. Furthermore, the complaint itself has been
instituted not by the borrower, who is the principal party to the
loan transaction, but by his brother, thereby raising a serious
doubt regarding the locus and veracity of the allegations. The
cumulative effect of these facts indicates that the dispute
essentially arises out of enforcement of contractual obligations,
devoid of any criminal intent on the part of the petitioner, and
has been given a colour of criminality for oblique reasons.
13. The Hon’ble Supreme Court has time and again
reiterated that where a financier exercises its rights under a hire-
purchase or loan agreement to repossess the financed asset upon
Patna High Court CR. MISC. No.9811 of 2018(8) dt.05-05-2026
8/11
default, such act, being traceable to a contractual right and
obligation between the parties, does not give rise to any
presumption of dishonest intention so as to attract criminal
liability. In such circumstances, the resumption of possession by
the financier or its agents, in accordance with the terms of the
agreement, cannot be construed as an act done with a guilty
mind so as to constitute an offence of theft. The Hon’ble Apex
Court in K.A. Mathai @ Babu and Anr. v. Kora Bibbikutty and
Anr., reported in (1996) 7 SCC 212 has observed as under:
“3. It is more than clear that the
hire-purchase agreement with the financier
was entered into much prior in time,
whereafter the agreement of sale between A-
2 and the complainant took place, and which
was subject to the rights of the financier. It is
even otherwise understandable that A-2
could not have passed a better title of the
bus to the complainant than that she had
acquired for herself under the hire-purchase
agreement. Though we do not have the
advantage of reading the hire-purchase
agreement, but as normally drawn it would
have contained the clause that in the event of
the failure to make payment of instalment/s
the financier had the right to resume
possession of the vehicle. Since the
financier’s agreement with A-2 contained
that clause of resumption of possession, that
has to be read, if not specifically provided in
the agreement, as part of the sale agreement
between A-2 and the complainant. It is, in
these circumstances, the financier took
possession of the bus from the complainant
with the aid of the appellants. It cannot thus
be said that the appellants, in any way, had
Patna High Court CR. MISC. No.9811 of 2018(8) dt.05-05-2026
9/11committed the offence of theft and that too,
with the requisite mens rea and requisite
dishonest intention. The assertion of rights
and obligations, accruing to the appellants
under the aforesaid two agreements, wiped
out any dishonest pretence in that regard
from which it could be inferred that they had
done so with a guilty intention……………”
14. Moreover, the Hon’ble Apex Court in Charanjit
Singh Chadha and Ors. v. Sudhir Mehra, reported in (2001) 7
SCC 417, has observed as herein under:
“13. But in the instant case, the
owner repossessing the vehicle delivered to
the hirer under the hire-purchase agreement
will not amount to theft as the vital element
of “dishonest intention” is lacking. The
element of “dishonest intention” which is an
essential element to constitute the offence of
theft cannot be attributed to a person
exercising his right under an agreement
entered into between the parties as he may
not have an intention of causing wrongful
gain or to cause wrongful loss to the hirer. It
is appropriate to note that the term
“dishonestly” is defined under Section 24
IPC as follows:
“24. ‘Dishonestly’.–Whoever does
anything with the intention of causing
wrongful gain to one person or wrongful loss
to another person, is said to do that thing
‘dishonestly’.”
15. At this juncture, it would be apposite to refer to
the principles laid down by the Hon’ble Apex Court in State of
Haryana and Ors. v. Bhajan Lal and Ors., reported in 1992
Supp (1) SCC 335, wherein illustrative categories were carved
Patna High Court CR. MISC. No.9811 of 2018(8) dt.05-05-2026
10/11
out for exercise of inherent powers for quashing of criminal
proceedings. In the facts of the present case, this Court finds
that the case of the petitioner squarely falls within the categories
where the allegations made in the complaint, even if taken at
their face value, do not constitute any offence, and further where
the criminal proceeding appears to have been instituted with an
ulterior motive to exert pressure arising out of a purely civil
dispute. The materials on record clearly indicate that the act
complained of was done in pursuance of a contractual right,
with prior intimation to the police, and without any dishonest
intention, and that the alleged property has already been
released to the borrower. Thus, applying the ratio of the
aforesaid judgment to the present case, this Court is of the
considered view that continuation of the criminal proceeding
against the petitioner would amount to abuse of the process of
the Court and, therefore, the impugned order of cognizance is fit
to be quashed.
16. Accordingly, the impugned order dated
09.11.2017 passed by the learned S.D.J.M., Dehri, Rohtas in
connection with Complaint Case No.63 of 2017, wherein the
cognizance of the offence under Section 379 read with Section
34 of the Indian Penal Code, 1860 has been taken, qua the
Patna High Court CR. MISC. No.9811 of 2018(8) dt.05-05-2026
11/11
petitioner is hereby set aside.
17. Resultantly, the entire criminal proceeding arising
out of the aforesaid Complaint Case No.63 of 2017, so far as it
relates to the present petitioner, is quashed.
18. The present Criminal Miscellaneous Application,
accordingly, stands allowed.
19. Let a copy of this order be transmitted forthwith to
the Court concerned for information and necessary compliance.
(Sunil Dutta Mishra, J)
Ritik/-
U T
