Gauhati High Court
Shri Uma Shankar Mishra vs M/S Family Credit Limited & 5 Ors on 31 October, 2017
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
Crim inal Petition No.925 of 2016,
Crim inal Petition No.329 of 2017
Crim inal Petition No.1026 of 2016
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
Date of hearing : 15.9.2017 & 20.9.2017
Date of Judgment : 31.10.2017
A.Crim inal Petition No.925 of 2016,
Shri Uma Shankar Mishra,
son of Late Dr. Jeet Nath Mishra
& late Promila Mishra,
resident of House No.40, Janapath Road,
opposite Naam Ghar, Dispur to Hatigaon Road,
Guwahati-781 038, P.S. Hatigaon,
District-Kamrup (M), Assam.
.... Petitioner
-Versus-
1. M/s Family Credit Limited,
A company registered under the Indian
Companies Act, 1956 and a wholly owned
subsidiary of L & T Finance Holdings Limited,
represented by its Director, Law College Road,
Deccan Gymkhana, Pune, Maharashtra-411004.
2
2. M/s Family Credit Limited,
a wholly owned subsidiary of L & T
Finance Holdings Limited,
Plot No. 4, Block-BP, Sector-V, Salt Lake
Kolkata-700091.
3. M/s Family Credit Limited,
a wholly owned subsidiary of L & T
Finance Holdings Limited,
Present address at D.D.Tower Building,
Near Christian Basti Church, G.S.Road,
Guwahati-781005.
4. The Marketing Manager,
M/s Family Credit Limited,
a wholly owned subsidiary of L & T
Finance Holdings Limited,
Present address at D.D.Tower Building,
Near Christian Basti Church, G.S.Road,
Guwahati-781005.
5. L & T Finance Holdings Limited,
Plot 177, CST Road, Kalina,
Mumbai- 400098
(Near Mercedes show room)
6. The State of Assam
..........Respondents
For the petitioner : Mr. D.Goswami, Advocate
For the State Respondent : Addl. P.P.Assam,
For the Private Respondent : Mr. K. Das, Advocate
Nos. 1 to 5 : Mr. P. Neog, Advocate
Mr.S. Khound, Advocate
3
Mr. P. Chetia, Advocate
Mr. S.D.Choudhury, Advocate
B.Crim inal Petition No.329 of 2017
1. L & T Finance Holdings Limited,
Plot 177, CST Road, Kalina,
Mumbai- 400098
(Near Mercedes show room)
2. M/s Family Credit Limited,
a wholly owned subsidiary of L & T
Finance Holdings Limited,
Present address at D.D.Tower Building,
Near Christian Basti Church, G.S.Road,
Guwahati-781005.
3. The Marketing Manager,
M/s Family Credit Limited,
a wholly owned subsidiary of L & T
Finance Holdings Limited,
Present address at D.D.Tower Building,
Near Christian Basti Church, G.S.Road,
Guwahati-781005.
....Petitioners
-Vs-
1. State of Assam
2. Shri Uma Shankar Mishra,
son of Late Dr. Jeet Nath Mishra
late Promila Mishra,
resident of House No.40, Janapath Road,
opposite Naam Ghar, Dispur to Hatigaon Road,
Guwahati-781 038, P.S. Hatigaon,
4
District-Kamrup (M), Assam.
3. Shri Ratul Das,
Son of Bhuban Chandra Das,
Right Side of N B H Way,
House No. 02, Behar Bari,
Samitrapur, back side of AG Colony,
Beltola Basistha, Kamrup,
4. Shri Sanjay Kataki,
Son of Sri Bubul Kataki, permanent
Resident of Jalukbari, PO- Brahmajan,
PS-Gohpur, District- Sonitpur,Assam.
......Respondents
For the petitioner : Ms. S. Sarma, Advocate
Ms. N. M. Deka,Advocate
Ms. M. Bhattacharyya, Advocate
For the State Respondent : Addl. P.P.Assam,
For the Private Respondents : Mr.D. Goswami, Advocate
C.Crim inal Petition No.1026 of 2016
Shri Sanjay Kataki,
Son of Sri Bubul Kataki, permanent
Resident of Jalukbari, PO- Brahmajan,
PS-Gohpur, District- Sonitpur,Assam.
......Petitioner
-Vs-
1. State of Assam
2. Shri Uma Shankar Mishra,
5
son of Late Dr. Jeet Nath Mishra
late Promila Mishra,
resident of House No.40, Janapath Road,
opposite Naam Ghar, Dispur to Hatigaon Road,
Guwahati-781 038, P.S. Hatigaon,
District-Kamrup (M), Assam.
3. M/s Family Credit Limited,
a wholly owned subsidiary of L & T
Finance Holdings Limited,
Plot No. 4, Block-BP, Sector-V, Salt Lake
Kolkata-700091.
4. M/s Family Credit Limited,
a wholly owned subsidiary of L & T
Finance Holdings Limited,
Present address at D.D.Tower Building,
Near Christian Basti Church, G.S.Road,
Guwahati-781005.
5. The Marketing Manager,
C/o M/S Family Credit Ltd.
a wholly owned subsidiary of L & T
Finance Holdings Limited,
Present address at D.D.Tower Building,
Near Christian Basti Church, G.S.Road,
Guwahati-781005.
6. L & T Finance Holdings Limited,
Plot 177, CST Road, Kalina,
Mumbai- 400098
(Near Mercedes show room)
........Respondents
6
For the petitioner : Mr. B. Gogoi, Advocate
Mr. N. Nayak,Advocate
Mr. D. Barman, Advocate
For the State Respondent : Addl. P.P.Assam,
For the Private Respondent : Mr.D. Goswami, Advocate
No. 2
For the Private Respondent : Mr.K.Das, Advocate
Nos. 3 to 6 Mr. P. Chetia, Advocate
Mr. S.D.Choudhury,Advocate
JUDGMENT & ORDER (CAV)
In all the above three petitions challenge has been made to the proceeding in
CR Case No.1686C/2016 under Section 379/427 IPC, and certain orders thereof
pending before the learned Addl. CJM, Kamrup and all the matters being heard and
disposed of by way of this common judgment.
FACTS OF THE CASE:
2. L & T Finance Holdings Limited engaged in providing finance for purchase of commercial goods by individuals. The M/s Family Credit Limited is a wholly owned subsidiary of L & T and on 5.7.2012 the Marketing Manager of M/s Family Credit Limited (as financer) entered into an agreement with Sri Ratul Das (as borrower) for financing a vehicle of Maruti Suzuki being Swipt Dzire model bearing registration no. AS-01 EC 0114 and upon failure of the borrower to repay his dues as on 16.10.2015 the vehicle was repossessed by the said financer as on 18.10.2015. All the documentation in respect of the vehicle is in the name of the borrower Sri Ratul Das and as such, said Ratul Das was informed by letter dated 28.10.2015 about the terminating of the original agreement dated 5.7.2012 with a request for immediate payment of the remaining dues within seven days in the tune of Rs.3,29,523.65. For 7 non response from the borrower on 12.1.2016 the said vehicle was auctioned and sold to one person namely, Sri Sanjay Kataki (auction purchaser).
3. On 16.5.2016 one Sri Uma Shankar Mishra (complainant) lodged a complaint vide CR Case No.1686C/2016 against the financer and marketing Manager etc. of L & T Company in the Court of learned CJM, Kamrup contending inter alia that he has entered into an agreement with the borrower Ratul Das whereby said Ratul Das has sold the vehicle to him upon receipt of an amount of Rs.1,80,000/- with condition that said Sri Uma Shankar Mishra (complainant) will pay further amount of Rs. 10,000/- and he will pay the remaining EMI of the vehicle hypothecated to the financer L & T Finance. It was agreed in the said agreement that after liquidation of the loan to the finance company, the registration of the vehicle would be transferred in the name of the wife of the complainant Sri Uma Shankar Mishra. Further case of the complainant is that after execution of the agreement dated 8.11.2012 with said Ratul Das, the complainant has been paying the EMI regularly to the Financer M/s Family Credit Ltd. and using the vehicle by appointing a driver. It is stated in the complaint petition that in the month of September, 2015 the complainant was requested by the financer to give the said vehicle on rental basis for the official use @ Rs. 45,000/- per month and also told him that they would deduct the EMI to be paid for the vehicle and balance would be credited in the account of the complainant, to which he agreed. They intimated him that such an agreement will be made with the borrower as he is the registered owner of the vehicle and thereafter they will take delivery of the vehicle from the complainant. But, however no such payment was made in his account and suddenly on 18.10.2015 the vehicle was taken away by the said financer company from the custody of his driver Kamal Lama along with all the important documents kept inside the vehicle along with the accessories like Music System, Air Conditioner, Wins screen, Floormat Etc and the same articles were not shown in the seizure list so prepared by the company. At the time of taking such vehicle as on 18.10.2015 the signature of the driver of the vehicle was taken on a document dated 7.10.2015 which is again stated to be an agreement between the financer and the borrower that said vehicle has been utilised by the financer on a monthly rental basis of Rs.45,000/- and after adjusting the EMI the balance amount shall be deposited in the bank account of the borrower Ratul Das (the document however, bears no signature of the borrower Ratul Das, and signature of driver was shown.
84. Raising the allegation of commission of theft and breach of trust etc. against the financer, the complainant Sri Uma Shankar Mishra lodged the aforesaid complaint case on 16.5.2016 which was registered as CR Case No.1686C/2016 U/S 379/403/406/427 IPC, and pursuant to the same the learned Magistrate after recording the statement of the complainant and two witnesses, took the cognizance of the offence U/S 379/427 IPC and issued process against the financer company. By order dated 24.8.2016 the learned Magistrate directed that the vehicle be given to the zimma of the complainant and accordingly vehicle was handed over to the complainant. The auction purchaser Sri Sanjay Kataki from whose possession the vehicle was seized filed a petition before the Court that he has purchased the aforesaid vehicle from the M/s Family Credit Limited for inability of the borrower to pay the EMI and prayed to the Court not to hand over the vehicle to the complainant and the learned Court by its order dated 23.11.2016 has rejected the prayer. This is all about the factual aspect of the matter behind all the cases.
Criminal Petition No.329 of 2017:
5. The financer company by challenging the very cognizance taken by the Court as well as the seizure of vehicle has filed the above Criminal Petition U/S 482 CrPC on the contention that the financer company has every right to repossess the vehicle for defaulting payment as per the hire purchase agreement that has been entered into between the financer and the borrower. They have duly intimated to the borrower about his default in payment and thereafter the vehicle was repossessed as per due procedure which was duly communicated to him on 28.10.2015 and subsequently the vehicle was given auction to a third person namely, Sanjay Kataki. In the entire process the borrower never informed the financer about the agreement dated 8.11.2012 between the said complainant and the borrower, and, as such, they were unaware about the same till initiation of the criminal proceedings. The so called agreement dated 7.10.2015 is stated to be a false and non-existent agreement as it bears no signature of the borrower and a manipulating one. It is challenged that giving of zimma of the vehicle to the complainant is wholly illegal, as he is a total stranger to all the transactions in respect of the vehicle financed by the financer to the original borrower/buyer and as such, the very basis of the complaint is nothing but a fraud by deceiving the rightful owner/auction purchaser from possessing the same. Accordingly a prayer has been made to quash the aforesaid complaint case right from taking 9 cognizance upto giving zimma of the vehicle to the said complainant without authority of law.
6. The respondent no.2 /complainant in the said complaint case, has filed his affidavit-in-opposition admitting all about the facts that one Ratul Das /Respondent No.3 purchased the said vehicle No. AS 01 EC -0114 on hire purchase basis with the financial assistance of the petitioner and the vehicle was registered and insured in the name of said Ratul Das but due to some financial difficulties as he could not repay the EMI so by an executing a deed of agreement with him on 8.11.2012 the possession of the vehicle was given to him along with relevant document on payment of Rs.2 lakhs and since then he is plying the vehicle by paying all the EMIs to the petitioner (Finance Company) which is very well known to them. It is stated further that in the year 2015 the officials of the petitioner told him that they want to use the said vehicle on rental basis for official use on monthly rent of Rs.45,000/- and monthly EMI of Rs.11,561/- will be adjusted against the said EMI and rest should be deposited in his account, to which he agreed. It was apprised to him that as the Ratul Das was the registered owner of the vehicle so the petitioner would executed an agreement with Ratul Das for the purpose and thereafter they would take the delivery of the vehicle from him in the 2nd week of October, 2015.
7. But suddenly on 18.10.2015, the petitioner company repossessed the vehicle from the driver of the vehicle, Kamal Lama by taking his signature on some documents and one of the document dated 7.10.2015 was given to the driver which is stated to be the agreement between the petitioner company and said Ratul Das, but there was no signature of Ratul Das. After taking over the vehicle by the petitioner as on 18.10.2015 on a query made by the said Uma Shankar it was apprised by the petitioner that as the car was urgently needed by them so they have to take delivery of the same and however assured that in terms of the agreement balance money of rent will be credited in his account. But as no money was credited in his account since thereafter, on his approach as on 9.5.2016 to the office of the petitioner they had denied any such type of agreement for rent of the vehicle or about adjustment of EMIs. After the said incident he filed the complaint before the Court narrating all the facts the learned trial Court after taking cognizance of the offence U/S 379/427 IPC has seized the vehicle in question and given it to his zimma on his prayer. He also filed a money suit no. 173/17 now pending against the petitioner claiming his dues under the agreement dated 10 7.10.2015. It has been contended that he as well as said respondent no.3 Sri Ratul Das has been paying EMI regularly to the petitioner and no notice was ever served upon them intimating about the non-payment of EMI in respect to the vehicle so the repossession by the petitioner company is bad in law.
8. The Respondent No.3 Sri Ratul Das is the borrower as well as the registered owner of the disputed vehicle in question, who in his affidavit-in-opposition admitted all about the purchase of the aforesaid vehicle on hire purchase agreement with the financial assistance of the petitioner and that the vehicle was registered and insured in his name. In support of the contention that has been raised by the respondent no.2/Sri Uma Shankar (the complainant in C.R.Case) it has been submitted that after purchase of the vehicle he entered into an agreement with Sri Uma Shankar as on 8.11.2012 and after execution of the said document said Uma Shankar was given possession of the said vehicle on payment of some money, along with relevant documents to use the said vehicle by paying the EMI. Since then said Respondent No.2 is paying the EMI regularly. On 18.10.2015 the Respondent No.2 informed him that the petitioner has taken the vehicle on rent by furnishing him a copy of agreement dated 7.10.2015 stated to have been executed between him and the petitioner and the same bear the signature of the driver Kamal Lama. It is stated that he was never served with any notice, intimating about the default of EMI nor about the factum of repossession or about the auction sale. Then he came to know about the complaint case filed by the respondent no.2 and he also appeared in the said case as a witness supporting the case of the respondent no.2. He knows all about the seizure of the vehicle and giving zimma of the same to the respondent no.2 on the strength of the order of the learned Court after taking cognizance. It is stated that he filed the Money Suit No. 173/17 through respondent no.2/ power of attorney holder claiming damages and dues in terms of the agreement dated 7.10.2015.
Crim inal Petition No.925 of 2016
9. The complainant who lodged the complaint case, CR Case 1686C/2016 has filed the above petition U/S 482 CrPC challenging the order of the learned Addl. Chief Judicial Magistrate dated 16.8.2016 contending that the learned trial Court in addition to the cognizance, taken under Section 379/427 IPC, the Court should have also taken the cognizance U/S 403/406 IPC. By referring to the whole facts as narrated in this complaint petition, (that has been discussed above) it has been contended that as 11 after the execution of agreement dated 8.11.2012 between him and one Ratul Das (purchaser) as he is paying the EMIs of the vehicle to his financer i.e. L & T Finance through family credit and subsequently by executing a agreement dated 7.10.2015 the said financer company taken the same from him on rental basis. But on 18.10.2015 the vehicle was repossessed by the company and it is stated that by breaching the trust of the petitioners they have seized the vehicle for defaulting payment of EMI. In such premises the learned trial Court should also took cognizance U/S 403/406 IPC against the financer company and accordingly it is prayed to direct the Court to take cognizance of offences U/S 403 and 406 IPC along with Section 379/427 IPC.
Criminal Petition No.1026 of 2016
10. The petitioner Sri Sanjay Kataki is the auction purchaser of the aforesaid vehicle. It is his case that he earned his livelihood by plying tourist taxi and with his hard earned money he purchased the Maruty Swift Dzire vehicle bearing registration No. AS 01 EC -0114 on auction purchase on 2.1.2016 from Family Credit Ltd., a wholly owned subsidiary of L & T Finance Holdings at an amount of Rs. 1,50,100/-. After purchase of the vehicle due to pending formalities of the auction seller and also due to ban on registration of vehicles pursuant to some orders passed by the Hon'ble Gauhati High Court the vehicle could not be registered in his name although he applied for the same and in the meantime but on 19.9.2016 the Dispur Police seized the aforesaid vehicle in pursuance of the search order passed by learned Addl.CJM, Kamrup and as per the direction of the Court the said vehicle was given in the interim zimma to the complainant.
11. He came to know only thereafter that one Uma Shankar Mishra lodged the CR Case 1686C/2016 raising the allegation that on 18.10.2015 the Finance Company deceitfully seized the aforesaid vehicle from his driver in his absence on the plea of defaulting payment of EMI. In the said petition complainant has alleged that he purchased the vehicle from one Sri Ratul Das by entering into a deed of agreement with a condition that he will pay the EMI and when the loan is over the said vehicle will be registered in his name. However, the present petitioner is not made an accused in the said complaint case. It has been contended by the petitioner that the same complainant Uma Shankar being not registered owner of the vehicle, cannot claim the ownership of the vehicle as the vehicle was registered in the name of Sri Ratul Das and same was purchased under hypothecation with Family Credit Limited. Although by 12 its order dated 24.8.2016 the learned trial Court by referring to the definition of owner as envisaged in Section 2 (30) of the Motor Vehicles Act treated the complainant as deemed owner of the vehicle while giving zimma of the seized vehicle to him but same has been made by misinterpretation of the provision of law.
12. Accordingly it is contended that the said complainant Uma Shankar is neither the registered owner nor his name appears in any hire purchase agreement/ agreement of lease/ agreement of hypothecation and by no means he can be termed as an owner U/S 2(30) of the M.V.Act. and the complainant cannot claim ownership of the vehicle which was under the hypothecation in the name Sri Ratul Das. The Finance Company has every right to re-possess the vehicle on default in payment of EMI by Sri Ratul Das. It has also been contended that after the re-possession of the vehicle by the finance company after due intimation on 28.10.2015 and the said Ratul Das never come to the financer to claim the vehicle by making good the balance amount. In the premises the petitioner being the most effected party for not impleading him in the said case has prayed for quashing the order of taking cognizance taken by the learned trial Court in the aforesaid C.R. Case and all the orders passed by the Court and has submitted that he is the bonafide purchaser of the vehicle in question and has prayed to quash the aforesaid complaint case and different orders whereby the Court has taken cognizance, issued search warrant and has given the zimma of the seized vehicle to the complainant.
13. The said complainant Uma Shankar Mishra, who has been made Respondent No.2 in the present case filed his affidavit-in-opposition narrating all the facts that has been given in his complaint petition (which need not be mentioned, as it is the repetition of the complaint petition as mentioned above). However, it has been contended that the learned trial Court has rightly taken the cognizance of the offence and has seized the vehicle in question and given zimma of the vehicle to him. According to him, the petitioner never purchased the said vehicle from the Family Credit Limited and he has no locus standi to challenge the case as he is not an accused in the complaint petition and the learned trial Court has rightly rejected the prayer for zimma of the vehicle to the petitioner.
14. I have given due consideration to the argument advanced by the learned counsel for the parties. According to Ms. S. Sarma, the learned counsel for the petitioner i.e. the L & T Finance, in whose assistance the vehicle in question was 13 purchased by the respondent Ratul Das on hire purchase agreement with the petitioner company and as per all available documents on records, the said Ratul Das alone entered into the hire purchase agreement dated 5.7.2012 with the petitioner company and he is the registered owner of the vehicle and the same is also insured in his name and all the repayments/EMI has been made by the said Ratul Das. There is no any document whatsoever that the said complainant paid the EMI to the petitioner company under any authority of borrower as all the receipts issued in the name of Ratul Das and the petitioner company was not made aware about such agreement entered into between the parties, as has been contended in the complaint petition. That being the position, in terms of the hire purchase agreement, due to the default of payment the petitioner company has rightly repossessed the vehicle in question with prior intimation to the borrower. They are however not concerned as to who deposited the EMI on behalf of borrower and who was plying the vehicle at the time of seizure.
15. The learned counsel for the respondent no. 2, Sri Uma Sankar Mishra has however contended that as per the agreement entered with the registered owner Sri Ratul Das with Sri Uma Shanka Mishra on 8.11.2012, all the EMIs have been paid by Uma Shankar and in the receipts issued in this regard reveals the name of Uma Shankar as the depositors of the EMIs, although receipts were issued in the name of Ratul Das vide Annexure- 4 series since 5.12.2012 to 30.9.2015. That apart, the learned counsel for the said Uma Shankar has also referred to the Passbook A/c of Sri Uma Shankar to show that the amount of loan has been disbursed to the said finance company on account of EMI. Further they also tend to rely upon the documents stated to be executed as on 7.10.2015 between the financier and the borrower to reflect about the taking of vehicle on rental basis from said Uma Shankar which according to them justify the ownership and the possession of the vehicle by him.
The learned counsel for the petitioner Mr. Sanjay Kataki submits that said petitioner being the lawful owner of the vehicle he should be given the custody of the vehicle.
16. I have verified all the documents that have been annexed with the petitions as well as the pleadings between the parties. From all the matters on record it is found to be an admitted position that the vehicle was purchased by said Ratul Das on hire purchase agreement and as such he is bound by the terms and condition of the hire purchase agreement. In the course of hearing the said agreement has been produced 14 before this Court although the same was not submitted before the trial Court and such an admitted document can be looked into. As per the Article 9.11, 9.12 of agreement the financer has the right to repossess the vehicle in the event of borrowers fails to perform any of his obligation/default etc. and that borrower cannot sell /alienate or transfer or dispose of such vehicle during the subsistence of the agreement. However, the borrower can make payment of the dues even after such recovery to the satisfaction of the financer.
17. Now in the instant case, the borrower Ratul Das has executed agreement in the form of sale deed to said Uma Shankar by taking money of Rs.2 lakhs with an undertaking that said person to repay the EMI, but such an agreement was never made known to the financer company and hence said agreement is void- ab-initio, as it is violative of the hire purchase agreement.
In 1994 (Suppl) (1) SCC 507 Manipal Finance Corporation Ltd. -vs- T. Bangarappa & anr, in a given fact situation when the Manipal Finance Corporation (financer) took possession of the vehicle which was financed on the basis of hire purchase agreement from the possession of the hirer for his default in repayment of instalments, the hirer lodged a complaint of theft as against the financer and the Hon'ble Supreme Court held as below:
" The appellant had under the terms of the hire purchase agreement taken the possession of the vehicle while observing that prima facie this action would be supported by the contract, the learned Magistrate directed that the vehicle to be returned to hirer on a mere indemnity bond. It is surprising that without making good of charge of theft, the hirer by using the state instrumentality namely police obtained possession of the vehicle and the custody for the order of the learned Magistrate without making good of his allegation that he was deprived of the possession of the vehicle by theft. We are indeed surprise at the approach of the Court 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 order will not prejudice the civil right of the parties".15
18. In an hire-purchase agreement the article is let on hirer and hirer has an option to purchase the goods in accordance with the hire purchase agreement. In Charanjit Singh Chadha and ors -vs- Sudhir Mehra 2001 7 SCC 417 it has been held that ordinarily a contract of hire purchase, confers no title on the hirerer but a mere option to purchase the hired goods on fulfilment of certain conditions. But a contract for hire purchase may also provide for the agreement to purchase the things hired by deferred payment subject to condition that title to the things shall not pass until all instalments have been paid. In Charanjit Singh Chadha (supra) the Hon'ble Supreme Court has pointed out that when a financer as owner repossess a vehicle from the hirerer pursuant to the hire purchase agreement, the element of dishonest intention which is the ingredient of theft is lacking and such taking away of the vehicle by the financer as owner could not constitute the offence of theft for the financer as owner, takes away such vehicle in exercise of his right under an agreement entered between the parties. When it is specifically provided in the agreement of hire purchase entered into between the parties, prescribed a particular procedure which they are to adopt and specify the names which may they may use to resolve such situation, they are bound by those terms of the agreement. If the terms and conditions of the agreement is not found to be contrary to law then the compliance of conditions of such agreement is lawful and other party cannot complain of foul play for implementing the condition of such agreement.
19. On the aspect as to whether the act of financer taking repossession of the vehicle under hire purchase agreement amounts to theft, has been dealt with in catena of decisions. In the present case in hand, the application has been made to quash the proceeding of the complaint case on the said issue that the repossession of vehicle on the default of the hirer/ borrower cannot amount to theft. As such, let us discuss certain decisions on the subject. In Sardar Trilok Singh -vs- Satyadew Tripati, (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 forcefully removed the truck and thereby committed the offence of decoity. The police investigated a 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 but the same was dismissed. Thereafter the accused filed a petition U/S 482 CrPC to quash the proceedings. That was summarily dismissed by the High Court then the matter reached the Supreme Court at the instance of the accused it was held as follows-
16"5. We are clearly of view that it is 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 financer 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 instalment in time. It was, therefore, a bona fide civil dispute which led to the seizure of the truck.
In a similar situation in K.A. Mathai-vs- Kora Bibibi Kutti (1996) 7 SCC 212 and Managing Director Orix Auto Finance (India) Ltd -vs- Jajmander Sing 2006 2 SCC it has been held that in case of hire purchase agreement when a financer take possession of a vehicle from the hirer due to default in payment of instalments, there is no impediment on the part of financier to take possession of the vehicle and such possession cannot amount to offence of theft.
Referring to the aforesaid decision of Sardar Trilok Singh (supra), K.A.Mathai (supra) Charanjit Singh Chada in a recent decision 2013 1 SCC 400 in Anup Sarma -vs- Bholanath Sarma and ors, the same position has been reiterated that in an agreement of hire purchase, purchaser remains mere a trustee/bailee on behalf of the financer and ownership remains with the financer. Thus in case vehicle is seized by the financer no criminal action can be taken against him as he is repossessing the vehicle owned by him.
20. To constitute an offence U/S 379 the necessary ingredients is to be made out that - (1) moving of a movable property out of his possession without his consent (2) such moving of the property being taken with dishonest intention. Hence mere taking away a property of 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. The definition of dishonestly as per Section 24 of IPC prescribes that whoever does anything with intention to cause wrongful gain to one person or 17 wrongful loss to another. It is to be noted that in the cause of wrongly gain or wrongful loss, the person taking the property is not to be the person legally entitled to acquire the property and the means adopted by him to acquire the property is also unlawful. When a person is in possession of the property to which he is legally not entitled he cannot suffer wrongful loss if the property is taken away by the person who is legally entitled thereto. Accordingly when in terms of the hire purchase agreement the financer requires the right to repossess the property there is a corresponding loss to the right to retain the property by the hirer. In such event when the financer 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 case when the offence of theft is alleged against the financer who has provided the finance under the hire purchase agreement, the complainant prima facie has to make out the following-
(1) The accused as financier is not entitled to repossess the vehicle, (2) That the vehicle was repossess by unlawful means, (3) Taking away of the vehicle was without the consent of the complainant.
21. In the given case the complainant failed to make out any of the case as mentioned above and admittedly he is a stranger to the transaction that has been made between the financier and the borrower and it is not on record that the receipt of the EMI was issued to him and at no point of time the financer was informed about the agreement entered into between the said complainant and the original borrower. As such the petitioner company/financer is not under any obligation recognize him as a party to the hire purchase agreement. On record the said complainant has no locus to challenge the hire purchase agreement entered into between the parties as well as the taking of repossession by the financer company. All the receipts were issued in the name of original borrower the Sri Ratul Das, no matter whoever be the depositor of the EMI. Only because of the agreement entered into between the complainant and the borrower silently without intimation to the financer, it cannot create any sort of right/ownership over the vehicle by the complainant. Some sort of story that has been made out by the complainant as regards the taking of said vehicle on rental basis from him and against the adjustment of the EMI which is again not on the basis of any sort of document; cannot confer any right upon the complainant to raise any sort of claim as against the petitioner/financer not to speak of entrustment. The document dated 18 7.10.2015 cannot confer any right upon the complainant which bears no signature of the borrower and the financer, but it bears the signature of the driver. No financer company will enter into an agreement with a driver of the vehicle regarding rental etc. and such a document itself is devoid of any merit.
22. Further the circumstances under which the said deed dated 07.10.2015 was given to the driver is also totally doubtful. As stated by the complainant the same was given to the driver after taking delivery of the vehicle as on 18.10.2015. Is it a acceptable story to any prudent person ? More so, the complainant after such forceful repossession of the vehicle as on 18.10.2015 made no any complaint in any corner and choose to file the complaint as on 16.5.2016, with a story which is again not supported by any document.
23. Turning to the case of the other respondent i.e. the original borrower it is found that because of the role played by him all the troubles has started and he became the witness to the said complainant only to absolve him from the liability with the financer. He cannot escape from such liability by taking shelter under the unlawful agreement made with the complainant, which is violative of hire purchase agreement and has not ensured the repayment of the loan. The grievances of the complainant is to be redressed by said borrower Ratul Das and also the finance company could play a part to resolve the issue, had the said borrower duly appraised all the factual aspect to the petitioner company. The said borrower cannot transfer the vehicle as he himself has not obtained the exclusive title/ownership of the vehicle until repayment of the EMI.
24. Another important aspect to be noted that the learned trial Court while taking the cognizance of the offence was well aware of the fact that the vehicle was under
hire purchase agreement with said Ratul Das and during the existence of the hire purchase agreement the complainant was allowed to take possession of the vehicle but he was not the registered owner. The learned trial Court by referring to Section 2(30) of the Motor Vehicles Act, treating him to be the owner of the vehicle has given the zimma of the vehicle to him which is not at all proper. As per the aforesaid provisions owner means a person in whose name Motor vehicle stands registered and when such person is minor, the guardian of the minor in relation to the Motor Vehicle which is subject matter of hire-purchase of agreement, or an agreement of lease, or an agreement of hypothecation, the person in whose possession the vehicle under the 19 Agreement. But in the instant case the said complainant was neither the registered owner of the vehicle nor the person under hire purchase agreement so he cannot be termed as owner of the vehicle within the purview of Section 2(30) of M.V.Act.
25. From what has been discussed above, it is discernible that despite the revealment of the complainant all about the fact that the said borrower Ratul Das is the registered owner of the vehicle and the financer has repossess the vehicle from the driver of the complainant, the cognizance taken by the Court under Section 379/427 IPC is bad in law. It is the duty of the Court to be satisfied that the charge of theft is prima facie made out before taking cognizance of the offence or prior to giving custody of the vehicle, which is not adhered to, by the learned trial Court. The petitioner (the complainant Uma Shankar) who is not under any contract/agreement with the financer while dealing with the vehicle cannot claim about the entrustment of the vehicle, so the question of taking cognizance U/S 403/406 IPC does not arise. The financer company has already acknowledged that the vehicle in question has been sold to the auction purchaser Sanjay Kataki by due process of law and who has also made a claim of the vehicle before the trial Court as well as has filed the present petition before this Court and in such backdrop giving zimma of the vehicle to the complainant by the Court, only on mere statement of said complainant is not proper and legal.
26. In the result, the order of zimma given by the Court to the complainant is hereby quashed and set aside and in consequence thereof, it is hereby directed that the vehicle in question be restored to the possession of the person from whom it was seized. However, the complainant can raise all the grievances as against the original owner of the vehicle towards redressal of his grievances by way of civil remedies, if so advised.
27. It crystallizes from the above findings and discussions that further continuance of the aforesaid complaint case before the Court below is nothing but abuse of process of law and as such as per provisions of Section 482 CrPC the proceeding of the C.R.Case No. 1686C/2016 under Section 379/427 IPC, pending before the learned 20 Addl. CJM, Kamrup is hereby quashed and set aside. This will answer all the petitions accordingly.
All the petitions stand disposed of.
JUDGE Nandi