Madras High Court
R. Krishnamurthy vs The State, Represented By The Inspector ... on 13 March, 2003
Author: V. Kanagaraj
Bench: V. Kanagaraj
ORDER V. Kanagaraj, J.
1. Among the above three criminal original petitions, the first one in Criminal Original Petition No. 5324 of 2003 has been filed by the driver of the vehicle, the second one in Criminal Original Petition No. 5410 of 2003 has been filed by the financier viz. Cholamandalam Investment and Finance Company Limited and the third one in Criminal Original Petition No. 6305 of 2003 has been filed by the owner of the vehicle and the cine equipments viz. Anand Cine Service and since all the above three criminal original petitions are interconnected and interrelated to each other, they have all been heard together and this common order is passed.
2. For easy reference and for the sake of convenience, the above criminal original petitions in the given order will hereinafter be referred to as the first, second and third criminal original petitions.
3. The first and third criminal original petitions would go along with each other, since being by the driver of the vehicle and the owner of the vehicle and the cine equipments contained therein and the second criminal original petition has been filed by the opposite party Cholamandalam Investment and Finance Company Limited alleged to be the financier for the purchase of the vehicle by the third petitioner who is alleged to have taken away the vehicle along with the cine equipments kept inside worth Rs. 1,18,00,000/= (Rupees One Crore and Eighteen Lakhs Only).
4. In the first petition, the petitioner/driver would pray to direct the respondents herein to arrest the accused Murali, Giridhar and Bhaskar and unidentified four others in FIR No. 357/2003, dated 13.2.2003, cause investigation in the matter and file a report before the Court within a time fixed by this Court. In the second petition, the financier would pray to quash the FIR registered by the E3 Teynampet Police in Cr. No. 357/2003 and in the third petition above, the petitioner/Anand Cine Service would pray to direct the respondent Police to take action in accordance with law on the complaint dated 13.2.2003 of the petitioner and file a final report.
5. The case of the petitioners in the first and third criminal original petitions above is that M/s. Anand Cine Service, a partnership firm, is the largest cine equipment supplier in the country and the equipments are unique and expensive and they have trucks fitted with generators; that the truck would be loaded with all sophisticated equipments and it is a self-contained unit capable of being used for a day's shooting in any outdoor location; that the truck would go early in the morning and return late in the night after the shooting is over and they used to be parked at No. 601, Anna Salai, Chennai-6, when the same is not in use.
6. The petitioners in the first and the third criminal original petitions above furnish a list of the cine equipments contained in the truck No. TSD 8002 of which the petitioner in the first Crl. O.P. is the driver and they would submit that on 13.2.2003 at about 5.00 a.m., when the driver, the first petitioner above, along with the unit assistants S. Srinivasa Kumar and S. Vyravan proceeded to their office at No. 3, Sarangapani Street, T. Nagar, Chennai-17 to collect the log-sheet on their way to the shooting spot, at Kodambakkam High Road in front of Vidyodaya School at Tirumalai Pillai Road, they were waylaid and the persons and the property in the truck along with the vehicle have been forcibly taken to some unknown destination near Ekaduthangal from where the men were let off but the vehicle with the expensive equipments were taken away by the hijackers; that then the driver and the unit assistants reached their office in an auto-rickshaw and informed about the incident and on enquiry they came to know that it was the handiwork of M/s. Cholamandalam Investments and Finance Company Limited, who, in spite of the hire-purchase agreement was over, in a high-handed manner had taken forcible possession of not only the truck but also the equipments. Then, the driver, the first petitioner above, has gone to the jurisdiction Police E-3 Teynampet Police Station and lodged the complaint followed by yet another complaint by the third petitioner/the owner of the vehicle and the cine equipments; that even though the incident took place on 13.2.2003, till date no action has been taken by the police and hence the first and the third criminal original petitions above for the reliefs extracted supra.
7. The petitioners in the first and third petitions above would further submit that the vehicle is kept in some undisclosed destination along with the valuable equipments; that the Deputy Commissioner of Police concerned, on 24.2.2003, heard the matter calling for both parties to appear before him but he was not allowed to carry out his duties in the manner required by law by the accused as a result of which nothing fruitful has turned out on the complaint lodged by the first petitioner before the respondents as a result of which the third petitioner is subjected to irreparable loss and hardship.
8. The petitioners would further submit that the accused without resorting to the proper forum of law, if at all they are aggrieved in any manner regarding the hire-purchase agreement entered into in between them for a total sum of Rs. 90 lakhs which had been adjusted against full and final settlement for the amount payable to the accused under the decree passed by the High Court, Madras in C.S. No. 240 of 1999, have used goondas for the purpose of hijacking the vehicle; that by letter dated 31.10.2001, the accused M/s. Cholamandalam Investment and Finance Company Limited gave a `No Due Certificate' for the earlier contract bearing No. HP.10015, dated 31.3.2001; that from the petitioner's side a separate loan agreement was executed for the disputed Rs. 15 lakhs however on the understanding that the same would be settled only at the time of settlement of the dispute concerning the property; that the accused company has no right to deal with the vehicle and they have hijacked the vehicle and it is still in the illegal possession of the accused and the accused have no acceptable cause or reason to keep the vehicle belonging to the third petitioner in their custody and in spite of such atrocities committed on the part of the financier, no action has been taken by the respondent Police on both the complaints and hence they have come forward to file the first and the third petitions above with the prayers extracted supra.
9. So far as the second criminal original petition No. 5410 of 2003 filed by the finance company, against whom the complaints have been lodged by the first and third petitioners before the E3 Teynampet Police in the aforementioned manner is concerned, they would allege that they are a reputed non-banking financial institution engaged in the business of extending financial assistance under various hire purchase lease and loan schemes; that M/s. Anand Cine Service, as per the agreement dated 1.11.2001 entered with them, had obtained a loan of Rs. 90 lakhs to be paid in six monthly instalments of Rs. 15 lakhs each commencing from 30.11.2001 but failed to make any of the payments due from them under the agreement; that the agreement provides for the petitioner being entitled to exercise the right to repossess the vehicles and bring them to sale and appropriate the sale proceeds towards the accounts and the petitioner was obliged to exercise the right of repossession available under the agreement resulting in one of the ten vehicles covered under the agreement i.e. HMV goods vehicle with generator set bearing registration No. TSD 8002 being taken repossession by the petitioner on 13.2.2003 morning intimating the seizure of the vehicle to M/s. Anand Cine Service by telegram on the same day.
10. The financier would further submit that while so, it is shocking to find that M/s. Anand Cine Service have lodged a false complaint with the E3 Teynampet Police however admitting that the vehicle was under hire purchase agreement with the petitioner but alleging that the cine equipments were the subject matter of theft and the said complaint has been taken on file by the respondent in the Cr. No. 357/2003 under Sections 341, 365, 397 and 506(II) IPC dated 17.2.2003 and following this false complaint, the officers of the petitioners are being harassed by the Investigating Officer either to release the vehicle seized or pay compensation to the defacto-complainant; that their officers are being falsely sought to be implicated, harassed and threatened under the guise of investigation and threat of prosecution. On such allegations, the financer would ultimately pray to quash the FIR registered by the E3 Teynampet Police in Cr. No. 357/2003.
11. During arguments, the learned counsel appearing on behalf of the petitioners in the first and third criminal original petitions would submit that the third petitioner M/s. Anand Cine Service has paid-off the debt amount in full and no fraction of the amount borrowed is due to the financier and would show the endorsement dated 4.5.2001 that the financer has to cancel the hire purchase agreement after giving notice. The learned counsel would also cite certain invoices purported to have been given by Anand Cine Service stating that they are false invoices fraudulently prepared by the financier forging the signature of the Anand Cine Service, leaving it to the Court to have a comparative study of the signatures in the original invoice with the bogus one. It would also be pointed out that there is no round seal of the company affixed but only the contents are identical. The learned counsel would exhort that by creating these documents, the financier is claiming that they have taken possession of the vehicle whereas they have no right to touch the vehicle at all.
12. On the other hand, the learned counsel appearing on behalf of the financier would cite the photostat copy of the agreement and would clarify that the financer is the owner of the vehicle. He would also show the repayment schedule and the invoice on the letter head of Anand Cine Services. The learned counsel would orally allege that different invoices under different contracts have been entered into by the defacto-complainant.
13. The learned counsel for the financier would then point out that the respondent Police have registered two FIRs. in one and the same Cr. No. 357/2003 further pointing out that excepting the crime number, in both the FIRs, all other entries are different including the provisions of law under which the case has been registered. The learned counsel would exhort that this itself is sufficient to prove the mala fide intention with which the case is registered against the finance company and would say that it is mere abuse of process of law, which cannot form the basis of the investigation. At this juncture, the learned counsel would also cite the following judgments:
1) 2001(4)CTC 102 (CHARANJIT SINGH CHADHA AND OTHERS vs. SUDHIR MEHRA)
2) 1996 SCC (Cri) 281 (K.A. MATHAI ALIAS BABU AND ANOTHER vs. KORA BIBBIKUTTY AND ANOTHER)
3) 1979 SCC (Cri) 987 (SARDAR TRILOK SINGH AND OTHERS vs. SATYA DEO TRIPATHI)
14. In the first judgment cited above, in a case of hire purchase agreement containing a clause empowering the owner to repossess the vehicle in case of default by hirer and on the hirer committing default, the owner repossessed the vehicle, the Honourable Apex Court has 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 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 .... The complaint and any other proceedings initiated pursuant to such complaint are quashed."
15. In the second judgment cited above, in a case where a bus purchased by A.2 under a hire-purchase agreement was sold to the complainant and when the complainant defaulted in payment of instalment to the financier, the financier took possession of the bus with the help of A.1 and A.2 and the Honourable apex Court has held:
"Financer has right to resume possession even if the agreement does not contain a clause of resumption of possession and the offence of theft not made out."
16. In the third judgment cited above, in a case wherein the truck sold under hire-purchase agreement was seized by the financier on default in payment of instalment and buyer launched criminal prosecution, the Honourable Apex Court has held:
"The launching of criminal prosecution by the buyer was an abuse of process of the court since the dispute was essentially of a civil nature."
17. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, what comes to be established is that from among the above three criminal original petitions, the third and the first in the row have been respectively filed by M/s. Anand Cine Service and its driver of the vehicle bearing Registration No. TSD 8002 particularly on the date of occurrence 13.2.2003.
18. The second petitioner/financier company is alleged to have made financial assistance to M/s. Anand Cine Service at the time that they purchased ten vehicles a total sum of Rs. 90 lakhs on agreement and on certain terms and conditions and the mode of repayment etc. On the part of the finance company, the second petitioner above, it would further be submitted that there are conditional clauses inserted in the agreement to the effect that in case of default in the repayment, the financier would become the owner of the vehicle further becoming entitled to possession of the same and giving effect to the said clauses, since the third petitioner committed the default in the payment of the financial arrangement made by the second petitioner, the finance company would argue that they have taken possession of the vehicle on 13.2.2003.
19. On the part of the third petitioner, it would be vehemently argued that the entire loan amount borrowed from the second petitioner had been repaid as stipulated in the agreement and there is absolutely not a pie they are in arrears and that on the date of occurrence, when the said vehicle was proceeding to their office at No. 3, Sarangapani Street, T. Nagar, Chennai-17 to collect the log-sheet on their way to the shooting spot and when the driver was taking a turn from Kodambakkam High Road in front of Vidyodaya School at Tirumalai Pillai Road, the second petitioner engaging some unruly elements not only waylaid the vehicle but also by force and under severe threat, they even assaulted the driver and took the vehicle and the cene equipments to an unknown destination near Ekaduthangal and ultimately the driver and the assistants were released but the vehicle was taken with them as a result of which the driver, as the first petitioner, for his personal sufferings of assault and for the acts perpetrated in deliberately snatching the vehicle from out of his possession engaging goondas and the third petitioner, for having taken away their vehicle in the manner that the second petitioner has done, have given separate complaints before the concerned police within whose jurisdiction the vehicle had been snatched and they have filed the first and the third criminal original petitions praying for a direction to the respondents to sternly deal with the accused and investigate into the complaints lodged by them causing the arrest of the accused named therein and could be identified thus prosecuting them in accordance with law. On the contrary, the financier would also file the second criminal original petition seeking to quash the case registered in Cr. No. 357/2003 on the complaint of the driver of the vehicle.
20. In the above circumstances, the point for determination is `whether the registering of the case in Cr. No. 357/2003 by the respondent E3 Teynampet Police on the complaint of the driver of the vehicle is just and proper or whether the same has to be quashed as it is sought for on the part of the financier/the second petitioner and whether a separate case has to be registered on the complaint lodged by the Anand Cine Service for the alleged occurrence dated 13.2.2003 in the second petitioner deliberately taking the forcible possession of the vehicle in the manner alleged by the other two petitioners?'
21. It is an admitted fact that the second petitioner being the finance company had provided with the loan of Rs. 90 lakhs to the third petitioner for the purchase of 10 vehicles. But, the third petitioner would come forward to submit that he has completely repaid the loan and there is absolutely no arrears at all. Since there is a dispute, no doubt, it has to be resolved elsewhere and not before this Court. Now, the point for consideration is `whether pursuant to this dispute, the act admittedly perpetrated on the part of the second petitioner in engaging its unauthorised persons and taking forcible possession of the vehicle from the driver when the vehicle was going to their office in the morning of 13.2.2003, is just or proper and whether the same could be ratified by the Court or whether the second petitioner and its Managers who are responsible for such acts become liable to be dealt with in accordance with the penal provisions of law?'
22. It may be the case of the second petitioner finance company that there was a written agreement entered into in between itself and the third petitioner according to which if there are defaults in the repayment of schedule agreed upon by the third petitioner, the second petitioner would not only become the full-fledged owner of the vehicles mentioned therein but also would become entitled to get possession of the same. But, when the third petitioner denies this statement, even though it agrees to the terms and conditions of agreement but ascertaining that there is absolutely no arrears of loan obtained from the second petitioner, is it proper on the part of the second petitioner to have acted in the manner alleged on 13.2.2003 in taking forcible possession of not only the vehicle, which is subject to the agreement but also the cine equipments kept inside the vehicle estimated at Rs. 1.18 crores by the third petitioners regarding which the admitted case of the second petitioner is that there is no agreement binding in between the parties but still retained in their illegal custody.
23. Needless to mention that we are in a society governed by laws and for any claim made, only the proper forums established by law should be resorted to for remedy and the rule being that in matters of such nature, since there is a dispute between the parties, it would have been only appropriate on the part of the second petitioner to have initiated civil proceedings either for the recovery of the money or for taking possession of the vehicle as it is alleged to have been contemplated in the agreement and since these allegations are not accepted by the third petitioner/ borrower stating that they have cleared the entire amount due to the second petitioner, this dispute has to be resolved by the civil forum in the manner provided by law following the procedures and the decision of the civil Court is final.
24. Even regarding taking possession of the vehicle, it is the same civil court which could make an order and the rule in this regard is unless by due process of law or by the procedures established by law, by no other means, parties could take it for granted that they could take the law into their own hands and do things accordingly laying emphasis on the terms of agreement entered into by parties particularly when the compliance of the same is claimed by the other side and therefore the manner in which the second petitioner has acted in deliberately taking possession of not only the said vehicle that was in custody of the third petitioner ambushing the first petitioner driver is undoubtedly illegal and the respondent police are perfectly right in registering the case on the complaint of the first petitioner and taking up the same for investigation.
25. However, it is brought to the notice of this Court that in one and the same crime number, two FIRs. have been registered by the E3 Teynampet Police, which cannot happen in any case and in such event, the learned counsel for the second petitioner would argue that it is only an abuse of process of law and such FIRs. cannot form the basis for the investigation or trial. When such a situation is met with, it is also not prudent to decide that the occurrence has absolutely no basis as it has been argued on the part of the learned counsel for the second petitioner/financier thus allowing the accused to go scotfree. In these circumstances, it is only desirable to order to carry on with the investigation on the original FIR ignoring the second FIR, which cannot have any existence or authenticity and the same becomes only liable to be scraped and the same is decided accordingly.
26. So far as the judgments cited on behalf of the second petitioner/financier are concerned, in the first judgment cited above, it had been brought to the notice of the Honourable Supreme Court that the cheque issued by the hirer for a sum of Rs. 84,000/= was dishonoured by the bank and the financier had filed a criminal complaint under Section 138 of the Negotiable Instruments Act wherein the Honourable Apex Court being convinced of the default committed by the hirer has rightly held that there had been no element of theft or dishonest intention either for wrongful gains for themselves or to cause wrongful loss to the hirer since the dishonest intention which is essential element to constitute an offence of theft cannot be attributed to a person exercising his right under the agreement of default of payment and therefore since the financier continued to be the owner of the vehicle and in right exercise of his authority to repossess the vehicle under the hire purchase agreement he has taken the vehicle, no offence of theft could be contemplated against him.
27. But, this position as found by the Honourable Apex Court in the said judgments is not prevalent in the case in hand since primarily on the part of the finance company/the second petitioner herein, no evidence has been placed in a reliable manner for the default alleged to have been committed on the part of the third petitioner company with not even a notice issued nor indicating anywhere that they are in default or in arrears of payment of the monthly instalments which should have been over by 30.4.2002. However, they would cite the photostat copy of the agreement and the invoice but the signatures of the authorised signatory of the third petitioner company are different thereby only consolidating the argument of the other side that they are self-prepared and bogus documents. Barring these, nothing else is placed before this Court for proper appreciation to the effect that either the third petitioner is in default or in arrears of the hire purchase agreement thereby consolidating only the arguments of the third petitioner cine service that there is no question of the hire purchase agreement in existence since they have repaid the entire hire purchase due. Therefore, it is the strong case put up on the part of the third petitioner that the tie in between the financier and themselves pertaining to the hire purchase agreement has been snapped on payment of the dues and therefore even regarding the vehicle, there is no agreement in force and the question of terming the third petitioner as defaulter does not arise at all. While such being the factual position of the case, since there is no relationship in between the second petitioner and the third petitioner as financier and the hirer, the propositions held by the Honourable Apex Court in the second and third judgments cited above also do not become applicable to the case in hand, which has to be dealt with on different parlance.
28. In the above circumstances, yet another important aspect awaiting vital consideration in the case in hand is that it is not only the vehicle but also the cine equipments worth Rs. 1.18 crores which were kept inside the vehicle for service have been taken forcible possession of by the second petitioner financier which fact has not at all been denied by the second petitioner finance company for which he has absolutely no right or authorisation in any manner and it is not only a frontal illegality but also an atrocious act committed on the part of the second petitioner finance company taking the law into their own hands.
29. Therefore, though this Court is in perfect agreement of the propositions held by the Honourable Apex Court in the judgments cited above, still, the facts and circumstances encircling the case in hand are entirely different in the sense that there is no positive proof placed on record on the part of the second petitioner for the third petitioner to have defaulted in payment of the hire purchase agreement entered into in between them which according to the payment schedule should have been over in April, 2002 which is claimed to have been cleared in full on the part of the third petitioner hirer. The theory of the second petitioner that the third petitioner is in arrears of the dues so as to brand the third petitioner a defaulter is difficult to believe since no valid materials have been placed on record, not even a notice of demand issued to the third petitioner in this context. Therefore, the only conclusion that could be arrived at regarding this claim of the second petitioner is that the dispute has to be resolved by the Court of original civil jurisdiction without which the second petitioner cannot indulge in such acts as it had perpetrated on the date of occurrence in forcibly taking possession of not only the vehicle but also the cine equipments worth more than a crore of rupees which are lawfully belonging to the third petitioner over which admittedly the second petitioner finance company does not have any right and hence it is only proper on the part of the police to register the case and investigate in order to give a disposal to the complaint of the third petitioner dated 13.2.2003. In these circumstances, the legal propositions validly held by the Honourable Supreme Court wherein the hirer has been concluded to be a defaulter, cannot, in any manner be applied to the facts of the case in hand.
30. Further more, so far as the first complaint is concerned, the first petitioner who is the driver of the vehicle has lodged the complaint not only for the personal assault carried out against him but also the plucking of the vehicle from out of his possession with whom the same was entrusted by the third petitioner for safe custody and on such personal injuries sustained in taking forcible possession of the property from him, the first petitioner has lodged the complaint and therefore it is a matter that the respondent police have to register a case and investigate into and hence the criminal case registered and investigated into by the respondent police cannot be challenged.