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Karnataka High Court · body

2010 DIGILAW 91 (KAR)

Ravindra v. Baburao

2010-01-21

ARALI NAGARAJ

body2010
JUDGMENT Arali Nagaraj, J : Criminal Revision Petition No. 462/2005 and Criminal Appeal No. 1665/2004, both have arisen from the same Judgment and Order dated 25/11/2004 passed in Sessions Case No. 146/2002 by the learned Presiding Officer, Fast Track Court-I, Belgaum (hereinafter referred to as Trial Court for short). Therefore they are disposed of by this common judgment. 2. Criminal Revision Petition No. 462/2005 is filed by the complainant in the said case seeking enhancement of sentence imposed by the Trial Court on accused No.1 to 6 therein. Criminal Appeal No. 1665/2004 is filed by accused Nos. 1 to 6 in the said case challenging the legality and correctness of the impugned Judgment and Order convicting them for the offence U/Sec. 395 of IPC. 3. Heard the arguments of Sri. M.V. Devaraju, the learned Counsel for the accused-appellant Nos. 1 to 6 in Crl. A. No. 1665/2004 and respondents in the said Criminal Revision Petition. Sri. Mallikarjun S. Masali, the learned Counsel for revision petitioner-complainant in Crl. R.P. No. 462/2005 and respondents in the said appeal. Also heard the arguments of Sri. P.H. Gotkhindi, the learned HCGP representing the respondent State in the revision petition and also in the appeal. Perused the entire original records obtained from the Trial Court. 4) Stated in brief the case of the complainant as alleged in his complaint (Ex.P.8) dated 13/7/1995 filed U/Sec. 200 of Cr.P.C. Is as under: a) The complainant has been the registered owner of the Lorry bearing No. KA-2/342 which was purchased by him by availing loan of n,94,000/- from The Urban Co-operative Bank, Khanapur, under an Agreement of Hypothecation. Accused No. 1 has been its Chairman, accused No.2 to 4 have been the Directors, accused No.5 has been the Manager, of the said bank. b) Some of the Directors of the said bank, along with other persons, had illegally locked the cabin of the said Lorry in the month of September 1994 so that it could not be used by the complainant. Therefore the complainant had filed his Private Complaint No. 53/1994 in the Court of JMFC, Khanapur, on the basis of which Crime No. 9/1995 of Khanapur P.S. came to be registered. Thereafter the said Lorry was released in favour of the complainant by the said Court. The complainant unlocked the said vehicle, after obtaining an order dated 6/5/1995 from the said Court. Thereafter the said Lorry was released in favour of the complainant by the said Court. The complainant unlocked the said vehicle, after obtaining an order dated 6/5/1995 from the said Court. c) in the meantime the said bank filed a petition U/Sec. 70 of Karnataka Co-operative Societies Act against the complainant. The Assistant Registrar, Co-operative Societies, Belgaum, dismissed the said petition of the bank order dated 26/5/1995 passed in ABN. 1587/94-95. d) On 6/7/1995 at about 04-00 p.m. accused Nos. 1 to 5, with the help and assistance of accused No.6 PSI, came to the residence of the complainant as Lokuli village in Khanapur tal uk, illegally trespassed into the said house in the absence of the complainant. The, complainant's wife (PW.2 Smt. Kiran) was present in the house at that time and no other male member was present there. e) After committing the trespass into the house of the complainant, the accused No.1 abused the complainant's wife saying: 'Hi Gadi nimma mani mund heng nindrutte nodtivi, halkat bosadi magana'. The accused Nos. 2 to 6 threatened the complainant's wife with dire consequences and compelled her to give them the keys of the said Lorry. Since the said accused put her in constant fear coercing her, she handed over them the keys of the said Lorry and then the accused took the said Lorry by towing it to another vehicle bearing No. MEL-5189. All the said accused had come to the residence of the complainant in two Cars bearing registration Nos. KA-22/1174 and MEH-4545. D The complainant came to know of the above said fact through his wife after he returned to his village on 7/7/1995. Then he brought the said incident to the notice of the Superindentdent of Police, Belgaum; since the police of Khanapur P.S. refused to entertain the complaint of the complainant in respect of the said incident. Therefore the complainant filed the said complaint before the Magistrate in respect of the said incident, g) Since Saturday and Sunday following the date of said incident were holidays, he could not file the said complaint immediately after the incident. h) The accused Nos. 1 to 6 took the said Lorry forcibly from the lawful custody of the complainant without any authority and thereby committed the offences punishable U/Secs. 379,448, 411 r/w Sec. 34 of IPC. 5. h) The accused Nos. 1 to 6 took the said Lorry forcibly from the lawful custody of the complainant without any authority and thereby committed the offences punishable U/Secs. 379,448, 411 r/w Sec. 34 of IPC. 5. On the basis of the said complaint and the other material produced on record by the complainant, the Trial Court framed charge against all the accused Nos. 1 to 6 for the offence punishable U/Sec. 395 of IPC and tried them for the same. The Trial Court, on appreciation of the oral evidence ofPWs.1 to PW.5, the documents at Exs.P.1 to P.10, found all the accused Nos. 1 to 6 guilty of the offence punishable U/Sec.395 of IPC and therefore, by its impugned Judgment and Order, convicted them for the same and sentenced them to undergo rigorous imprisonment fora period of five years and to pay fine of Rs. 3,000/- each with default sentence of simple imprisonment for a further period of three months. 6. Sri. N.I. Kodolli, the learned Counsel for the appellants-accused. strongly contended that, the averments in the complaint Ex.P.8 and the oral evidence ofPW.2, the wife of the complainant, from whose possession the said lorry is said to have been forcibly taken by the accused, and the evidence of PWs. 3 to 5 the eye witnesses to the said incident of forcible taking of the said lorry by the accused do not make out a case of dacoity or robbery as defined U/Secs. 391 and 390 of IPC and therefore the Trial Court was not justified in convicting the accused for the offence U/Sec. 395 of IPC. 7. He further submitted that, even if it is accepted that the said Lorry was taken forcibly by the accused, from the possession of PW.2 by virtue. of Hire Purchase Agreement, the accused Nos. 1 to 4, being the office bearers of the said bank, accused No.5, being its manager, were entitled to take possession of the said lorry on the ground that the complainant, being the hirer of it, committed default in making payment of installments and therefore taking possession of the said vehicle by accused Nos. 1 to 5 with the assistance of accused No.6, the Police Officer, cannot be said to amount to either theft or extortion, as ingredient of Sec. 390 of IPC and hence all the accused Nos. 1 to 5 with the assistance of accused No.6, the Police Officer, cannot be said to amount to either theft or extortion, as ingredient of Sec. 390 of IPC and hence all the accused Nos. 1 to 6 deserve an order of acquittal of the charge levelled against them. 8. Per contra Sri. Mallikarjun S. Masali, the learned Counsel for the complainant, strongly contended that, though the bank, which lent money to the complainant, was entitled to take possession of the said lorry by virtue of Hypothecation Agreement on the ground that the' complainant committed default in making payment of installments, it was not authorised to take its possession forcibly without the consent of the complainant borrower and without resorting to any legal steps such as valid seizure of the said Lorry and therefore the act of forcible taking of the possession of the lorry with the assistance of accused No.6 Police Officer, certainly constitutes the offence of robbery and, since the robbery came to be committed by more than five persons, the Trial Court was justified in convicting all the accused Nos.1 to 6 for the offence U/Sec.395 of IPC and therefore the impugned Judgment and Order of conviction does not call for any interference in this appeal. 9. in order to prove the incident of forcible taking of the said Lorry by the accused as alleged in the complaint, the prosecution has placed reliance on the evidence of PW.2 Smt. Kiran the wife of the complainant Ravindra Patil and PWs. 3 to 5 respectively, Krishna, Smt. Tejaswini and Nagesh who are said to have witnessed the incident on forcible taking of the vehicle by the accused from the possession of PW.2. 10) PW.2 Smt. Kiran has stated in her evidence that on 6/7/1995 at about 4-00 p.m. all the accused Nos. 1 to 6 came in two Ambassador Cars along with a Truck, stopped the said vehicles in front of her residence and then they all entered into her house and asked her to give them keys of the said Lorry. She has further deposed that though she told the accused that her husband was not in station and no male person was there in the house at that time, and therefore they should come after the arrival of her husband, the accused Nos. She has further deposed that though she told the accused that her husband was not in station and no male person was there in the house at that time, and therefore they should come after the arrival of her husband, the accused Nos. 1 to 5 started shouting and threatening her demanding keys of the said Lorry from her, saying that the said Lorry belonged to them and then the accused No.6 the PSI threatened her saying that if she were not to hand over the keys of the said Lorry, she would be put in the police lockup and therefore being afraid of all the accused, she handed over the keys of the said Lorry to the accused and then, though they tried to start the said Lorry it did not start and therefore they took it by towing to another Lorry which was brought to the said place by the accused. 11. PWs. 3 to 5 who are neighbours of the complainant, corroborating the above evidence of PW.2, the wife of the complainant, have stated in their evidence that, on the said date and time accused Nos. 1 to 4 being the office bearers of the said bank and accused No.5 its manager and also accused No.6 PSI, all came to the house of the complainant and at that time the complainant was not present there and his wife Smt. Kiran (PW.2) was there and all the said accused took the keys of the said Lorry forcibly from PW.2 by threatening her and took away the Lorry which was parked in front of her house by towing it to another Lorry which was brought by the accused to the said place. 12. On careful reading of the averments in the complaint and the evidence of PW.2 Smt. Kiran the wife of the complainant, it could be seen that, her evidence is quite consistent with theosaid averments. Further, the evidence of PWs. 3 to 5, of whom PWs 3 and 5 are the neighbours of the complainant, have supported the entire case of the complainant as averred in his complaint and also as deposed by the PW.2 Smt. Kiran. 13. Further, the evidence of PWs. 3 to 5, of whom PWs 3 and 5 are the neighbours of the complainant, have supported the entire case of the complainant as averred in his complaint and also as deposed by the PW.2 Smt. Kiran. 13. in order to hold the accused guilty of the offence U/Sec.395 of IPC the prosecution has to establish that the accused committed the act of dacoity as defined U/Sec.391 of IPC which provides that, 'when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or littempt, amount to five or more, every person so committing, attempting or aiding, is said to commit 'dacoity'. Therefore it has to be established by the prosecution that the act of the accused as alleged by the complainant falls within the definition of dacoity as defined U/Sec. 391 of IPC. In other words, it is to be established by the prosecution that the accused herein, being more than five in number, conjointly committed 'Robbery'. 14. Now I have to refer to the definition of robbery. Sec. 390 which defines 'robbery' says that, in all robbery there is either theft or extortion. It further provides that 'theft is 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of wrongful restraint.' it further provides that, 'extortion is 'robbery' if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted'. 15. From the above definition of 'robbery'. It is quite clear that there must be either 'theft' or 'extortion' in the act committed by the accused. 16. 15. From the above definition of 'robbery'. It is quite clear that there must be either 'theft' or 'extortion' in the act committed by the accused. 16. Sec.378 of IPC defines 'theft' as, "whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft". Further, 'extortion' is defined U/Sec. 383 of IPC as,' "whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits 'extortion". 17. On careful reading of the above evidence of PWs. 2 to 5 it is clear that, it is not the say of PW.2 or any of PWs.3 to 5 that either while obtaining the keys of the said Lorry from PW.2 or while taking away it by towing to another vehicle, any of the six accused attempted to cause to PW.2, death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restrairit. Further, the evidence of PWs. 2 to 5 does not also disclose that either while obtaining the keys of the said lorry from PW.2 or while taking away the lorry, any of the six accused intentionally put PW.2 in fear of any injury to her and thereby induced her to give them the keys of the said Lorry. What is deposed by PW.2 is that, accused No.6, the PSI, threatened her saying that if she were not to give them keys, she would be put in the police lockup. This being so, the said act of the accused does not attract the definition of 'extortion' as defined U/Sec.383 of IPC. Therefore it is clear that the above evidence does not satisfy the ingredients of the definition of robbery. Therefore I am of the considered opinion that the Trial Court was not justified in convicting the accused for the offence U/Sec.395 of IPC. 18. Having come to the conclusion that the above acts proved to have' been committed by the accused Nos. Therefore I am of the considered opinion that the Trial Court was not justified in convicting the accused for the offence U/Sec.395 of IPC. 18. Having come to the conclusion that the above acts proved to have' been committed by the accused Nos. 1 to 6 did not constitute either the offence of dacoity or that of robbery or that of extortion as defined respectively U/Secs. 391, 390 and 383 of IPC, I have now to examine whether the S1lid acts constitute an offence of theft as defined U/Sec. 378 of IPC. It is found established that the accused forcibly took the keys of the said Lorry from PW.2, the wife of the complainant, and then forcibly took to their possession the said lorry by moving it from the said place by towing it to another vehicle. Therefore it is clear that taking of the possession of the said lorry by the accused without the consent of either the complainant, the hirer of it, or PW.2, the wife of the complainant, has been est3;blished by the prosecution beyond reasonable doubt. 19. in order to constitute the offence of theft, such act of taking of possession of the said Lorry by the accused without the consent of the complainant or his wife should be proved to have been done by the accused with 'dishonest intention'. The learned Counsel for the appellants-accused, placing strong reliance on the decision of Division Bench of this Court in the case of Sri Ram Transport and Finance Co. Ltd., Vs. Khaishiullakhan reported in ILR 1993 Karnataka 61 submitted that, since the bank had authority to take the possession of the vehicle under the Agreement of Hypothecation on the ground that the complainant borrower committed default in making payment of the installments and the fact that the borrower committed such default is not in dispute, taking of the possession of the said lorry by accused Nos. 1 to 5 being the office bearers and manager of the said bank, with the assistance of accused No.6 Police Officer cannot be said to be with dishonest intention as defined U1Sec. 24 of IPC and therefore even the offence of theft as defined U/Sec. 378 of IPC could not be made out against the accused Nos. 1 to 6. 20. 1 to 6. 20. in the said case before the Division Bench of this Court, the question, which arose for consideration was 'whether it is the financier or the hirer who is entitled to the interim custody of the vehicle U/Sec. 451 of Cr.P.C.' While considering the said question, the Bench considered the provisions of Secs. 379, 24 and 25 of IPC. 21. The facts of the said case were: "There was an Agreement of Hire Purchase between the Transport Finance Company and the respondent borrower. The financier seized the vehicle in question in exercise of his right to seize the vehicle under the Agreement on the ground that the borrower committed default in making payment of the installments. The' borrower filed complaint against the financier alleging that the financier committed theft of the said vehicle punishable U/Sec. 379 of IPC. On the basis of the said complaint a crime was registered against the financier and the said vehicle came to be produced before the Court. The financier, as well as the borrower, both claimed the interim custody of the said vehicle". Therefore the said question arose. While answering the said question Their Lordships observed at para No. 11 as under: Para 11. The respondent-hirer complained to the jurisdictional Magistrate's Court that some one had committed theft of the vehicle in question. The financier intimated that it was he who had seized the vehicle in the exercise of his right to seize it on the hirer committing default in payment of installments. Presently in both the cases that the financier seized the vehicle does not appear to be in controversy and it is how 'B' final report came to be filed by the Investigating Officer in the case concerning Cr.P. No. 110/92. In order to take cognizance of the case there must be material to show that the person who took possession of the vehicle or seized the vehicle committed "theft" of it constituting an offence under the provisions of the Indian Penal Code. "Theft" is defined under Section 378 IPC as follows: "Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft". "Theft" is defined under Section 378 IPC as follows: "Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft". The word "dishonestly" is defined under Section 24 of the Penal Code thus: "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". Again under Section 23 of the Code "Wrongful gain" is defined as the gain, by unlawful means, of property to which the person gaining is not legally entitled. "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. "Gaining wrongfully" and "Losing wrongfully" are defined under the same Section 23 as follows: "A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such a person is wrongfully deprived of property". "If we consider the act of seizure by the financier in accordance with the terms of the hire-purchase agreement it becomes abundantly clear that mens rea is totally absent in the person seizing the vehicle and as by mutual agreement the right has been given to the financier to seize the vehicle it does not amount to taking possession of the vehicle "dishonestly", because such an act does not fall under the category of cases in which the person seizing gains possession wrongfully nor the hirer loses possession wrongfully so as to make such act of seizure an offence falling under Section 379 IPC. In other words the financier would be entitled to possession of the vehicle under the agreement on the happening of an event stipulated in the agreement. Application of this yardstick is necessary to determine whether the seizure by the financier was with an intention to cause' wrongful loss to the hirer and wrongful gain to himself. The hirer by his conduct in cases of this nature becomes disentitled to the possession of the vehicle. Application of this yardstick is necessary to determine whether the seizure by the financier was with an intention to cause' wrongful loss to the hirer and wrongful gain to himself. The hirer by his conduct in cases of this nature becomes disentitled to the possession of the vehicle. We however add that the same course need not be adopted by criminal Courts in all cases where the rival claims are by the hirer or by the financier irrespective of the facts of a particular case. In rendering this Decision we have taken into consideration only cases where the vehicle is seized by a financier on the hirer committing default in payment of installments stipulated. In cases where such is not the situation, who is entitled to possession shall be decided by the Courts keeping in view facts of each case and the basis of the claim made. For the reasons aforesaid we allow Criminal Petition No. 110/ 92, set aside the order of the learned Magistrate impugned and direct delivery of the vehicle to the custody of the financier petitioner. Criminal Petition No. 447/92 however is dismissed as the Trial Court was justified in directing custody of the vehicle to be given to the financier in that case." 22) The learned Counsel for the appellants-accused has also placed his strong reliance on the decision of Hon'ble Supreme Court in the case of Charanjit Singh Chadha and Others Vs. Sudhir Mehra reported in 2002(1) MHLJ 401 . The facts in the said case were: "The hirer had obtained the motor vehicle under the Hire Purchase Agreement. He had committed default in paying the instalments of balance consideration. The Hire Purchase Agreement provided for re-possession of the vehicle by the owner financier in the event of default by the hirer. Therefore the financier took possession of the vehicle in question from the motor mechanic to whom it was given for repairs. The hirer of the said vehicle filed complaint against the financier for the offences U/Secs. 379, 406 and 420 of IPC. The said complaint was sought to be quashed before the High Court by filing a petition U/Sec. 482 of Cr.P.C. The High Court declined to quash the proceedings. Therefore the mater was taken before the Hon'ble Supreme Court". On those facts, the Hon'ble Supreme Court observed at para Nos. 11 to 16 of its judgment as under: Para 11. The said complaint was sought to be quashed before the High Court by filing a petition U/Sec. 482 of Cr.P.C. The High Court declined to quash the proceedings. Therefore the mater was taken before the Hon'ble Supreme Court". On those facts, the Hon'ble Supreme Court observed at para Nos. 11 to 16 of its judgment as under: Para 11. The whole case put forward by the respondent complainant is to be appreciated in view of the stringent terms incorporated in the agreement. If the hirer himself has committed default by not paying the installments and under agreement the appellants have taken repossession of the vehicle, the respondent cannot have any grievance. The respondent cannot be permitted to say that the owner of the vehicle. has committed theft of the vehicle or criminal breach of trust or cheating or criminal conspiracy as alleged in the complaint. When the agreement specifically says that the owner has got a right to repossess the vehicle, there cannot be any basis for alleging that the appellants have committed criminal breach of trust or cheating. Para 12. Before the learned Single Judge, the respondent had contended that the vehicle was in the possession of the respondent and it was taken out of his custody without his consent and therefore, the offence of theft is made out. This plea is also without any basis as the appellants have taken repossession of the vehicle in exercise of their right under the agreement. There may be instances where the owner of the goods may commit theft of his own good::;. Illustration (k) of Section 378 Indian Penal Code, which is an instance of such a theft, is to the following effect: "(k) Again, if A, having pawned his watch to Z, takes it out of Z's possession without Z's consent, not having paid what he borrowed on the watch, he commits theft, though the watch is his own property inasmuch as he takes it dishonestly." Para 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. 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 Indian Penal Code 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'. Para 14. It is also to be noticed that learned author R.M. Goode, in his book Hire Purchase Law and Practice (Second Edn.) has observed as follows at page 846: "It would seem that so long as the hirer is in possession of the goods they belong to him for the purpose of the Act (The Theft Act, 1968) even though his possession is unlawful. E.g. because the hire purchase agreement has come to an end. If the owner has an enforceable right to possession then he will not be guilty of theft in seizing the goods if he knew of his legal rights since he will not be acting dishonesty but will have taken the goods in the well-founded belief that he has a right to resume possession." Para 15. This Court also had occasion to consider this question. One of the earlier decisions in Sardar Triloh Singh Vs. Satya Deo Tripathi, (1979) 4 SCC 396 . In that case, the parties had entered into a hire-purchase agreement. The complainant alleged that the accused, in a high-handed manner during his absence came to his house and forcibly removed the truck and thereby committed offence of dacoity; The police investigated the case and filed a final report. The accused filed his objection before the Magistrate, but the objection was not considered. The accused filed a revision before the Sessions Court which was dismissed. Thereafter the accused filed a petition under Section 482 Criminal Procedure Code to quash the proceedings. The accused filed his objection before the Magistrate, but the objection was not considered. The accused filed a revision before the Sessions Court which was dismissed. Thereafter the accused filed a petition under Section 482 Criminal Procedure Code to quash the proceedings. That was summarily dismissed by the High Court and the matter reached up to this Court at the instance of the accused. In para 5 of the judgment, this Court observed. "5. We are clearly of the view that it was not a case where any processes ought to have been directed to be issued against any of the accused. On the well-settled principles of law it was a very suitable case where the criminal proceedings ought to have been quashed by the High Court in exercise of its inherent power. The dispute raised by the respondent was purely of a civil nature even assuming the facts stated by him to be substantially correct. Money must have been advanced to him and his partner by the financier on the basis of some terms settled between the parties....... Even assuming that the appellants either by themselves or in the company of some others went and seized the truck on 30-7-1973 from the house of the respondent they could and did claim to have done so in exercise of their bona fide right of seizing the truck on the respondent's failure to pay the third monthly installment in time. It was, therefore, a bona fide civil dispute which led to the seizure of the truck". Para 16. In K.A. Mathai Vs. Kora Bibbikutty, (1996) 7 SCC 212 , the bus was obtained by the complainant on the hire purchase agreement. The complainant paid only part of the consideration and defaulted in paying the installments and the vehicle was taken possession of by the financier and at that time, both the first accused who had driven away the bus from the possession of the complainant and the second accused were present in the bus. They were prosecuted for the offence punishable under Section 379 read with Section 114 Indian Penal Code. They were prosecuted for the offence punishable under Section 379 read with Section 114 Indian Penal Code. This Court holding that the bus was taken away at the instance of the financier and the accused had not committed any offence observed as under: "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 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 committed the offence of theft and that too, with the requisite mens rea and requisite dishonest intention." 23) From the above decisions of Division Bench of this Court and Hon'ble Supreme Court, it could be seen that if the financier takes possession of the vehicle in question by virtue of Hire Purchase Agreement on the ground that the hirer committed default in making payment of installments and the said possession is taken under a valid seizure, it could not be said that the possession was taken by the financier with 'dishonest intention' so as to attract the definition of theft as defined U/Sec. 378 of IPC. Therefore I am of the opinion that the above facts in the case on hand, which are proved by the prosecution beyond reasonable doubt do not constitute even the offence of theft against accused Nos. 1 to 6 inasmuch as the dishonest intention on the part of the accused in taking possession of the said lorry is lacking. 24) However, though the accused Nos. 1 to 5 being the office bearers and manager of the bank were entitled to take possession of the said vehicle by virtue of Hire Purchase Agreement a copy of which has been produced by the accused U/Sec. 313 of Cr.P.C., it could not be said that they were entitled to take the said lorry to their custody without a valid seizure under a panchanama. 25) On careful reading of the statements of accused Nos. 1 to 5 recorded U/Sec. 313 of Cr.P.C. It could be seen that the accused Nos. 1 to 4, being the office bearers of the bank, have not stated anything in the said statements as to how they look the possession of the said lorry. However, accused No.5, the manager of the said bank, has submitted his written statement U/Sec. 313 of Cr.P.C. annexing to it, 12 documents. It is stated by him in his said statement that the loan on' 1,94,000/- which was availed by the complainant on 9/12/1993 was agreed to be repaid by him in 36 monthly installments of Rs. 5,400/-each with interest at the rate of 15% p.a., first installment falling due on 8/1/1994, but the borrower failed to pay the installments regularly and therefore the bank made a request to the Khanapur PSI (accused No.6) to give police assistance in seizing the said vehicle as per Hypothecation Agreement, and, with the assistance of accused No.6 the bank, following due process of law like conducting of panchanama, the said lorry bearing No. KA-22/342 was seized and hence the accused did not commit any offence. 26) it is pertinent to note that though it is stated by accused No.5 in his written statement filed U/Sec. 313 of Cr.P.C. that the said vehicle was seized legally by conducting a panchanama, he has not stated further in the said statement as to who seized the said vehicle, who took the possession thereof, from whom and from which place and who prepared the said panchanama. Further, the original panchanama, said to have been prepared while taking possession of the said lorry, has not been produced by any of the accused Nos. 1 to 5 or accused No.6 PSI. 27. One of the documents produced by accused No.5 along with his written statement is said to be a copy of panchanama dated 6/7/1995 drawn in respect of seizure of the said Lorry. This document is in Marathi Language. During the course of arguments, the learned Counsel for the appellants-accused furnished to the Court the English translation of it. On careful reading of the translated copy of the said document, it could be seen that, it does not disclose as to who prepared it and from whom or from which place the possession of the said lorry was taken and by whom? On careful reading of the translated copy of the said document, it could be seen that, it does not disclose as to who prepared it and from whom or from which place the possession of the said lorry was taken and by whom? it is apparent from the said document that it is not a panchanama but it is a letter addressed to the Chairman of the Bank, intimating him the factum of seizure of the said lorry. Therefore I am of the considered opinion that this document cannot be held to be a valid panchanama prepared in respect of seizure of the said Lorry. 28. The fact remains that possession of the said lorry was taken by accused Nos. 1 to 5 forcibly with the assistance of accused No.6 PSI, without preparing any seizure panchanama and without intimating to the complainant. Therefore, though the bank was authorized to take possession of the said vehicle under the terms of the Agreement of Hypothecation on the ground that the complainant-borrower committed default in making payment of installments, it should not have taken its possession by forcibly taking its keys from PW.2 without the consent or without even intimating the complainant hirer and without drawing a valid panchanama. 29. Therefore, I am of the considered opinion that though the said acts of accused did not constitute an offence of theft also, nevertheless, they amount to illegal, unauthorized and forcible taking of the possession of the said vehicle in the absence of the complainant by obtaining its keys from the complainant's wife. 30. During the course of his arguments, though the learned Counsel for the accused submitted that the approved valuer valued the said Lorry between Rs. 2,81,000/- to Rs. 2,85,000/- and it was sold in public auction for Rs. 2,48,000/-, he has not been able to produce any material to show that wide publication was given as to the sale of the said Lorry by way of public auction and considerable number of purchasers participated in the said sale proceedings. 31) Therefore it is clear that, though the forcible taking of the said lorry by the accused to their possession under the guise of the Hypothecation Agreement, was without any dishonest intention of causing wrongful loss to the complainant, nevertheless, the said act of the accused resulted in considerable pecuniary loss to the complainant. 31) Therefore it is clear that, though the forcible taking of the said lorry by the accused to their possession under the guise of the Hypothecation Agreement, was without any dishonest intention of causing wrongful loss to the complainant, nevertheless, the said act of the accused resulted in considerable pecuniary loss to the complainant. Therefore, in my considered opinion, the complainant is entitled to be compensated for the unauthorized and illegal acts committed by accused Nos. 1 to 5 being the office bearers and manager of the bank. Accused No.6 PSI, who was to discharge his duties in accordance with law himself aided the accused Nos. 1 to 5 in taking illegal possession of the said Lorry forcibly. Therefore he should also compensate the complainant for the pecuniary loss sustained by him by reason of his illegal act of assistance given to accused Nos. 1 to 5 in taking possession of the said lorry forcibly. 32. Therefore I feel that, in order to secure the ends of justice, it would be just and reasonable to direct, by invoking the inherent powers under Section 482 Cr.P.C., accused Nos. 1 to 5 the office bearers and manager of the bank, and also accused No.6 PSI, to pay to the complainant jointly a reasonable amount as compensation towards the pecuniary loss sustained by him by reason of illegal and unauthorized taking of the possession of the said vehicle by accused Nos. 1 to 5 with the assistance of accused No.6. 33. For the reasons aforesaid I am of the consired opinion that the Trial Court was not justified in convicting accused Nos. 1 to 6 for the offence U/Sec. 395 of IPC and hence they all deserve to be acquitted of the said offence. Further, though the offence U/Sec. 379 of IPC also is not made out against all the appellants-accused, they are liable to pay reasonable amount to the complainant as compensation, towards the pecuniary loss sustained by him. Since the illegal and unauthorized act was committed by accused Nos. 1 to 4 being the office bearers and accused No.5, the manager of the bank, while acting on behalf of the bank in achieving the recovery of loan amount from the complainant, the bank shall have to be held vicariously liable for payment of the compensation to the complainant. Since the illegal and unauthorized act was committed by accused Nos. 1 to 4 being the office bearers and accused No.5, the manager of the bank, while acting on behalf of the bank in achieving the recovery of loan amount from the complainant, the bank shall have to be held vicariously liable for payment of the compensation to the complainant. Since the accused No.6 Police Officer acted without any authority, his act of aiding accused Nos. 1 to 5 in the commission of said acts by them cannot be said to be in exercise of his official duty, he shall have to pay compensation to the complainant personally from his pocket. Hence the following: ORDER The present Cr!. A. No. 1665/2004 is hereby allowed in part. The impugned Judgment and Order dated 25/11/2004 passed in Sessions Case No. 146/2002 by the learned Presiding Officer and Additional Sessions Judge, Fast Track Court-I, Belgaum, convicting all the accused Nos. 1 to 6 for the offence punishable U/Sec. 395 is hereby set aside. All these appellants-accused are hereby acquitted of the said offence. The bail bonds, if any, executed by these appellants shall stand cancelled. Khanapur Co-operative Bank Ltd., Khanapur, of which the accused Nos. 1 to 4 had been the office bearers and the accused No.5 had been the Manager, shall pay to the complainant namely Ravindra Marutirao Patil a sum of Rs. 1,50,000/- as compensation for the loss sustained by him by reason of illegal and unauthorized taking over the possession of the said lorry. However the said bank would be entitled to deduct from the said compensation amount the legal debt still existing and payable to it by the said complainant after adjusting the proceeds of the sale of the said lorry towards his loan account. The accused No.6 the PSI who is present in the Open Court now, submits that, he has been retired from his services. In view of this, he shall pay to the complainant only a sum of ~ 10,0001- as compensation for having aided the accused No.1 to 5 in taking possession of the said lorry illegally and unauthorisedly. The said amount of compensation shall be paid to the complainant in terms of this order within six weeks from today. The said bank shall submit its compliance report within the said period. The said amount of compensation shall be paid to the complainant in terms of this order within six weeks from today. The said bank shall submit its compliance report within the said period. Since the Crl.A.No. 1665/2004 is allowed in part and the conviction of the appellants-accused for the offence U/Sec. 395 of IPC is set aside, the Criminal Revision Petition No. 462/2005 filed by the complainant in the said Sessions Case seeking enhancement of the sentence imposed by the Trial Court on accused Nos. 1 to 6 therein (respondents herein) does not survive for consideration. Hence the same stands disposed 9f accordingly.