Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 415 (GAU)

Gobardhan Chandhak v. State of Assam

2012-03-30

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. When would a financier's act of re-possession of a vehicle, which is covered by a hire-purchase agreement, not amount to an offence of theft? This is the cardinal issue, which these this application made under Section 482 Cr PC has raised. Yet another important question, which arises for consideration, is: When the financier or his agent commits any 'offence', while in the act of repossessing the vehicle, whether commission of such an 'offence' would make the financier and/or his agent, as the case may be, liable for prosecution under the appropriate penal provisions With the help of this Criminal Petition, made under Section 482 Cr PC the petitioner, who is one of the accused in Complaint Case No. 242/2007, has sought to get set aside and quashed the order, dated 04.07.2007, passed by the learned Additional Chief Judicial Magistrate, Sonitpur, in CR Case No. 242 of 2007, taking cognizance of offence, under Sections 379 and 506 read with Section 34 IPC, and directing issuance of process against the accused No. 1 (i.e., the present petitioner) under Section 379/34 IPC and also process against the accused No. 2 (who is not petitioner in the present case) under Sections 379/506/34 IPC. 2. I have heard Mr. D. Das, learned counsel for the petitioner. None has appeared on behalf of the complainant-opposite party. However, I have heard Mr. Z. Kamar, learned Public Prosecutor, Assam. 3. While considering the present application, made under Section 482 Cr PC, it needs to be noted that the present petitioner, who is one of the accused in the said complaint case, has put to challenge the order, dated 04.07.2007, so far as the same concerns the present petitioner. 4. The question, therefore, which falls for determination, in the present petition, is as to whether the ingredients of offence, under Section 379 IPC, read with Section 34 IPC, stood attracted to the facts of the present case so far as the present petitioner is concerned. 5. For the purpose of answering the questions, posed above, let me, first, consider the case as projected by the complainant. The case of the complainant, as unfolded by the complaint, may, in brief, be described thus: (i) Accused No. 1 is the collection manager of ICICI Bank Ltd., Panbazar Branch, Guwahati (hereinafter referred to as the respondent bank). 5. For the purpose of answering the questions, posed above, let me, first, consider the case as projected by the complainant. The case of the complainant, as unfolded by the complaint, may, in brief, be described thus: (i) Accused No. 1 is the collection manager of ICICI Bank Ltd., Panbazar Branch, Guwahati (hereinafter referred to as the respondent bank). The complainant, who is a businessman, being in need of a four-wheeler, approached the respondent bank and, after initial discussion, the respondent bank agreed to sanction loan to the complainant for the purpose of enabling the complainant purchase a four-wheeler and, as per the agreement reached between the complainant and the respondent bank, the complainant made a down-payment of Rs. 1,27,490/- to the respondent bank and the respondent bank disbursed a loan of Rs. 5,77,000/- to the complainant, which was to be repaid to the respondent bank with interest. (ii) Though the complainant had been paying the dues (installments) regularly, yet, on 21.04.2007, at about 7-15 p.m., the driver of the complainant's said vehicle, with one working staff in the vehicle, was driving the vehicle to Tezpur from Gohpur and, on the way, when they reached a place called Dhaleswar, accused No. 2, who owns Pragati Repo Agency, stopped the vehicle, asked the driver and the said staff of the vehicle to get off the vehicle and hand over the keys of the vehicle to them. When the driver refused to do so, accused No. 2 and his associates began to abuse him. Accused No. 2 and his associates also threatened the driver and the said staff of the vehicle with dire consequences and, in fact, they assaulted the driver and the accused No. 2 forcibly, snatched away the keys of the vehicle from the driver and took possession of the vehicle. (iii) When the driver and the said staff of the vehicle wanted to know from the accused No. 2 the reason for such highhandedness, accused No. 2 told the driver that they were repossessing the vehicle under the instruction of accused No. 1 and 3 (who is the selling agent), because the dues of the vehicle had not been paid. (iii) When the driver and the said staff of the vehicle wanted to know from the accused No. 2 the reason for such highhandedness, accused No. 2 told the driver that they were repossessing the vehicle under the instruction of accused No. 1 and 3 (who is the selling agent), because the dues of the vehicle had not been paid. Though the driver and the working staff of the complainant told accused No. 2 that the complainant had been paying the monthly installments without default and that accused No. 2 and his associates had no right to forcibly take possession of the vehicle, the accused No. 2 did not pay any heed to them. Thereafter, accused No. 2, with the help of his musclemen, took signature of the driver on some papers and threatened him of dire consequences. At the time of repossessing the vehicle, accused No. 2 also took away the CD system of the vehicle from the box of the vehicle. Though the complainant reported the matter to accused No. 3, who promised to look into the matter, nothing fruitful yielded and, hence, the complaint was lodged. 6. The financier's entire case, which has been made out in order to get the complaint quashed, is that it had provided the vehicle, in question, to the hirer (i.e. Sri Soumitra Sarkar) on the basis of a hire-purchase agreement and, acting upon this agreement, when it (i.e., the creditor) has re-possessed the vehicle due to default in making payment of the stipulated installments by the hirer, no case of theft can be said to have been made out against the financier. 7. In view of the nature of the case, which the financier has set up, it is necessary that one ascertains as to what really a hire-purchase agreement is and when an act of repossession of a vehicle, which is covered by a hire-purchase agreement, cannot subject the financier to a prosecution for commission of offence, particularly, of theft. 8. A hire-purchase agreement is, ordinarily, one, where under an owner gives, on hire, a movable property to another party, called the hirer, and further agrees that the hirer shall have an option to purchase the property, when he has paid a certain sum, or when the hire rental payments have reached the hire-purchase price stipulated in the agreement. 8. A hire-purchase agreement is, ordinarily, one, where under an owner gives, on hire, a movable property to another party, called the hirer, and further agrees that the hirer shall have an option to purchase the property, when he has paid a certain sum, or when the hire rental payments have reached the hire-purchase price stipulated in the agreement. (See Sundaram Finance Ltd. vs. State of Kerala & another reported in AIR 1966 SC 1178 ). Hire-purchase agreements are, thus, executory contracts, where under the goods are let on hire and the hirer has an option to purchase the goods in accordance with the terms of the hire-purchase agreement. (See Charanjit Singh Chadha and other vs. Sudhir Mehra, reported in (2001) 7 SCC 417 ). The hire-purchase agreements were, originally, entered into between the dealer and the customer, because the dealer used to extend the credit to the customer in the form of hire-purchase agreement. However, when the hire-purchase schemes gained popularity and the market for hire-purchase agreements expanded, the dealers, who did not have sufficient working capital, found it difficult to extend the scheme of hire-purchase liberally to potential customers. It is, in these circumstances, that individuals and financial institutions came into picture. The finance company, in such cases, would, pursuant to a hire-purchase agreement, buy the goods from the dealer and let the same to the customer under the hire-purchase agreement. The dealer would deliver the goods to the customer and, then, drop out of the transaction leaving the financier to collect the installments directly from the customer. Thus, under a hire-purchase agreement, the hirer simply pays for the use of the goods with option to purchase the same. The finance charged, representing the difference between cash price and the hire purchase price, is not interest, but represents a sum, which the hirer has to pay for the privilege of being allowed to discharge the hire-purchase price of the goods by installments. 9. In Damodar Valley Corporation vs. State of Bihar AIR 1961 SC 440 , the Supreme Court took the view that a mere contract of hiring without anything more is a species of the contract of bailment, which does not create any title in the bailee. This view, as pointed out in Charanjit Singh Chadha (supra), has undergone considerable change. 9. In Damodar Valley Corporation vs. State of Bihar AIR 1961 SC 440 , the Supreme Court took the view that a mere contract of hiring without anything more is a species of the contract of bailment, which does not create any title in the bailee. This view, as pointed out in Charanjit Singh Chadha (supra), has undergone considerable change. Ordinarily, a contract of hire-purchase confers no title on the hirer, but a mere option to purchase the hired goods on fulfillment of certain conditions. But a contract of hire-purchase may also provide for the agreement to purchase the thing hired by deferred payments subject to the condition that title to the thing shall not pass until all the installments have been paid. There may be other variations in a contract of hire-purchase depending, of course, upon the terms agreed between the parties. 10. In K.L. Johar and Co. vs. CTO, AIR 1962 SC 53 and Installment Supply (P) Ltd. Vs. Union of India, AIR 1966 SC 1178 , the Supreme Court has pointed out that a hire-purchase agreement has two elements, namely, (i) an element of bailment, and (ii) an element of sale, for, such an agreement contemplates an eventual sale inasmuch as the goods (which remains till then hired) stands sold, when all the terms of the agreements are satisfied and the option to purchase the hired goods is exercised. 11. Now, turning to the facts of Charanjit Singh Chadha's case (supra), what needs to be pointed out is that in Charanjit Singh Chadha's case (supra), a complaint was lodged with the Judicial Magistrate alleging to the effect that the motor vehicle, in question, had been lying for some repairing work with a mechanic and it was from there that the financier had forcibly taken away the vehicle. The financier had, thus, it was alleged, committed offences under Sections 406/420/ 120b IPC. Having taken cognizance of the offences aforementioned, when summons were issued to the financier, the financier filed a petition, under Section 482 Cr. The financier had, thus, it was alleged, committed offences under Sections 406/420/ 120b IPC. Having taken cognizance of the offences aforementioned, when summons were issued to the financier, the financier filed a petition, under Section 482 Cr. P.C. seeking quashing of the complaint proceeding, the case of the financier being that it was, on the strength of a hire-purchase agreement, that the vehicle had been purchased by the financier and as the complainant had failed to repay the loan in terms of the agreement between the parties, the financier had terminated the agreement and it was the complainant, who had surrendered the motor vehicle to the financier. The Punjab High Court declined to quash the proceedings by holding that the allegations, made in the complaint, did make out commission of offence of theft under Section 379 IPC. It was against this order that the financier carried an appeal to the Supreme Court, wherein it was contended, on behalf of the financier-appellant, that even if it was proved that the vehicle had been forcibly taken away from the custody of the respondent, this may not amount to an offence under the law as the hire-purchase agreement, in question, provided for repossession of the vehicle by the owner, namely, financier-appellant, in the event of default by the hirer-respondent. The Supreme Court points out, in Charanjit Singh Chadha (supra), that Clause 8 (viii) of the agreement between the parties gives a right to the owner to repossess the vehicle in case of default by the hirer and despite this clause, a plea was taken, in the High Court, that since the vehicle was in the possession of the hirer and the same was taken away from his custody without his consent, the acts of the financier amounted to an offence of theft. This plea, according to what Charanjit Singh Chadha (supra) lays down, is wholly without any basis, for, the financier had repossessed the vehicle in exercise of its right under the agreement of hire-purchase. 12. This plea, according to what Charanjit Singh Chadha (supra) lays down, is wholly without any basis, for, the financier had repossessed the vehicle in exercise of its right under the agreement of hire-purchase. 12. In Charanjit Singh Chadha (supra), the Supreme Court has also pointed out that though, in certain circumstances, as given in illustration (k) of Section 378 IPC, even the owner of a property may be liable for committing theft of his own property, the fact remains that in order to make out a case of theft, the ingredient of dishonest intention must be shown to be present and in the case of hire purchase agreement, since the element of dishonest ingredient is lacking, taking away of the vehicle by the financier, in exercise of his rights under the hire purchase agreement, does not amount to an offence of theft. The Supreme Court, in this regard, has the observations made in Hire Purchase Law and Practice (Second Edition), at page 846, which read as under: 14. 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 dishonestly but will have taken the goods in the well-founded belief that he has a right to resume possession. 13. In short, thus, in Charanjit Singh Chadha (supra), the Supreme Court has pointed out that when a financier, as owner, repossesses a vehicle from the hirer, pursuant to the hire-purchase agreement, the element of dishonest intention, which is the ingredient of the offence of theft, is lacking and such taking away of the vehicle by the financier, as owner, would not constitute the offence of theft, for, the financier, as owner, takes away such a vehicle in exercise of its right under an agreement entered into between the parties. 14. 14. Coupled with the above, it is, perhaps, necessary to clarity that commission of theft, as defined under Section 378 IPC, consists of two parts- (i) moving of a movable property of a person out of his possession without his consent, and (ii) such moving of the property being in order to take the property with dishonest intention. Thus, (1) the absence of the person's consent at the time of moving, and (2) the presence of dishonest intention in so taking away the property are the essential ingredients of the offence of theft. If both the elements of dishonest intention and absence of consent, as indicated hereinbefore, are not present in a given case, the act or omission of moving of a property would not amount to offence of theft. Hence, the mere taking away of a property by a person without the consent of the owner or possessor of the property would not amount to an offence of theft unless such taking away is with dishonest intention 15. 'Dishonesty' is defined by Section 24 IPC, which states that whosoever 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'. Section 23 of the Indian Penal Code explains what is 'wrongful gain' and what is 'wrongful loss'. 'Wrongful gain' is gain by unlawful means of property to which the person gaining is legally entitled. 'wrongful loss' is the loss by unlawful means of property to which the person losing it is legally entitled. This section further clarifies that a 'wrongful gain' means both wrongful acquisition as well as wrongful retention and 'wrongful loss' includes wrongful deprivation of property as well as being wrongfully kept out of any property. Section 24 IPC, thus, shows that the intention to cause either 'wrongful gain' or 'wrongful loss' must be present in an act or omission in order to make such an act or omission a 'dishonest act'. What is, however, important to note is that in the case of wrongful gain, the person gaining is not legally entitled to the property and, in wrongful loss, the person losing is legally entitled to the property. What is, however, important to note is that in the case of wrongful gain, the person gaining is not legally entitled to the property and, in wrongful loss, the person losing is legally entitled to the property. Viewed thus, it is clear that be it the case of wrongful gain or wrongful loss, the person taking the property is not to be the person legally entitled to acquire the property or retain the property and, further, that the means, adopted by him to obtain the property, is unlawful too. 16. In the case of wrongful gain as well as wrongful loss, two essential elements are essential, they are (a) use of unlawful means and (b) unlawful acquisition. The existence of one without the other is not sufficient. It is necessary to bear in mind that the word 'unlawful' can be construed differently to give it two different meanings. When an act is merely prohibited, but is not made punishable, it is not 'unlawful' within the meaning of Section 23. In order to become 'unlawful', an act must not only be prohibited, but must also be punishable. 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 and also when such a person is wrongfully deprived of property. Hence, when a person is in possession of a property to which he is not legally entitled, he cannot suffer wrongful loss, if the property is taken away by the person, who is legally entitled thereto. When, in terms of a hire-purchase agreement, the financier acquires the right to repossess the property, there is a corresponding loss of the right to retain the property by the hirer. In such an event, when the financier repossesses the property, he cannot be said to have deprived the hirer of the property to which the hirer is, otherwise, legally entitled. In such an event, when the financier repossesses the property, he cannot be said to have deprived the hirer of the property to which the hirer is, otherwise, legally entitled. In a given case, therefore, when the offence of theft is alleged to have been committed by the person, who has provided finance under a hire-purchase agreement, the complainant must make out that (i) the accused, as financier, was not entitled to repossess the vehicle, (ii) the means employed by the financier to take possession of the vehicle were unlawful, and (iii) the taking away of the vehicle was without the complainant's consent. 17. No wonder, therefore, that Salmond, in his Treatise on Torts (1961), 13th Ed. Page 804, Article 228, says- Any person entitled to the possession of goods may retake the goods either peacefully or by the use of reasonable force from any person who has wrongfully taken or detained from him. Such a retaking, even though forcible, is neither a civil injury nor a criminal offence 18. There is, as on today, no specific statute governing the rights and liabilities of the parties to a transaction of hire-purchase. The law, in fact, as it stands now, leave the parties to their own arrangement in respect of various incidents of the hire-purchase agreement. Unless, as already indicated above, any of the terms arrived at in a hire-purchase agreement contravenes the law or is against the public policy, such an agreement would be binding on the parties. When the parties specifically provide, in their agreement of hire-purchase, for certain situations, prescribe a particular procedure, which they are to adopt, and specify the means, which they may use to resolve those situations, they are bound by those terms of the agreement. If the terms and conditions agreed to by the parties do not contravene any provisions of the law, such provisions would be lawful and if any of the parties exercises a right given to him under such an agreement, the other party cannot cry foul or complain. 19. If one considers the act of taking of possession by the financier in accordance with the terms of a hire-purchase agreement, the hirer cannot complain that the financier has committed an offence of theft merely because the removal was without his formal consent. 19. If one considers the act of taking of possession by the financier in accordance with the terms of a hire-purchase agreement, the hirer cannot complain that the financier has committed an offence of theft merely because the removal was without his formal consent. A hire-purchase agreement, by mutual agreement of the parties, vests in the financier the right to re-seize the property and when the financier exercises his right, he cannot be said to have acted dishonestly, for, his act cannot be said to be an act done with the intention of causing wrongful gain or wrongful loss, for, the act, i.e., taking away of the property by the financier in exercise of his rights, under the hire-purchase agreement, does not make the financier gain something, which he is not entitled to, nor does such act of the financier deprive the hirer of the property, which the hirer is entitled to and not the financier. When, as a result of the default in making payment of the installments stipulated, the financier repossesses a vehicle, such an act of repossession would not amount to an offence of theft. It is, in this light, that the decision in Chiranjit Singh Chadha (supra) needs to be read. 20. In Sardar Trilok Singh vs. Satyadeo Tripati, reported in (1979) 4 SCC 396 , the complainant had alleged that during his absence, the accused, in a high handed manner, came to the house of the complainant and forcibly removed the truck and thereby committed the offence of dacoity. The police investigated the case and filed a report. The accused filed his objection before the Magistrate, but the objection was not considered. The accused filed a revision before the Sessions Court; but the revision was dismissed. Thereafter, the accused filed a petition under Section 482 Cr PC to quash the proceedings. That was summarily dismissed by the High Court and the matter, then, reached the Supreme Court at the instance of the accused financier. In paragraph 5 of the judgment, the Supreme Court observed that such a dispute was essentially a dispute of civil nature, for the financier had acted bona fide in seizing the truck in exercise of the right given to him under the hire-purchase agreement. The relevant observations, made in Sardar Trilok Singh (supra), read: 5. In paragraph 5 of the judgment, the Supreme Court observed that such a dispute was essentially a dispute of civil nature, for the financier had acted bona fide in seizing the truck in exercise of the right given to him under the hire-purchase agreement. The relevant observations, made in Sardar Trilok Singh (supra), read: 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 proceeding 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. 21. K.A. Mathai vs. Kora Bibbikutti, reported in (1996)7 SCC 212 (Para 16), is a case, wherein a bus was obtained by the complainant on the basis of a hire-purchase agreement. For the default in making payment of the installments, when the financier took possession of the vehicle, the financier was prosecuted for offences under Section 379 read with Section 114 IPC. The Supreme Court, in such circumstances, observed: 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 installments 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. 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. 22. From the observations made in K.A. Mathai (supra), what clearly transpires is that in the case of a hire-purchase agreement, when a financier takes possession of a vehicle from the hirer due to default in payment of installments, he does not commit the offence of theft. (See also Manipal Finance Corporation Ltd. vs. T. Bangarappa & another, reported in 1994 Supp. (1) SCC 507). 23. The Managing Director, Orix Auto Finance (India) Ltd. vs. Shri Jagmander Singh & another, reported in (2006) 2 SCC 598 , is yet another case, where the financiers, who had financed a truck on the basis of a hire-purchase agreement, took over the possession of the truck from the hirer due to default in payment of installments and the hirer lodged a complaint with the RBI and also instituted a suit for, inter alia, mandatory injunction, the Supreme Court observed as under: 9. Before we part with the case, it is relevant to take note of submission of learned counsel for the hirer that in several cases different High Courts have passed orders regarding the right to repossess where the High Court have entertained writ petitions including writ petitions styled as PIL on the question of right of financiers to take possession of the vehicle in terms of the agreement. It is stated that directions have been given to RBI for framing guidelines in this regard. If it is really so, the orders prima facie have no legal foundation, as virtually while dealing with writ petitions subsisting contracts are being rewritten. It is still more surprising that petitions styled as PIL are being entertained in this regard. Essentially these are matters of contract and unless the party succeeds in showing that the contract is unconscionable or opposed to public policy the scope of interference in writ petitions in such contractual matters is practically non-existent. It is still more surprising that petitions styled as PIL are being entertained in this regard. Essentially these are matters of contract and unless the party succeeds in showing that the contract is unconscionable or opposed to public policy the scope of interference in writ petitions in such contractual matters is practically non-existent. If agreements permit the financier to take possession of the financed vehicles, there is no legal impediment on such possession being taken. Of course, the hirer can avail such statutory remedy as may be available. But, mere fact that possession has been taken, cannot be a ground to contend that the hirer is prejudiced. 24. From the observations made above, in The Managing Director, Orix Auto Finance (India) Ltd. (supra) too, it is abundantly clear that if a hire purchase agreement permits the financier to take possession of the vehicle if the hirer defaults in making repayment of the installments, there is no impediment, on the part of the financier, to take possession of the vehicle. 25. In short, what crystallizes from the various authorities discussed above is that when a financier, pursuant to the agreement of hire-purchase, repossesses the hired goods, he commits no offence of theft. 26. Bearing in mind what is indicated above, when I turn to Manipal Finance Corporation Ltd. vs. T. Bangarappa & another, reported in 1994 Supp (1) SCC 507, I notice that in Manipal Finance Corporation Ltd. (supra), the vehicle, which had been financed, on the basis of a hire purchase agreement, was taken possession of by the financier due to default in repaying the installments by the hirer. The hire lodged a complaint to the effect that two of the employees of the financier had committed offence of theft, when they had taken away the vehicle. Reacting to the facts, so indicated, the Supreme Court held, in Manipal Finance Corporation Ltd. (supra), thus: The appellant had, under the terms of the hire-purchase agreement, taken possession of the vehicle. While observing that prima facie this action could be supported by the contract, the learned Magistrate directed the vehicle to be returned to the hirer on a mere indemnity bond. While observing that prima facie this action could be supported by the contract, the learned Magistrate directed the vehicle to be returned to the hirer on a mere indemnity bond. It is indeed surprising that without making good the charge of theft the hirer by using the State instrumentality, namely, the police, obtained possession of the vehicle and thereafter obtained its custody through the order of the learned Magistrate without making good his allegation that he was deprived of the possession of the vehicle by theft. We are indeed surprised at the approach of the courts below which is totally unsustainable. We, therefore, set aside the order passed by the learned Magistrate and affirmed by the learned Sessions Judge as well as the High Court and direct that the vehicle in question be restored to the possession of the appellant, if necessary, by police help. The police if approached by the appellant will ensure restoration of the vehicle to the appellant. The appeal is allowed accordingly. The order will not prejudice the civil rights of the parties, if any. 27. From the above observations, what is most relevant to note is that when a person alleges commission of offence of theft in respect of a vehicle by claiming that his vehicle has been taken away, it is the duty of the Court to be satisfied that the charge of theft is prima facie made out before any direction for custody of the vehicle is passed. Viewed thus, it is clear that in the present case too, the present buyer has to make out a case of theft having been committed by the financier in respect of the vehicle, in question, and until the time the commission of offence of theft is prima facie made out, the question of directing the vehicle to be handed over to the present complainant or anyone else except the financier cannot arise and could not have arisen. 28. Notwithstanding what have been indicated above, I must hasten to add that if, in the process of repossessing a vehicle, covered by hire-purchase agreement, when the financier or his representative or his agent commits any offence, the financier or the representative or the agent, as the case may be, cannot evade the liability of being prosecuted for commission of such an offence. 29. 29. Considering the fact, however, that the accused-petitioner has not asked for custody of the vehicle, in question, there is no reason for this Court to interfere with that part of the impugned order, whereby the learned Court below has directed the custody of the vehicle, in question, to be handed over to the complainant. It would, however, remain open for the respondent bank to deal with the question of custody in accordance with law. 30. What surfaces from the above discussion, held as a whole, is that when a financier, pursuant to the agreement of hire-purchase, repossesses the hired vehicle, he commits no offence of theft; but if, in the process of repossession of the vehicle, the financier, his agent or representative commits any offence other than taking possession of the vehicle, the financier, his agent or representative, as the case may be, would be accountable to law for the offence so committed by him (See Arindam Basu & other vs. Amal Kumar Bose & other, reported in AIR 2006 Cal. 295 ). 31. In the backdrop of the position of law, as indicated above, when I turn, once again, to the complaint, in question, I notice that the allegations, embodied in the complaint, stand divided into two parts. While one part of the complaint alleges that the vehicle has been forcibly taken away, the other part of the complaint alleges that, while taking away the vehicle, in question, the accused No. 2 abused and assaulted the complainant's driver and working staff and also took away the CD system of the vehicle. So far as the allegations, as regards taking possession of the vehicle, are concerned, the same, the learned trial Court ought to have noted, were pursuant to the agreement, which the parties had executed between them, and, hence, the taking away of the vehicle did not amount to commission of the offence of theft. However, as far as the alleged act of abuse and assault by accused No. 2 and his act of taking away of the CD system of the vehicle, with the help of his associates, are concerned, his acts made out prima facie a case of commission of theft and criminal intimidation. 32. However, as far as the alleged act of abuse and assault by accused No. 2 and his act of taking away of the CD system of the vehicle, with the help of his associates, are concerned, his acts made out prima facie a case of commission of theft and criminal intimidation. 32. While, thus, the learned trial Court has rightly issued process, under Sections 379 and 506 IPC read with Section 34 IPC as against the accused No. 2, the issuance of process against accused No. 1, under Section 379 read with Section 34 IPC, for allegedly committing offence of theft, is, in the considered view of this Court, untenable in law. Consequently, no direction could have also been given by the learned trial Court to the police to seize the vehicle and give the zimma (custody) thereof to the complainant. When the agreement between the parties concerned provides for repossession of the vehicle, the act of taking possession of the vehicle, in the face of the materials on record, could neither amount to commission of offence under Section 379 read with Section 34 IPC as against the accused No. 1 (i.e., the petitioner herein) nor did the alleged repossession entitle the complainant to obtain the custody of the vehicle with the help of the police. 33. What crystallizes from the above discussion is that the act of issuance of process, under Sections 379 and 506 read with Section 34 IPC, as against the accused No. 2, is concerned, the same cannot be interfered with. However, as far as the issuance of process against the accused No. 1 (i.e., the petitioner herein) is concerned, the same is untenable in law and, in consequence thereof, even the direction, given by the learned trial Court to the police, to seize the vehicle and hand over the zimma (custody) thereof to the complainant by ignoring completely the terms and conditions of the hire-purchase agreement, cannot be sustained. 34. In the result and for the reasons discussed above, while the direction for issuance of process, as against the accused No. 1 (namely, the petitioner herein) is hereby set aside and quashed and, in consequence thereof, the direction, given to the police to seize the vehicle, in question, and give zimma thereof to the complainant, is also hereby set aside and quashed. However, the criminal prosecution, as against the accused No. 2, shall proceed in accordance with law. 35. With the above observations and directions, this criminal petition stands disposed of. Send back the LCR.