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 two petitions have raised.
2. Both these Criminal Petitions, made under Section 482 CrPC, being inextricably connected with each other, have been heard together and are, therefore, being disposed of by this common judgment and order.
3. Before I enter into the merit of the two Criminal Petitions, the material facts, which have led to these two petitions, are set out as under:
Criminal Petition No. 225/2006
(i) By making the application under Section 482 CrPC, which has given rise to this Criminal Petition, the petitioner has sought for, inter alia, quashing the FIR, which has given rise to Dibrugarh Police Station Case No. 396/2006 under Section 379 IPC. This FIR, which has been lodged, on 30.07.2006, by one Sri Ghanashyam Sarma (i.e. the petitioner in Criminal Petition No. 42/2007), reads thus:
To Date: 30.07.2006The Officer-in-Charge,Dibrugarh Police Station,Dibrugarh.Sub: F.I.R.Dear Sir,
With due respect I have to state that on 22.07.2006 some miscreants forcibly took our vehicle being Regd. No. AS-09-A-1089 709(Bus) from our possession which was parked at Dibrugarh Bus Station.
That Sir, the miscreants have not produced any documents and by force insisted that the vehicle has been financed by North East (P) Ltd. Company, A.T. Road, Guwahati, which is totally false.
That miscreants even did not allow the passengers to take out the belongings from the bus besides the cash amount of Rs. 10,000/-inside the bus box.
That after enquiry we learnt that said Bus is lying at Sivasagar.
That, I therefore request your goodself to kindly apprehend the accused persons and recover the said bus.
Yours faithfully Sd/- (Ghanashyam Sharma) S/o Lt. Dambarudhar Sharma, Gelapukhuri, Tinsukia, Dist. Tinsukia, Assam.
(ii) Seeking to get the impugned FIR quashed, the petitioner, in Criminal Petition No. 225/2006, sets out its case, in brief, thus: on the basis of a hire-purchase agreement, which M/s Mangalam Enterprises (P) Ltd. (i.e. the petitioner in Criminal Petition No. 225/2006) had entered into, on 08.04.2005, with one Bimal Bora, the said Bimal Bora purchased a vehicle, namely TATA 709 Bus of 2000 model. In terms of the agreement, so entered into by the parties, the said Bimal Bora took the vehicle, as hirer, with Mangalam Enterprises (P) Ltd. as its owner. The total amount paid for the said purchase by M/s Mangalam Enterprises (P) Ltd. was Rs. 2,09,508/- and the same was payable, with interest, in twenty-four installments commencing from 10.05.2005. The registration certificate of the said vehicle was accordingly transferred to the name of Bimal Bora along with Mangalam Enterprises (P) Ltd. as the financier, who is hereinafter referred to as the 'fmancier'. Bimal Bora did not, however, pay any of the installments to the 'financier' despite several demands raised, in this regard, by the 'financier' The 'financier', then, resorted to arbitration proceeding in terms of the provisions of arbitration, as had been stipulated in the said hire-purchase agreement. By order, dated 25.08.2005, passed, in Misc. Case No. 1/2005, which arose out of the Arbitration Case No. YKP/ARB/6 of 2005, the sole arbitrator ordered the 'financier' or its authorized representative to take possession of the said vehicle as neither the hirer, Bimal Bora, nor his guarantor, namely, Bharat Sarma, participated in the arbitration proceeding. A final award was rendered ex parte, on 26.11.2005, by the arbitrator. In terms of the award, the 'financier' was allowed to repossess the vehicle and the hirer as well as the guarantor were directed to pay a sum of Rs. 70,465/- as the unpaid dues of the 'financier '. Having received the award, the 'financier 'searched for the vehicle and sought help of the police, by its letter, dated 22.07.2006, for this purpose. In course of time, the financier', with the help of the police of Dibrugarh Police Station, obtained custody of the vehicle on 22.07.2006. On physical verification of the said vehicle, it was found that though the registration number of the said vehicle was changed, the engine number and chassis number had remained same as were mentioned in the original registration certificate. The financier then, by a letter, dated 25.08.2006, addressed to the Dibrugarh Police Station, acknowledged the taking over of the possession of the vehicle. In the said letter, however, the 'financier' alleged that the registration number had been fraudulently changed and the vehicle had been transferred in the name of one Sri Ghanashyam Sarma (hereinafter referred to as the 'present buyer'). Further enquiry by the 'financier' revealed that the hirer (i.e., Bimal Bora) had, at first, sold the vehicle to one Kiran Sharma, who had got the vehicle registered in the State of Arunachal Pradesh without obtaining any 'No Objection Certificate' (as is required under the Motor Vehicles' Act, 1988), from the 'financier', though it was the 'financier', who had financed the purchase of the vehicle by the hirer on the basis of the hire-purchase agreement aforementioned. The vehicle was, thereafter, sold by said Kiran Sarma to one Ghanashyam Sarma, (i.e. the present buyer). The 'financier' also noticed that the registration number of the vehicle was changed twice; once, when the vehicle was sold to Kiran Sarma and, thereafter, when the vehicle was transferred in the name of Ghanashyam Sarma. Thus, though the present buyer had purchased the vehicle, in collusion with Kiran Sarma, by fraudulent means, he (the present buyer) has lodged the impugned FIR making false accusations that the vehicle had been financed by M/s North Eastern (P) Ltd. Co., A.T. Road, Guwahati, and that while taking possession of the said vehicle, the 'financier' and his agents had also taken away a sum of Rs. 10,000/-, which was lying, in cash, in the dashboard of the said bus. In the facts and circumstances of the present case, the criminal prosecution lodged against the 'financier' is mala fide and illegal. The FIR was lodged was 30.07.2006, i.e. after about a week of repossession of the vehicle, by the 'financier' and this is yet another circumstance showing that the FIR was lodged belatedly by making false accusations of stealing an amount of Rs. 10,000/-.
Criminal Petition No. 42/2007
(i) The present buyer, i.e. Ghanashyam Sarma, had filed a writ petition in this Court, under Article 226 of the Constitution of India, seeking a direction to the police to seize the said vehicle and keep the same injudicial custody till completion of the investigation of Dibrugarh P.S. Case No. 396/2006, aforementioned. This writ petition, which gave rise to WP (C) No. 4066/2006, was closed and disposed of, on 27.09.2006, with the observation that no relief, at this stage, can be granted in the writ petition and that Ghanashyam Sarma (i.e. the present buyer) may make appropriate application in the Court of the Chief Judicial Magistrate, Dibrugarh. Ghanashyam Sarma (i.e. the present buyer), then, accordingly applied to the Court of the Chief Judicial Magistrate, Dibrugarh, seeking custody ofthe said vehicle. By order, dated 03.11.2006, the learned Chief Judicial Magistrate, Dibrugarh, called for a report from the police. A report was submitted, on 08.11.2006, by the police, wherein it was mentioned that the vehicle was, by GD. Entry dated 22.07.2006, taken away by one Ikram Huda, who had claimed to be an agent of North East Finance (P) Ltd. Ikram.Huda had informed the traffic police at Dibrugarh that the hirer of the vehicle had failed to pay the installments regularly for the last two months. Though Ikram Huda has been said to be an agent of the North East Finance (P) Ltd, Sivasagar branch, the fact remains that said Ikram Huda had taken possession of the vehicle as the representative of the present 'financier'. By order, dated 08.11.2006, the learned Chief Judicial Magistrate, Dibrugarh, observed that there was nothing to show that the vehicle, in question, had been seized by the police in connection with the case, which Ghanashyam Sarma had filed. In these circumstances, the learned Court below directed the police to clarify if the vehicle had been seized in connection with the case, which Ghanashyam Sarma had lodged, and if the vehicle had been seized, whether the custody thereof could be given to Ghanashyam Sarma
(ii) On passing of the order, dated 08.11.2006, aforementioned, Ghanashyam Sarma has filed the present application under Section 482 CrPC, which has given rise to Criminal Petition No. 42/2007, wherein his grievance is to the effect that neither the Chief Judicial Magistrate, Dibrugarh, nor the Officer-in-Charge, Dibrugarh Police Station, has taken any step pursuant to the order passed by the High Court, on 27.09.2006, in WP(C) No. 4068/2006. By making this application, Ghanashyam Sarma has sought for direction to be issued to the Chief Judicial Magistrate, Dibrugarh, to keep the vehicle in judicial custody or to hand over the same to Ghanashyam Sarma.
4. It is in the backdrop of the above allegations and counter-allegations that the present two Criminal Petitions have been taken up for hearing and have been accordingly heard.
5. I have heard Mr. P. Bora, learned Counsel, appearing on behalf of the creditor, and Ms. G. Deka, learned Counsel, appearing on behalf of the present buyer. I have also heard Mr. K. Munir, learned Additional Public Prosecutor, Assam.
6. The financier's entire case, as already pointed out above, is that it had provided the vehicle, in question, to the hirer (i.e. Bimal Bora) on the basis of the 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 it. 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 reposession 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.
7. A hire-purchase agreement is, ordinarily, one, whereunder 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. v. State of Kerala and Anr. reported in : [1966]2SCR828 ). Hire-Purchase agreements are, thus, executory contracts, whereunder 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 Ors. v. Sudhir Mehra reported in : 2001CriLJ4255 ). 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-puirchase 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.
8. In Damodar Valley Corporation v. State of Bihar : [1977]1SCR118 , the Supreme Court took the view that a mere contract ofhiring 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 udergone 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 maybe other variations in a contract of hire-purchase depending, of course, upon the terms agreed between the parties.
9. In K.L. Johar & Co. v. CTO : [1962]2SCR644 and Installment Supply (P) Ltd. v. Union of India : [1966]2SCR828 , the Apex 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.
10. 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.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.
11. 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 referred to 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.
12. 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.
13. 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.
14. 'Dishonstly' 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. 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.
15. In the case of wrongful gain as well as wrongful loss, two essential elements 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 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.
16. 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.
17. 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.
18. 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.
19. In Sardar Trilok Singh v. Satyadeo Tripati reported in : 1980CriLJ822 , 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 CrPC 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 para 5 of the judgment, the Apex 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), reads:
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 instalment in time. It was, therefore, a bona fide civil dispute which led to the seizure of the truck.
20. K.A. Mathai v. Kora Bibhihitti reported in : (1996)7SCC212 , 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 Apex 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. 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.
21. 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. v. T. Bangarappa and Anr. reported in 1994 Supp. (1) SCC 507).
22. The Managing Director, OrixAiao Finance (India) Ltd. v. Shri Jagmander Singh and Anr. reported in : (2006)2SCC598 , 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 Apex 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. 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.
23. 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.
24. 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 commmits no offence of theft.
25. Bearing in mind what is indicated above, when I turn to Manipal Finance Corporation Ltd. v. T. Bangarappa and Anr. reported in 1994 Supp (1) SCC 507, I notice that in Manipal Finance Corpn. 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 Apex 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. 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.
26. 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 buyer or anyone else except the financier cannot arise and could not have arisen.
27. This does not, however, mean, I may not hasten to clarify, 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 offence.
28. 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 and Ors. v. Amal Kumar Bose and Ors. reported in : AIR2006Cal295 ).
29. In the backdrop of the position of law, as indicated above, when I turn, once again, to the impugned FIR, 1 notice that the allegations, contained in the FIR, stand divided into two parts. While one part of the FIR alleges that the vehicle has been forcibly taken away, the other part of the FIR alleges that, while taking away the vehicle, in question, the miscreants had taken away not only the belongings of the passengers lying inside the bus, but also a cash amount of rupees ten thousand from inside the dashboard of the bus. These allegations show that though the taking away of the vehicle may not be an offence, because of the reason, as indicated hereinabove, the fact remains that the taking away of the belongings of the passengers and the cash, lying inside the bus, did amount to commission of offence of theft provided the allegations, so made, are true. Whether the allegations as regard taking away of the belongings and cash amount are true or not can be answered only upon investigation and not otherwise.
30. Though it has been contended, on behalf of the financier, that the allegations, made in the FIR, to the effect that the belongings of the passengers and a cash amount of rupees ten thousand had been taken away, while taking away the bus, such allegations are wholly false, I cannot avoid mentioning that the question as to whether an accusation, made in a given FIR, is or is not true, is a question of fact, which may be determined only by an appropriate investigation. So long as the FIR discloses commission of an offence, which is cognizable in law, the police is bound to register the same as an FIR and also investigate the same unless it assigns good reasons, in terms of Section 157 CrPC, for not carrying out such investigation.
31. Because of what have been pointed out above, it becomes clear that though the taking away of the vehicle by the financier/its agent may not amount to an offence of theft, the fact remains that the FIR, in question, does disclose commission of an offence of theft and, in such circumstances, the question of quashing the FIR does not arise at all.
32. Turning to the Criminal Petition filed by Ghanashyam Sarma (i.e., the present buyer), what is necessary to point out is that his grievance, as already mentioned above, is to the effect that neither the Chief Judicial Magistrate, Dibrugarh, nor the Officer-in-Charge, Dibrugarh Police Station, has taken any step pursuant to the order passed by the High Court. In view of the fact that the learned Court below has already called for a report from the police as regard the question as to whether the vehicle, in question, has been seized by the police or not, suffice it to point out here that Ghanasyam Sarma's grievance is pre-mature. This apart, Section 457 CrPC makes it clear that in respect of disposal of a seized property, a Magistrate has the power to deliver the property to the person entitled to the possession thereof. In the present case, it is abundantly clear that until shown to the contrary, the financier is the person entitled to possess the vehicle, in question, for, the possession of the financier is pursuant to an award given under an arbitration proceeding. In such circumstances, it will be futile to direct the learned court below either to retain the vehicle, in question, injudicial custody or to hand over the same to the present buyer, i.e. Ghanashyam Sarma. If, however, the investigation, conducted by the police, reflects that there were belongings inside the bus and/or any cash amount inside the bus, while the bus was being taken possession of by the agent of the financier, and, if such materials are seized, the learned Court below shall remain competent to pass appropriate order (s) with regard to such articles or cash amount as far as custody thereof is concerned.
33. In the result and for the reasons discussed above, while the prayer made by the financier to quash the impugned FIR is declined, the financier's possession of the vehicle, in question, is not hereby disturbed and the learned Court below is hereby directed to deal further with the case aforementioned in accordance with law and in the light of the observations made hereinabove.
34. With the above observations and directions, these two Criminal Petitions shall stand disposed of.
35. Send forthwith a copy of this order to the learned Chief Judicial Magistrate, Dibrugarh.