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Gauhati High Court · body

2007 DIGILAW 386 (GAU)

Binod Kumar Tharad Agarwalla v. Pranab Das

2007-05-31

I.A.ANSARI

body2007
JUDGMENT I.A. Ansari, J. 1. By making this application under Section 482 Code of Criminal Procedure the Petitioner has prayed for setting aside and quashing the entire proceeding of Complaint Case No. 60072004 including the order, dated 23.03.2004, passed therein by the learned Sub-Divisional Judicial Magistrate (II), Guwahati, whereby cognizance of offence under Section 379 IPC has been taken, summons have been directed to be issued to the Petitioner as accused and search warrant for recovery of the Truck Bearing Registration No. AS-25 A-7429. 2. I have heard Mr. G.N. Sahewalla, learned Senior counsel, for the accused-Petitioner. None has appeared on behalf of the complainant-opposite party. 3. Before coming to the merit of this revision, it is necessary to take note of the material facts, which have given rise to this revision. The Petitioner and the opposite party herein had entered into a Hire Purchase Agreement, whereunder the Truck Bearing Registration No. AS-25A-7429 was purchased with Sunita Finance Company as the financer, the Petitioner herein being the proprietor of Sunita Finance Company. On the failure of the opposite party to pay his dues, the financer took over the possession of the said Vehicle on 03-03-2004. Reacting to the act of repossession of the Vehicle by the Petitioner, the opposite party lodged a complaint in the learned Court below alleging, inter alia, that the Petitioner had, without giving any prior notice, forcibly taken away the truck from the National Highway. Based on this complaint, cognizance of offence under Section 379 Code of Criminal Procedure was taken against the Petitioner and issuance of summons and also search warrant, as indicated hereinbefore, were ordered. It was at this stage that the present Petitioner came to this Court with the present application made under Section 482 Code of Criminal Procedure. 4. What, now, needs to be noted is that there is no dispute that the said vehicle was purchased by the complainant-opposite party on the basis of a Hire Purchase Agreement with the accused -Petitioner as the financer. In this view of the matter, it is clear that when there was admittedly default in payment of requisite installments, the accused-Petitioner was, in terms of Clause-5 of the said Agreement, entitled to recover possession of the vehicle. In this view of the matter, it is clear that when there was admittedly default in payment of requisite installments, the accused-Petitioner was, in terms of Clause-5 of the said Agreement, entitled to recover possession of the vehicle. In exercise of the right so reserved under the said Agreement, when the accused-Petitioner took over the possession of the vehicle, his possession cannot be treated to be dishonest. Requisite mens rea cannot be said to have been present in the act of taking away of the vehicle by the Petitioner. Commission of an offence under Section 379 IPC by the accused-Petitioner could not have, therefore, been held to have been ever prima facie made out by the complainant-opposite party. 5. In Trilok Singh and Ors. v. Satya Deo Tripathi AIR 1979 SC 850 , the Apex Court has held that in bona fide exercise of his rights reserved under the Hire Purchase Agreement, when a financer takes over possession of the vehicle, which the financer has financed, then, no offence can be said to have been committed by the financer, for, the financer has merely exercised his right under the Hire Purchase Agreement and the dispute, if any, following re-possession of the vehicle by the financer, in such a case, is a civil dispute. 6. In K.A. Mathai @ Babu and Anr. v. Kora Bibbikutty and Anr. reported in : (1996) 7 SCC 212 , the Apex Court has held that the act of taking over possession of a vehicle by a financer, under a Hire Purchase Agreement, is an assertion of the financer's right and in such circumstances, no offence of theft can be said to have been committed by the financer, when he takes over possession of the vehicle on default of payment of dues. The relevant observations made in K.A. Mathai @ Babu (supra) read thus: 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 installment/s the financer had the right to resume possession of the vehicle. Since the financer'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. Since the financer'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 financer 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 committed 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. In this view of the matter, we think that the High Court was in error in upsetting the well-considered judgment of the Court of Session. 7. In view of what have been discussed and pointed out above, it is clear that the impugned order, dated 23.03.2004, whereby cognizance of offence under Section 379 IPC has been taken by the learned Court below is wholly illegal and if such an order is allowed to survive, it will cause serious miscarriage of justice. 8. In the result and for the reasons discussed above, this revision succeeds. The impugned order, dated 23.03.2004, and all further proceeding of the Complaint Case No. 60072004 shall accordingly stand set aside and quashed. 9. In view of the fact that the impugned order and also the proceedings of Complaint Case No. 60072004 already stand set aside, the police shall release the said vehicle, which has been taken into custody by the police pursuant to the said search warrant. 10. With the above observations and directions, this revision shall stand disposed of. 11. Send back the LCR.