IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 Crl.MC.No. 3938 of 2010() ------------------------- CRIME NO.361/2010 OF MEDICAL COLLEGE POLICESTATION, KOZHIKODE .................... PETITIONER(S): --------------- ING VYSYA BANK LTD., SHEMA BUILDING, RAVIPURAM, COCHIN-16, REPRESENTED BY ITS POWER OF ATTORNEY MR.RAMESH VASUDEVAN, MANAGER CONSUMER ASSETS, ING VYSYA BANK LTD., RAVIPURAM, COCHIN-16. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SMT.A.V.PRIYA SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) RESPONDENT(S)/STATE AND DEFACTO COMPLAINT: --------------- 1. SUB INSPECTOR OF POLICE, MEDICAL COLLEGE POLICE STATION, KOZHIKODE. 2. K.C.ANITHA, D/O.CHANTHUKUTTY, RESIDING AT 29/209, NETHAJI NAGAR, KOTTOOLY, KOZHIKODE DIST. NOW RESIDING AT KOTTAKKUNNUMMAL HOUSE, UNNIKULAM AMSOM DESOM, KOYILANDY, TALUK, PIN-673 305. PUBLIC PROSECUTOR BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA FOR R1 SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R2 SRI.B.UNNIKRISHNA KAIMAL FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.3938 of 2010 -------------------------------------- Dated this the 21st day of February, 2011. ORDER Petitioner is ING Vysya Bank Ltd which is a scheduled commercial bank. The Medical College Police, Kozhikode registered Crime No.361 of 2010 arraying the staff of the said bank as accused for offence punishable under Section 379 of the Indian Penal Code on a complaint preferred by respondent No.2 (Annexure-A18 is the copy of complaint dated 17.06.2010) before respondent No.1 alleging that somebody committed theft of her Tata Indigo LS car on 16.05.2007. Annexure-A17 is the FIR. Petitioner seeks to quash the said FIR contending that the allegations are totally false and what is involved is only a civil dispute. I have heard learned counsel for petitioner, respondent No.2 and the learned Public Prosecutor who appeared for respondent No.1. 2. Case of respondent No.2 in Annexure-A18 is that somebody committed theft of the vehicle belonging to her on 16.05.2007. According to the petitioner and it is not disputed also, respondent No.2 had availed a loan of `.3,95,000/- from the petitioner to purchase the said vehicle. Loan was sanctioned on 24.08.2005. It is also not disputed that respondent No.2 executed Annexure-A2, agreement hypothecating the said vehicle to the petitioner. Petitioner claims that there was default in payment of installments as agreed upon and the cheques issued by respondent No.2 were dishonoured for Crl.MC No.3938/2010 2 insufficiency of funds. Annexure-A2 is the agreement of hypothecation and Annexure-A3 is the irrevocable power of attorney allegedly executed by respondent No.2 in favour of petitioner. Annexure-A4 is the copy of letter dated 07.05.2007 issued by petitioner to respondent No.2 intimating default in payment of the amount, dishonour of the cheques and that vehicle will be repossessed in accordance with the terms of the agreement if arrears is not cleared. Annexure-A5 shows that the letter was returned to the petitioner as ‘addressee left’. Again petitioner sent letter dated 16.052007 to respondent No.2 (Annexure-A6 is the copy) intimating respondent No.2 that the agreement is terminated as on 16.05.2007 and requiring respondent No.2 to remit the amount. In the meantime the vehicle was repossessed by petitioner on 16.05.2007 according to it, in terms of the hypothecation agreement. By Annexure-A6, letter respondent No.2 was informed that in case she failed to clear the arrears the vehicle will be disposed of. Annexure-A7 shows that the said letter also was returned to the petitioner as ‘addressee left’. Annexure-A8 produced by petitioner shows the amount due from petitioner as on the relevant dates. Annexure-A9 is another letter dated 16.08.2007 issued by petitioner to respondent No.2 intimating that vehicle was taken possession (pursuant to the agreement) on 16.05.2007 and will be sold if the liability is not cleared. Annexure-A10 shows that the said letter was also returned as ‘addressee left’. In the meantime, according to the petitioner the vehicle was sold as the petitioner was empowered, to one Sreesanth on 13.08.2007. Petitioner sent Crl.MC No.3938/2010 3 Annexure-A11, letter dated 29.08.2007 intimating respondent No.2 about sale of vehicle and requiring respondent No.2 to collect the excess amount obtained by sale of the vehicle. Annexure-A12 shows that the said letter was served on respondent No.2 on 05.09.2007. Thereafter respondent No.2 filed O.S.No.349 of 2007 (Annexure-A13 is the copy of plaint) in the civil court on 26.09.2007 seeking a decree for prohibitory injunction against petitioner selling the vehicle (even after respondent No.2 was informed about sale of the vehicle as per letter dated 29.08.2007 and served on respondent No.2 on 05.09.2007). In that suit respondent No.2 filed an application for release of the vehicle to her. Annexure- A14 is the copy of application and affidavit for the said purpose. Learned Munsiff passed Annexure-A15, order dated 19.12.2007 directing release of vehicle to respondent No.2 on deposit of `.1.2 lakhs in court. That order was challenged by the petitioner in C.M.A.No.4 of 2008. Annexure-A16 is the copy of judgment dated 10.08.2008. That appeal was dismissed directing the trial court to dispose of the suit within six months. It is while so that on 16.07.2010 respondent No.2 preferred Annexure-A18, complaint to respondent No.1 alleging that somebody committed theft of her vehicle on 16.05.2007. Contention of the learned counsel for petitioner is that the allegations are totally baseless and that at any rate what is involved is only a civil dispute. It is pointed out that seizure of vehicle in terms of the agreement cannot amount to theft. It is also pointed out that Annexure-A2, agreement [Clause 14(A) (ii) and (iii)] empowered petitioner to seize the vehicle even without intervention of the court. Reliance is Crl.MC No.3938/2010 4 placed on the decisions in Bharudan Dugar v. S.I. of Police (1986 KLT 430), Divakaran v. Abdul Kalam & another (1999 (1) KLJ 217) and Charanjit Singh Chadha v. Sudir Mehra (2001 (3) KLT SN.59 – Case No.78) to contend that in such a situation seizure does not amount to theft as alleged. Learned counsel for respondent No.2 contended that on the materials on record respondent No.1 was correct in registering a case against the staff of petitioner. I have heard learned Public Prosecutor also. 3. It is relevant to note that the vehicle was hypothecated to the petitioner and Annexure-A2, agreement enabled petitioner to seize the vehicle on there being defaulted in payment of the amount even without the intervention of court. It is also seen from various documents produced by petitioner that the vehicle was seized in accordance with the terms of agreement on 16.05.2007 and even before that, respondent No.2 was intimated about the default and intention to repossess the vehicle. Even after re- possession respondent No.2 was sought to be intimated by various letters about repossession and the intention of petitioner to sell the vehicle. But those letters were returned for no fault of petitioner as ‘addressee left’. At any rate it is seen that Annexure-A11, letter dated 29.08.2007 was served on respondent No.2 on 05.09.2007 whereby fact of repossession and sale of the vehicle are intimated to respondent No.2 and she was asked to receive the balance amount in Crl.MC No.3938/2010 5 deposit with petitioner. She filed the civil suit on 26.09.2007 admittedly stating about repossession of the vehicle. Annexure-A13, plaint states that cause of action for the suit arose on 16.05.2007 when the vehicle was seized by petitioner and on 24.09.2007 when respondent No.2 approached petitioner for release of vehicle. It is even about two years thereafter that on 17.06.2010 respondent No.2 filed the complaint before respondent No.1 alleging theft of the vehicle. 4. True, in a proceeding under Section 482 of the Code of Criminal Procedure documents produced by petitioner are not to be looked into. But in exceptional circumstances it is open to the High Court to look into the documents produced by petitioner in deciding whether allegations contained in the complaint are baseless. On going through the allegations in the complaint and various documents produced by petitioner I am satisfied that the allegations are baseless and that it is a case of petitioner exercising its right under the agreement to repossess the vehicle. If repossession is not valid remedy is before the civil court which respondent No.2 has already initiated. A complaint alleging offence under Section 379 of the Indian Penal Code alleging that somebody committed theft of the vehicle when respondent No.2 was very much aware that it is not a case of theft but a case of repossession of vehicle by petitioner through its employees or agents as the case may be in terms of the agreement cannot be allowed to stand. Having regard to these aspects of the matter I am inclined to think that continuance of the proceeding is unwarranted Crl.MC No.3938/2010 6 and is an abuse of the process of law. Resultantly this petition is allowed. Annexure-A17, FIR in Crime No.361 of 2010 of the Medical College Police Station, Kozhikode and all proceedings taken thereon are quashed. THOMAS P.JOSEPH, Judge. cks