Research › Search › Judgment

Jharkhand High Court · body

2011 DIGILAW 1001 (JHR)

Sunil Kumar Kejriwal v. State of Jharkhand

2011-11-16

R.R.PRASAD

body2011
ORDER By the Court.- Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite party No.2. 2. Learned counsel appearing for the petitioner submits that the petitioner is the financer who advanced a sum of Rs. l lac to the opposite party No. 2 under an hire purchase agreement on 26.3.1999 for purchasing a vehicle which the opposite party No.2, purchased and under that agreement, the opposite party No. 2 was supposed to make payment in 18 equal installments by 26.9.2000 but he made payment of Rs.39.000/- only till March, 2000 and then stopped making payment. Therefore, the petitioner by invoking one of the clauses of hire purchase agreement, repossessed the vehicle on 10.5.2000. Thereupon a complaint was lodged after six months of the repossession of the vehicle alleging therein that the petitioner has taken possession of the vehicle and has also taken away a sum of Rs. l0.000/- from the vehicle. On such complaint, cognizance was taken on 24.3.2001 against the petitioner under Sections 379, 420 and 406 of the Indian Penal Code. That order was challenged before this Court, vide Cr.M.P.No. 499 of 2003 which was dismissed on 26.3.2004. Thereafter evidences were adduced before the charge and then cognizance of the offence was taken under Sections 406 of the Indian Penal Code against the petitioner, vide order dated 3.6.2006. That order was challenged before the revisional Court which was dismissed, vide order dated 25.6.2008 on the ground that the petitioner had earlier unsuccessfully challenged the order taking cognizance before this court. Those orders have been challenged in this application filed under Section 482 of the Code of Criminal Procedure. 3. Learned counsel appearing for the petitioner submits that in terms of clause of the hire purchase, the petitioner will remain owner till the entire payment is made by the hirer and since the hirer failed to make payment in terms of the hire purchase agreement. 3. Learned counsel appearing for the petitioner submits that in terms of clause of the hire purchase, the petitioner will remain owner till the entire payment is made by the hirer and since the hirer failed to make payment in terms of the hire purchase agreement. the petitioner by invoking one of the clauses of the hire purchase agreement repossessed the vehicle in question and thereby the petitioner cannot be said to have committed offence under Section 406 of the Indian Penal Code but this aspect of the matter, was not considered either by the Court below or even by the revisional Court and hence, the order under which charge has been framed and also the order passed by the revisional Court are fit to be set aside, in view of the decision rendered in a case of Charanjit Singh Chadha and others v. Sudhir Mehra, 2001 (3) East Cr C 186 (SC) : (2001) 7 SCC 417 . 4. As against this, learned counsel appearing for the opposite party No. 2 submits that the petitioner had challenging the order taking cognizance before this Court but that application got dismissed and the petitioner did not raise any objection when the charge was framed under Section 406 of the Indian Penal Code and therefore, the petitioner now cannot challenge the order framing charge. 5. Learned counsel further submits that when the charge was not framed by the Court below under Section 379 of the Indian Penal Code, the opposite party No. 2 moved before this Court in Cr. Rev. No. 330 of 2009 which was disposed of on 18.11.2009 whereby this Court expressed its view that it will not be interfering in the matter and the petitioner would be at liberty to move before the Court below for adding charge under Section 379 of the Indian Penal Code. 6. Having heard learned counsel appearing for the parties, it appears to be admitted position that the opposite party No. 2 had entered into an hire purchase agreement with the petitioner whereby the petitioner had advanced Rs. l lac to him which was to be repaid in 18 equal installments by 26.9.2000. This has also not been disputed on behalf of the opposite party No. 2 that the opposite party No. 2 defaulted in making payment of the installments. l lac to him which was to be repaid in 18 equal installments by 26.9.2000. This has also not been disputed on behalf of the opposite party No. 2 that the opposite party No. 2 defaulted in making payment of the installments. On such default being made by the opposite party No.2, the vehicle was repossessed by the petitioner on 10.5.2000. If the vehicle has been repossessed, there would, not be any commission of the offence under Section 406 of the Indian Penal Code as under the agreement, the petitioner would be the owner until the entire payment is made. Further I do find that under Clause 8 of the hire purchase agreement, the petitioner had right to repossess the vehicle upon a default being committed, by the hirer. The said clause reads as follows : "without prejudice to their other rights the owners may with or without notice to the hirer, terminate the contract of hiring and forthwith take possession of the Motor Vehicle or call upon the hirer to restore possession of the Motor Vehicle to them in anyone or more of the following events." 7. In that view of the matter and also in view of the terms of the hire purchase agreement that the petitioner being financer would be the owner of the vehicle until the entire payment is made, the petitioner cannot be said to have committed offence under Section 406 of the Indian Penal Code. 8. The same view has been expressed by the Hon'ble Supreme Court in a case of Charanjit Singh Chadha and others v. Sudhir Mehra. 2001 (3) East Cr C 186 (SC), (supra) wherein it has been held that as per the agreement hirer would net become owner of the vehicle until he pays the entire installments. It has been further held that in case of default in making payment of the installment by hirer, owner if takes possession of the vehicle without consent of hirer, he will not be committing any offence either of theft or criminal breach of trust. 9. Under the circumstances, the order dated 3.6.2006 passed by the learned Magistrate. Ranchi in Complaint Case bearing No. C-738 of 2000 under which charge has been framed under Section 406 of the Indian Penal Code as well as order passed by the revisional Court are hereby quashed. 10. In the result, this application is allowed. Application allowed.