IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.2045 OF 2006. WRIT PETITION NO.2045 OF 2006. WRIT PETITION NO.2045 OF 2006. Sau. Jyoti Jivandas Shaha. ..Petitioner. versus Shri Pravin Pandit & Anr. ..Respondents. .... Mr. Ganesh Gole, for the Petitioner. Mr. Subodh Desai, for the Respondent No.1. Mr. Y.S.Shinde, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 30TH AUGUST,2008. : 30TH AUGUST,2008. : 30TH AUGUST,2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. I have heard the submissions of the learned Counsel appearing for the parties on the last date. With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it will be necessary to refer to the facts of the case. The Petitioner filed a private complaint against the first Respondent alleging commission of offences under section 379, 384, 403, 420 and section 24 of the Indian Penal Code. The Petitioner claims to be the Owner of the Tata Sumo vehicle bearing No.MH-11-HO-8065 (hereinafter referred to as "the said vehicle"). According to the case of the Petitioner, while purchasing the said vehicle he had - 2 - taken advance from M/s Tata Finance Limited. The first Respondent is the Recovery Manager of the said Finance Company. The case of the Petitioner is that he had handed over post-dated cheques to the said Finance Company for payment of instalments. According to the case of the Petitioner, the entire amount payable by the Petitioner towards the loan has been received by the said Finance Company. 2. It is the case of the Petitioner that her son’s friend Shri Padwal called up on 4th February 2006 and stated that certain persons need the said vehicle for attending some ceremony at Phaltan. It is stated that on 5th February 2006, at about 10.40 a.m. six persons visited her residence. The Petitioner’s son was under the impression that the said persons had come from Shri Padwal and therefore, he went away with the said persons by the said vehicle. 3. According to the case of the Petitioner, on the same day, at about 7.45 p.m. her son called up her husband from Baramati and informed her husband that the said persons brought him to Baramati by deceiving him and thereafter, they have forcibly - 3 - taken custody of his vehicle. He stated that the said persons disclosed that they were representatives of a Finance Company. 4. In the complaint, the Petitioner has described as to how the said six persons took her son to Baramati. It is stated that on instructions of her husband, the Petitioner’s son visited Baramati Police Station for lodging the complaint. The vehicle was parked by the said persons near "cargo house". The police personnel informed the Petitioner’s son that on the next day, the Police officer will call the Owner of the cargo house to the Police Station. The Police Officer accordingly called the Petitioner’s son on the next day. The Petitioner’s husband lodged the complaint at Satara Police Station on the same day at 9.30 p.m. When the Petitioner’s son visited Baramati Police Station on the next day, he was informed by the Police Officer to lodge a complaint with the Satara Police Station. The Police Officer made an inquiry on telephone with the Owner of the cargo carrier. He was informed by the owner that the Finance Company had handed over the custody of the said vehicle to the cargo carrier and had also issued a possession receipt. - 4 - 5. It is stated that the first Respondent had met the Petitioner’s husband two months’ prior to the filing of the complaint and had informed the Petitioner’s husband that the Petitioner was liable to pay a sum of Rs.42,600/-. It is stated that at that time, the first Respondent had threatened to take the custody of the vehicle. 6. On the said private complaint, an order was passed by the learned Chief Judicial Magistrate issuing process for an offence punishable under section 379 of the Indian Penal Code. In the said complaint, an application was made by the Petitioner by invoking power under section 94 of the Code of 1973 praying for issue of a search warrant. 7. On the application made by the Petitioner under section 94 of the said Code of 1973, an order was passed on 19th May 2006 by which the said application was rejected. 8. There were two Revision Applications filed before the Sessions Court. The Criminal Revision Application No.66/2006 was filed by the Petitioner - 5 - for challenging the order of the learned Magistrate by which application under section 94 of the said Code of 1973 was rejected by the learned Magistrate. The Criminal Revision Application No.74/2006 was filed by the said Finance Company and the first Respondent herein for challenging order issuing process. The Criminal Revision Application filed by the Petitioner was dismissed and the Criminal Revision Application filed by the first Respondent and the Finance Company was allowed. The learned Sessions Judge has quashed the order of issue of process and dismissed the complaint. 9. The specific challenge in this Petition under Article 227 of the Constitution of India read with section 482 of the said Code is to the order passed in the Criminal Revision Application No.66/2006. The learned Counsel appearing for the Petitioner has, however, made submissions on merits on both the Revision Applications which have been decided by the common judgment which is impugned in this Petition. 10. The learned Counsel appearing for the Petitioner invited my attention to the averments made in the complaint. He has placed on record a - 6 - certified copy of an agreement dated 27th August 2001 executed by and between the said Finance Company and the Petitioner. He submitted that though the said agreement purports to be a hire purchase agreement, in fact, it is an agreement between the parties under which loan was granted to the Petitioner for purchasing the vehicle. He has placed reliance on a decision of learned Single Judge of Punjab and Haryana High Court in the case of Tarun Bhargava v/s State of Haryana [A.I.R. 2003 Punjab & Haryana 98]. He submitted that the transaction reflected from the said agreement was a loan transaction and not a hire purchase transaction. He submitted that at highest, the right of the Finance Company was to enforce the hypothication of the vehicle by adopting due process of law and in no case the Finance Company could have taken possession of the vehicle without the intervention of the Court of law. He submitted that notwithstanding the execution of the said agreement, the Petitioner continued to be the registered Owner of the vehicle and at the instance of the accused, the possession of the vehicle was snatched in a high handed manner. He pointed out the material averments in the complaint which show the the manner in which the vehicle was taken upto Baramati and the manner in - 7 - which it was snatched from the Petitioner’s son. He submitted that on plain reading of the complaint, there were sufficient grounds to proceed against the first Respondent for an offence punishable under section 379 of the Indian Penal Code. He submitted that the said vehicle which is the subject matter of theft is owned by the Petitioner and therefore, this was a fit case where the learned Trial Judge ought to have exercised power under section 94 of the said Code of 1973. 11. The learned Counsel appearing for the first Respondent has placed reliance on a decision of the Apex Court in the case of K.A. Mathai @ Babu and Another v/s Kora Bibbikutti and Another [1996(7) SCC 212]. He submitted that under the hire purchase agreement dated 27th August 2001, the execution of which was not disputed by the Petitioner, the Finance Company was entitled to re-possess the vehicle. He invited my attention to clause no.18 of the agreement. He submitted that the allegation of the Petitioner is that the possession of the vehicle was taken over without following due process of law and therefore, when the Finance Company has acted on the basis of clause no.18 of the agreement, no case of a - 8 - commission of an offence of theft was made out. He, therefore, submitted that no interference is called for with the impugned order. 12. I have considered the submissions made by the learned Counsel appearing for the parties. The learned Counsel appearing for the Petitioner has placed reliance on a decision of Punjab and Haryana High Court in the case of Tarun Bhargava (supra). The said decision arises out of a petition filed for quashing a F.I.R which was registered for offences under sections 392, 232, 506, 120B of the Indian Penal Code on the basis of an order made under section 156(3) of the Code of Criminal Procedure, 1973. According to the complainant, he had purchased a car in August 1995 and had agreed to pay price by instalments. According to the Petitioner before the High Court there were defaults committed by the original Complainant in paying the instalments. According to the case of the Complainant, the Petitioner and others went to the place of the Complainant and snatched the car from him by using a duplicate key. 13. Before the High Court, the Petitioner claimed - 9 - that he was doing the business as a Financer and there was an agreement entered into between him and the Complainant which provided that if there were two consecutive defaults, the Financer will be entitled to take possession of the vehicle. Reliance was placed by the Petitioner on the agreement which was termed as ‘Hire Purchase Agreement’. The learned Judge of Punjab and Haryana High Court interpreted the hire purchase agreement and came to the conclusion that in fact, it was a loan agreement under which loan was advanced to the Complainant. The learned Judge held that the vehicle was hypothecated with the Petitioner by way of security for repayment of the loan and the clause in the agreement regarding the power of the Petitioner to repossess of the vehicle was void. 14. The learned Judge of the Punjab and Haryana High Court held that forcible repossession without the intervention of the Court may involve commission of an offence and what offence has been committed will depend upon the facts of the individual case. The learned Judge proceeded to observe that the decision of the Apex Court in the case of K.A. Mathai @ Balu and Another (Supra) will not be - 10 - applicable to cases where the transaction is in substance a loan transaction as in the loan transaction the ownership of the vehicle is always with of the borrower. 15. Before coming to the facts of the case in hand, it must be noted here that the learned Single Judge of Punjab and Haryana High Court has not laid down as a proposition of law that every kind of re-possession by a Financer without intervention of the Court may involve commission of an offence of theft. Whether an offence has been committed or not will naturally depend upon the facts and circumstances of each case. It will be necessary to refer to averments made by the Petitioner in the complaint. In the complaint, there is not even a reference to the hire purchase agreement which is admittedly executed between the parties. It is not even the case made out that though the agreement may be termed as a hire purchase agreement, in fact the real nature of the transaction was a loan transaction which created hypothetication of the vehicle in favour of the first Respondent. When the execution of the hire purchase agreement is admitted, the Petitioner ought to have come out with the case that - 11 - the agreement was not a real hire purchase agreement, but it was in the nature of a loan agreement. The complaint was earlier dismissed by the learned Magistrate and in Revision Application filed by the Petitioner, the complaint was remanded to the Trial Court. The perusal of the said decision of the Revisional Court shows that no case was made out that the hire purchase agreement is not binding on the Petitioner. Even perusal of the impugned Judgment of the Sessions Court shows that the factual contention based on the decision of Punjab and Haryana High Court was not raised though the Advocate for the Petitioner referred to the said Judgment. In the complaint, there ought to have been a foundation of the factual assertion that the real nature of the transaction between the parties was not a hire purchase and therefore, the agreement does not reflect the transaction of hire purchase. In fact, in paragraph no.16 of the impugned order, the learned Sessions Judge has observed that there is a clear reference to the hire purchase agreement in the R.C. Book of the vehicle. When the execution of the hire purchase agreement was admitted, the learned Sessions Judge has taken a view that an offence under section 379 of the Indian Penal Code was not made out. It - 12 - must be noted here that in the complaint filed by the Petitioner, allegation was of commission of offences under section 379, 384, 403, 420 read with section 34 of the Indian Penal Code. But the process was issued only for the offence under section 379 of the Indian Penal Code. The Petitioner did not challenge the order of the learned Magistrate by which process was confined to section 397 of the Indian Penal Code. The first Respondent purported to act on the basis of a hire purchase agreement which was admittedly executed by the Petitioner which prima-facie grants a power to the Petitioner to resume the possession of the vehicle. In the circumstances, the learned Sessions Judge was right in holding that in absence of mens-rea, by no stretch of imagination, an offence under section 379 of the Indian Penal Code could have been alleged against the first Respondent who was an Officer of the Financer. 16. An application made by the Petitioner for search warrant under section 94 of the said Code of 1973 was rejected by the Trial Court and a Revision Application preferred by the Petitioner against the said order has been rejected by the impugned order. Once it is established that there was no case made - 13 - out for issuing a process against the first Respondent, no fault can be found with the refusal of the learned Magistrate to pass order under section 94 of the said Code of 1973. 17. In the circumstances, there is no merit in the Petition and the same is rejected with no orders as to costs. 18. It is made clear that the observations made in the Judgement are only for the purposes of examining the merits of this Petition in the light of allegation of commission of offence under section 379 of the Indian Penal Code. Nothing stated in the Judgment shall be construed as the findings recorded by this Court on the rights of the parties as regards vehicle in question. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]