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2010 DIGILAW 726 (KER)

Shibu Varghese v. Sheeba Jijo

2010-09-23

SASIDHARAN NAMBIAR

body2010
ORDER : Sasidharan Nambiar, J. Petitioners accused 5 and 6 in Calendar Case 190 of 2009 on the file of Judicial First Class Magistrate's Court, Muvattupuzha taken cognizance for the offences under sections 394, 294(b), 354 and 427 and 109 of Indian Penal Code filed this petition under section 482 of Code of Criminal Procedure to quash the cognizance taken as against them contending that first petitioner being the Assistant Manager and sixth accused being the Manager of M/s. Kotak Mahindra Prime Ltd. had only authorised the fourth accused to re-posses the vehicle based on a hire purchase agreement entered into by the husband of the first respondent and even if the allegations in Annexure I final report is accepted, an offence under Section 394 of Indian Penal Code is hot attracted as against the petitioners. Petitioners also contended that the other offences are not also attracted against them as even according to prosecution, they have only entrusted the third respondent to re-possess the vehicle. Petitioners also contended that subsequently the entire disputes with the first respondent and her husband were settled amicably and consequent to the settlement, first respondent has no grievance against petitioners and therefore in the interest of justice, the cognizance taken is to be quashed. 2. First respondent appeared through a counsel and filed a joint statement with the petitioners stating that subsequently all disputes between the first respondent, petitioners and the husband of the first respondent and the Finance Company were settled amicably out of Court and third respondent has no subsisting grievance against petitioners and in such circumstances the case as against petitioners is to be quashed. 3. Learned counsel appearing for the petitioners first respondent and learned Public Prosecutor were heard. 4. Learned counsel appearing for the petitioners relied on the decision of the Apex Court in Charanjit Singh Chadha v. Sudhir Mehra 2001 KHC 915 : AIR 2001 SC 3721 : 2001 (3) KLT SN 78 : 2001 (7) SCC 417 : 2001 (2) KLJ 609 : 2001 CriLJ 4255. which was followed by this Court in Criminal Miscellaneous Case No. 1448 of 2008 and submitted that as the allegation is that the vehicle which was the subject matter of a hire purchase agreement was re-possessed by the Finance Company and petitioners were respectively the Assistant Manager and Manager of the Finance Company an offence under Section 394 is not attracted. Learned counsel argued that when the very prosecution case is that the other offences were committed by the other accused and the only allegation is that petitioners authorised the fourth accused to re-possess the vehicle, even if the fourth accused or his agents committed any offences while re-possessing the vehicle, petitioners cannot be prosecuted and therefore continuation of proceedings against the petitioners is only an abuse of process of Court. Petitioners contended that in any case first respondent has already settled all the disputes with the petitioners in respect of the other offences and in such circumstances it is not in the interest of justice to continue the prosecution as held by the Apex Court in Madan Mohan Abbot v. State of Punjab 2008 (2) KHC 589 : 2008 (3) KLT 19 : 2008 (1) KLD 823 : 2008 (4) SCC 582 : AIR 2008 SC 1969 : 2008 (4) SCALE 159 : 2008 CriLJ 2243. 5. Learned Public Prosecutor submitted that the offences alleged are not purely personal in nature and the Manager and the Assistant Manager of the Finance Company is not legally entitled to take law into their hands or authorise fourth accused to take law into their hands and do criminal acts and therefore the offences alleged cannot be quashed basing on the principles laid down in Madan Mohan Abbot’s case (supra). Learned Public Prosecutor submitted that the cognizance taken is perfectly legal and cannot be quashed. 6. It is admitted by the prosecution that the husband of the first respondent had entered into a hire purchase agreement with M/s. Kotak Mahindra Prime Ltd. (Annexure 2 is the agreement) in respect of Innova Car KL-17E-994. The husband of the first respondent had to the failure to pay the hire charges, the Finance Company had taken steps to enforce the relevant clause in the agreement which enables them to re-possess the vehicle. Petitioners in their capacity as Assistant Manager and Manager authorised the fourth accused to re-possess the vehicle. Question is whether such authorisation to re-possess or attempt to re-possess would attract an offence under Section 394 of Indian Penal Code. 7. The Honourable Supreme Court in K.A. Mathai v. Kora Bibbikutty 1996 (7) SCC 212 . Petitioners in their capacity as Assistant Manager and Manager authorised the fourth accused to re-possess the vehicle. Question is whether such authorisation to re-possess or attempt to re-possess would attract an offence under Section 394 of Indian Penal Code. 7. The Honourable Supreme Court in K.A. Mathai v. Kora Bibbikutty 1996 (7) SCC 212 . considered the question whether taking re-possession of a bus by the Finance Company, would amount to commission of an offence under Section 379 read with Section 114 of Indian Penal Code. That was a case where the hirer paid only part of the value of the vehicle and defaulted to pay the hire charges and consequently the vehicle was taken possession by the Financier and based on re-possession, it was alleged that Finance Company had committed the offence under Section 379 of Indian Penal Code. Their Lordships held that though they 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 instalments, the Financier had the right to resume possession of the vehicle and since financiers agreement contained that clause of resumption of possession, that is to be read, if not specifically provided in the agreement, as part of the sale agreement and in such circumstances when the financier took possession of the bus from the complainant with the aid of the accused, it will not attract any offence, as it was not done with requisite mens rea and requisite dishonest intention. 8. The Honourable Supreme Court in Charanjit Singh Chadha’s case (supra) following the decision in Mathai’s case (supra) held: "The hire-purchase agreement in law is an executory contract of sale and confers no right in rem on hirer until the conditions for transfer of the property to him have been fulfilled. Therefore, the re-possession of goods as per the term of the agreement may not amount to any criminal offence. The agreement (Annexure P1) specifically gave authority to the appellants to re-possess the vehicle and their agents have been given the right to enter any property or building wherein the motor vehicle was likely to be kept. Therefore, the re-possession of goods as per the term of the agreement may not amount to any criminal offence. The agreement (Annexure P1) specifically gave authority to the appellants to re-possess the vehicle and their agents have been given the right to enter any property or building wherein the motor vehicle was likely to be kept. Under the hire purchase agreement, the appellants have continued to be the owners of the vehicle, and even if the entire allegations against them are taken as true, no offence was made out against them." That exactly is the position herein. When admittedly husband of the first respondent did not pay the hire charges as provided under the hire purchase agreement, the ownership of the vehicle vests with the Finance Company. Therefore re-possessing the vehicle by recourse to the clause in the hire purchase agreement will not amount to an offence under Section 394 of Indian Penal Code. 9. Then the question is regarding the offences under Section 294(b), 427 and 109 of Indian Penal Code. Even according to the prosecution, petitioners only authorised the fourth accused only to re-possess the vehicle. Petitioners cannot be vicariously held liable for the offences under Section 294(b), 354 and 427 of Indian Penal Code, if any committed by fourth. accused or his agents. Moreover, the joint statement of the first respondent establishes that she and her husband have settled all the disputes with the petitioners. As held by the Apex Court in Madan Mohan Abbot v. State of Punjab 2008 (2) KHC 589 : 2008 (3) KLT 19 : 2008 (1) KLD 823 : 2008 (4)SCC 582 : AIR 2008 SC 1969 : 2008 (4) SCALE 159 : 2008 CriLJ 2243. when the offences alleged against the petitioners are purely personal in nature as against the first respondent, it is not in the interest of justice to continue the prosecution. Petition is allowed. Cognizance taken in CC 190 of 2009 on the file of Judicial First Class Magistrate Court, Muvattupuzha as against the petitioners accused 5 and 6 is quashed.