1. In the instant application under Section 482 Cr.P.C. the legality and propriety of the proceedings in C. R. No. 821 of 2009 corresponding to T. R. No. 257 of 2009 under Section 379/120(B), 500 and 506 IPC including order dated 28.08.2009 passed therein by the learned Judicial magistrate, 4th Court, District: Paschim Midinipore have been challenged.
2. The present petitioner being Manager of Tata Motors Finance Limited has contended that the said company carries on business of letting out motor vehicle on hire and on loan basis. On being approached by the opposite party no. 2 they extended financial assistance of Rs. 11,20,000/- to him for the purpose of purchasing a Tata ten vehicle truck of model LPT 2518 TC on the basis of a loan cum hypothecation cum guarantee agreement dated 301.1.2007 with the said company. The said amount with interest was repayable at the rate of Rs. 27,950/- in 57 instalments and the balance amount of Rs. 16,850/- in the 58th instalment commencing from 2nd January, 2008 to 2nd September, 2012. The opposite party no. 2 failed and neglected to pay the 15th instalment onwards and ultimately a sum of Rs. 1,62,738/- was due as on 22.08.2009. Therefore, as per agreement the company had no other option but to repossess the said vehicle under intimation to all concerned on 22.08.2009.
3. Thereafter the opposite party no. 2 lodged a complaint before the learned Chief Judicial Magistrate, Paschim Midinipore which was registered under C. R. No. 821 of 2009 corresponding to R. R. No. 257 of 2009 under Sections 379/120(B), 500 and 506 IPC and by order dated 28.08.2009 the learned Chief Judicial Magistrate took cognizance of the offence and transferred the case to the file of learned Judicial Magistrate, 4th Court, Paschim Midinipore for disposal.
4. On 28th August, 2009 the learned Transferee Court issued a search warrant under Section 94 Cr.P.C. on prayer of the opposite party no. 2 and on 29th August, 2009 the said vehicle was seized from the parking yard of the company. Being aggrieved by and dissatisfied with such criminal proceeding including the said order dated 28.08.2009 passed by the learned Transferee Court the present petitioners has preferred this revisional application praying for quashing the entire proceedings and to direct the opposite party no. 2 to continue to pay the monthly instalments as per agreement, in the alternative the petitioner be given liberty to repossess the vehicle. 5. Learned lawyer for the opposite party no. 2 has opposed the move and contended that though as per hypothecation agreement the financier is entitled to repossess the vehicle which is mortgaged as a security, such process must be legal in nature and without recourse to the due process of law the financier cannot lift a plying vehicle on account of non-payment of some monthly instalments without proper notice as is done in the instant case. He has drawn my attention to the principles laid down in the case of ICICI Bank Limited Vs.- Prakash Kaur & Ors., reported in (2007) 2 C.Cr.L.R. (SC) 315 in support of his contention. In the said case the Honble Apex Court has deprecated the taking of possession of a truck by engaging hooligans and granted opportunity to the petitioner respondent to pay the dues in instalments. Their Lordships were further pleased to hold that the banks are entitled to recovery of loans or seize vehicle only by legal means.
6. He has also drawn my attention to the ratio in the case of Tarun Bhargava Vs.- State of Haryana & Anr. reported in AIR 2003 Punjab and Haryana 98. In the said case it has been held inter alia, that where the customer entered into agreement with finance company for purchase of vehicle and the vehicle was purchased in the name of the customer and the ownership was with the customer only and intention of purchase was only to secure payment, the agreement in question would be loan transaction even though referred to as hire purchase finance agreement. In a loan agreement for financing goods on hypothecation basis the creditor cannot forcibly repossess the hypothecated item, though he can enforce the security through the Court. If the agreement is held to be a loan agreement and rights of the creditor are held to be those of a hypothecatee, rights of the parties under the agreement would be different. A hypothecatee cannot take possession of the security without intervention of the Court, though he has right to take possession or to sell the hypothecated property through Court or to give notice to the hypothecator to enforce the security.
7. In the context of the above legal proposition if the present case is examined it will appear that the learned Court below has rightly taken cognizance of the offence on the basis of a complaint lodged by the registered owner of the hypothecated truck on 28.08.2009 and therefore, decided to proceed against the accused persons for committing the offence under Section 379/500/506 IPC. On the same date at a later stage the learned Court below has entertained another petitioner under Section 94 Cr.P.C. and issued search warrant in respect of the vehicle no. WB-33A/5617 and directed IC, Kotwali P.S. to execute the same by 07.09.2009. Learned Court below has been further pleased to hold that after recovery of the vehicle the same should be handed over to its registered owner on furnishing bond of Rs. 5,00,000/- on condition to produce the vehicle without changing the nature and character of the same before the Court as and when called for.
8. From the allegations made in the FIR it appears that the hypothecated truck was suddenly taken back by the petitioner company with the help of some unknown agents at the point of assault and threat on 21.08.2009 who detained the lorry at Chowringhee while the said truck loaded with mourm was plying towards NH 6. The driver was forced to get down from the truck and to sign in a paper and thereafter the lorry was taken towards Midnipore town with all relevant papers kept therein. On the basis of such allegation made in paragraph 4 of the petition of complaint the learned Court below has taken cognizance of the offence since the petition of complaint discloses prima facie offence of theft and extortion etc.
9. Therefore, it is a pure question of facts to be decided in course of trial as to whether the petitioner company has taken resort to the due process of law for recovery of the loan by taking back the hypothecated truck. The revisional Court cannot at this stage decide the merit of such petition of complaint which prima facie discloses the alleged offence. From this point of view learned Court below has not committed any error in issuing process. He has also passed interlocutory order while considering application under Section 94 Cr.P.C. in his order dated 28.08.2009 to keep the vehicle after recovery at the disposal of the registered owner on furnishing bond and on condition to produce the same as and when called for without changing the nature and character of the same. This consequential interlocutory order is also legally valid because the registered owner is the appropriate person who should take care of the seized vehicle n execution of the search warrant, during pendency of trial. Otherwise the same will be damaged and left at the care of nobody at the risk of its deterioration and damage which cannot serve the ends of justice pending trial. Therefore, I also do not find any illegality or impropriety in such order to be interfered with.
10. Learned lawyer for the petitioner has however, drawn my attention to the case of Amitava Saha & Ors. Vs.- State of West Bengal & Anr. reported in 2007(4) CHN 1029. In the said case by an order dated 20.12.2006 a Single Bench of this Honble Court has held that the financier has every right to seize the vehicle in case of default and no allegation of theft of vehicle against the financier is legally tenable. The said decision was taken on the basis of the ratio in Trilok Singh & Ors. Vs.- S. Tripathi reported in AIR 1979 SC 850; C. S. Chaddya Vs.- Sidhir Mehera, reported in 2001(7) SCC 417. I hold that the latter ratio of the Honble Apex Court dated 26.02.2007 in the case of ICICI Bank Limited Vs.- Prakash Kaur & Ors. reported in (2007)2 C Cr.LR (SC) 315 will prevail upon all former decisions and the said principle should be applicable in the instant case because the cases relied on and referred to by the learned lawyer for the petitioner were decided before 26th February, 2007 and as such will not be applicable in the facts and circumstances of the present case.
11. Considering all these aspects I hold that there is no merit in this revisional application and as such the same is dismissed reserving right of the petitioners to agitate on all such questions of disputed fact before the learned Trial Court.
12. The interim order granted earlier, if any, stands vacated.
13. Learned Court below is directed to proceed with the case as per law in light of the observation made above.
14. Urgent photostat certified copy of this order, if applied for, be supplied to the respective parties, upon compliance of all requisite formalities.