Hafiz Samim Alam v. State Of Bihar — 1995 DIGILAW 544 (PAT)

Judgment S.K.CHATTOPADHYAYA, J. 1. Through this petition under Section 182, Cr. P. C. the petitioner has impugned the order dated 19-12-1994, by reason of which the learned Chief Justicial Magistrate, Hazaribagh has released the vehicle (Metador) bearing registration No. BR 13L-2894 in favour of the opposite party No. 2. 2. In order to appreciate the contention advanced by the parties, some facts are necessary. One Md. Nasim lodged an F.I.R. on 22-1-1994 alleging, inter alia, that he purchased the aforesaid vehicle from the opposite party No. 2, Rabi Kant Gopalka, proprietor of Chhotanagpur Finance Corporation, Ramgarh, district Hazaribag. The earst-while owner of the vehicle was Samim Alam, the petitioner and as he cold not deposit the instalments to the financer, the said vehicle was seized by the financer from the said Samim Alam. Informant purchased the vehicle after that. When the vehicle was carrying some passengers, three persons boarded the vehicle, informed the driver and Khalasi that the said vehicle was a stolen one and as such, by saying so they took control of the Metador and asked the passengers to leave the vehicle. Ultimately, they drove away the vehicle. The informant further alleged that carst-while owner Samim Alam alongwith other persons stolen the Metador alongwith its driver and Khalasi. On the basis of the aforesaid F.I.R., G.R. Case No. 186/94 was registered. 3. During pendency of the trial, the petitioner as well as the opposite party No. 2, the Financer, filed a petition before the learned Magistrate for release of the said Metador. The claim of the petitioner was that as he is the registered owner of the vehicle and he deposited the same to the police station, the same should be released in his favour. On 14-12-1994 the Financer, through its agent, filed a petition ft r release of the vehicle in its favour on the ground that the said vehicle was sold to the petitioner on the basis of some agreement and as the petitioner did not pay the instalment as required under the agreement, the financer is entitled for release of the vehicle in its favour. 4. The learned Magistrate called for a report from the police and the report dated 9-9-1994 reveals that the allegation against the petitioner was found true and so the police officer recommended release of the vehicle in favour of the financer. 4. The learned Magistrate called for a report from the police and the report dated 9-9-1994 reveals that the allegation against the petitioner was found true and so the police officer recommended release of the vehicle in favour of the financer. The said report further shows that the hire purchaser has to pay back the dues of the financer in 24 instalments @ Rs. 5,667 but ho paid only Rs. 59,859 in total and then surrendered the vehicle. The financer took possession of the same. Being satisfied, the learned Chief Judicial Magistrate rel ased the vehicle in favour of the financer on executing surety bond of Rs. two lac with two sureties. 5. Mr. Vijay Gopal, learned counsel appearing on behalf of the petitioner has contended that it is an admitted fact that the said Metador stands registered in D.T.O. Office in the name of the petitioner and the opposite party No. 2 has financer the said vehicle. However, the petitioner has paid the total amount to the financer and as such, the release in favour of the opposite party No. 2 is illegal and must be set aside. Secondly, it is contended that the vehicle was neither seized by the police nor the financer rather the petitioner himself deposited the same in the police office. In support of his contention that the vehicle must be released in favour of its registered owner, Mr. Gopal has relied on the decisions in the case of Chandra Shekhar Jha v. State of Bihar, reported in 1983 BLJ and V. Kariyappa v. Shreekantaiah, reported in 1980 Cr LJ 422. 6. Mr. S. N. Lal, learned counsel appearing on behalf of the opposite party No. 2, strongly refuting the contention of Mr. Gopal, contended that admittedly this opposite party is the owner of vehicle and the same was let out on hire purchase basis to the petitioner. An agreement of hire purchase was executed on 18-5-1990 and the petitioner agreed to pay monthly instalment @ Rs. 5,667 from 20th June, 1990. The payment of all due has been strongly controverted by the opposite party No. 2 in his counter-affidavit and it is asserted that out of 24 instalment only 12 instalments have been paid and that too in very irregular manner by the petitioner. Referring to Annexure A, the hire purchase agreement, Mr. 5,667 from 20th June, 1990. The payment of all due has been strongly controverted by the opposite party No. 2 in his counter-affidavit and it is asserted that out of 24 instalment only 12 instalments have been paid and that too in very irregular manner by the petitioner. Referring to Annexure A, the hire purchase agreement, Mr. Lai has submitted that the agreement itself shows that the owner of the vehicle is the financer and the petitioner is the hirer. His contention is that in view of the agreement, even if the vehicle has been registered in the name of the petitioner, it cannot be said that he is the owner of the same inasmuch as in such type of agreement unless the agreed amount is paid in full to the financer, the hirer cannot become the owner of the vehicle. Referring to Clauses 14, 15 and 16 of the agreement Mr. Lal has submitted that the owner is entitled to recover possession of the vehicle if there is defult in payment of any hire money or breach of any of the conditions of the agreement. As because the petitioner defaulted in paying instalments, the opposite party No. 2 took possession of the vehicle and on the direction of Ramgarh police he produced the said vehicle on 17-10-1994 before Ramgarh police in connection with Ramgarh P. S. Case No. 40/94. The production-cum-seizure list by the Ramgarh police has been annexed as Annexure B. 7. Distinguishing the decisions relied by Mr. Qopal, it is contended that those decisions have no application in the facts and circumstances of the present case. On the other hand, he urged that the present case is fully covered by the decision in the case of M/s. Chandra Brothers v. State of Bihar, repotted in 1980 BLJR 689 : 1980 BLJ 516 and in the case of Ph. Arunachalam v. State of Orissa, reported in 1990 East CrC 195. 8. In the case of Chandra Shekhar Jha (supra), the facts were different. In that case the petitioner took loan from the Bank for purchase of a vehicle. There was an agreement for re-payment of loan by instalments and the vehicle was hypothicated to the bank under the said agreement. When the petitioner failed to pay the instalments, at the request of the bank, the police seized the vehicle. In that case the petitioner took loan from the Bank for purchase of a vehicle. There was an agreement for re-payment of loan by instalments and the vehicle was hypothicated to the bank under the said agreement. When the petitioner failed to pay the instalments, at the request of the bank, the police seized the vehicle. The owner of the vehicle contended before the High Court that as because he only took loan from the Bank for purchase of the vehilce and when the vehicle was hypothicated to the Bank, on failure of the owner to pay the instalment cannot give a right to the Baak to get possession of the vehicle. On the other hand, the argument on behalf of the Bank; was that as because the owner failed to pay the instalments, the Bank is entitled to recover the vehicle from the owner. Under these circumstances a learned Single Judge of this Court while noticing Sections 17, 19(c) and 20 of the Hire Purchase Act, 1972 held as follows - "This provision, however, does not manifestly apply to the instant case as the petitioner is not holding the bus in question under any Hire Purchase agreement with the Bank nor the Bank is the owner of the bus. The owner of the Bus being the petitioner, and the position of the Bank being only that of a creditor which has advanced certain loan to the petitioner for the purchase of the Bus to be repaid by the petitioner to the Bank in certain instalments, and to secure the repayment of the loan the bus stands hypothecated to the Bank under an agreement. Therefore, if there has been any breach of the agreement tbe Bank may seek his remedy in a Civil Court but the Bus which was seized under the provisions of Section 129-A of the Motor Vehicles Act from the possession of the petitioner who happens to be owner with all the papers concerning the Bus standing in his name, cannot be released by Criminal Court in favour of the Bank in preference to the petitioner. Similarly, the case of U. Kariyappa v. Sreekantaiah, reported in 1980 Cr LJ 422, is totally on a different footing. Similarly, the case of U. Kariyappa v. Sreekantaiah, reported in 1980 Cr LJ 422, is totally on a different footing. In that case the vehicle was seized by the police on the request of the Motor Vehicles Department from its registered power and when he filed a petition for entering custody of the vehicle, the respondent filed application contending, inter alia, that the vehicle should be released in his favour on the ground that he has purchased the same from the owner of the vehicle under an agreement. The Chief Judicial Magistrate directed releasing of the vehicle in favour of the registered owner, which order was reversed in revision. When the matter was brought to the High Court, the High Court, after considering the facts and circumstances of the case, quashed the order of the revisional court holding that the Chief Judicial Magistrate was right in releasing the vehicle in favour of the registered owner. 9 In my considered opinion, none of the aforesaid oases is applicable to the facts and circumstances of the present case. 10. On the contrary, this Court in the case of Chandra Brothers v. State of Bihar, reported in 1980 BLJ 516 , almost under similar circumstances, inter alia, has held that "such cases have been become rather common these days and in most of the cases there are always default and that the financer in such cases, under the terms and conditions of the agreement, has a right to seize the vehicle otherwise such clause in the agreement will be meaningless and to great disadvantage to the financer, who invests heavy amount and later is duped by the hirers. After paying a small sum of money, they become the owners of the vehicles and play the same earn money. Bven if they do not pay the instalments, they ply tbe vehicle without raising any dispute and taking recourse to the clause of the agreement that gives right to the parties to refer the matter to the arbitrator. In such situation, under the terms and conditions of the agreement, the financer can always seize the vehicle. "Seize" according to Chambers Twentieth Century Dictionary, means "to take by force, to take possession of, to apprehend. The act of seizure will always be an unpleasant act and will be resisted by the person, who runs the vehicle. Some force may also be necessary in this regard. "Seize" according to Chambers Twentieth Century Dictionary, means "to take by force, to take possession of, to apprehend. The act of seizure will always be an unpleasant act and will be resisted by the person, who runs the vehicle. Some force may also be necessary in this regard. Such actions on the part of the financer will be completely covered by the terms and conditions of the agreement and cnnnot be said to be a criminal act. Opposite party No. 2 entered into the agreement and cannot be allowed to challenge the seizure by the financer after a default has been committed by bim. Release of vehicles in favour of such persons will amount to putting premium on their fraud. They will run the vehicle merrily and the financer will be forced to go for arbitration or to court of law. In meantime, the defaulter will get all the advantages to the vehicle being in his possession. It is the duty of a Court to protect the interest of such aggrieved persons and in this case from the facts, it is absolutely clear that payment were not made to the financer and the petition-Company was really the aggrieved party." 11. The aforesaid view of this Court finds support from a decision of the Orissa High Court in the case of Ph. Arunachalam v. State of Orissa, reported in 1990 Bast CrC 105. The Orissa High Court, noticing a decision of the Supreme Court in the case of M/s. K. L. Johar and Company v. The Deputy Commercial Tax Officer, reported in AIR 196S SC 1082, has held that in seizure of vehicle the financer should be given possession of it particularly when the hirer has defaulted in paying instalments. 12. In the present case, the learned Magistrate having satisfied from the police report that the petitioner had failed to pay the dues to the financer has passed the impugned order releasing the vehicle in favour of the opposite party No. 2. 13. Having regard to the facts and circumstances of the present case and the decisions discussed above. I am of the opinion, that the learned Chief Judicial Magistrate has rightly released the vehicle in favour of the opposite party No. 2 and the said order does not call for any interference by this Court. 14. 13. Having regard to the facts and circumstances of the present case and the decisions discussed above. I am of the opinion, that the learned Chief Judicial Magistrate has rightly released the vehicle in favour of the opposite party No. 2 and the said order does not call for any interference by this Court. 14. Another aspect of the matter is to be kept in mind that the petitioner without challenging the order of the learned Magistrate in revision either before the Sessions Judge or before this Court has filed this petition under Section 482, Cr. P. C. It is now well-settled that remedy provided under tho Code only must be availed of, if such remedy is available to aggrieved person. In my view, this petition under Section 482, Cr. P. C. on this ground also cannot be entertained by this Court. 15. In the result. I find no merit in this application and the same is dismissed.