JUDGMENT
H.W. Dhabe, J.
1. These two criminal application filed under section 482 of the Code of Criminal Procedure (for short the ‘Code’) can be disposed of by this common judgment.
2. Briefly the facts are that according to the complainant – respondent No. 1 the suit truck was purchased by him for a consideration of Rs. 75,000/- from one Syed Hussain Syed Khwajasaheb, resident of Degloor, district Nanded. According to him the purchase price was to be paid to two instalments; one instalment of Rs. 30,000/- to be paid on 2-7-1983 and another instalment of Rs. 45,000/- to be paid on 20-10-1983. Further according o the complainant the possession of the vehicle was delivered to him on 2-7-1983. It is the case of the complainant that be obtained a loan of Rs. 45,000/- from the M.S. Finance Corporation, Hyderabad under which it was agreed that the loan amount should be paid in instalments of Rs. 3,500/- per month inclusive of interest payable on the said loan. However, according to him, he fell in arrears of some instalments due to which without notice to him and in his absence the suit truck was removed on 19-3-1985 at about 3 p.m. by the accused No. 1 and 2. He came to know about this fact after 8 days when he returned to Degloor. He further came to know that the suit truck was in actual possession of the accused No. 3 He, therefore, filed the instant complaint against the accused Nos. 1 and 2 under section 379 read with section 34 and against the accused No. 3. Under section 411 of the I.P. Code.
3. The complainant’s verification statement was recorded by the trial Magistrate, who thereafter issued process against the accused. It is this order of issuing process which the petitioners have challenged in Criminal Application No. 25 of 1985. After directing issue of process against the accused the learned trial Magistrate has passed another order under section 94 of the Code directing issue of a search warrant in respect of the suit truck, which was alleged to be in possession of the accused No. 3. The said order of the learned trial Magistrate is challenged by the petitioners in Criminal Application No. 206 of 1985. The disposal of this criminal application truck thus depends upon the disposal of Criminal Application No. 205 of 1985.
4. The learned Counsel for the petitioners has urged before me that there was a contract of hire purchase between the M.S. Finance Corporation, Hyderabad and the complainant in respect of the suit truck. The Photostat copy of the Hire-Purchase Agreement is annexed as Exhibit-B in Criminal Application No. 205 of 1985. The complainant has admitted that the aforesaid hire – purchase agreement is entered into by him with the said Finance Corporation. It may be stated at this stage that the original accused Nos. 1 and 2 who are alleged to have removed the truck from the possession of the complainant are the employees of the Finance Corporation which is also a fact which is not dispute. It is urged on behalf of the petitioners that in law as is clear from the recital of the hire – purchase agreement the M.S. Finance Corporation was the owner of the suit truck till the instalments shown in schedule-B of the said Agreement were paid by the complainant.
5. It is pertinent to see that the parties have bound themselves by the terms and conditions in the aforesaid hire purchase agreement. A perusal of Clause 15 of the said agreement would show that in case of default in payment of the rent, which is in fact the instalment payable by the complainant mentioned in Schedule-B and for default in payment of insurance premium, taxes etc. or in case the hirer fails to observe or perform any of the conditions of the hire purchase agreement, the hiring stands determined ant the said Finance Corporation can without notice or demand retake possession of the suit vehicle, whether the same is in possession of the hirer or of any other person. It is further clear from Clause 15 that for the purpose of retaking possession the owners, their agents or servant can enter the premises where the vehicle is for the time being garaged or kept and can even break open the lock on doors or other entrances for the purpose off retaking the possession of the vehicle.
6. It is thus clear from the aforesaid Clause 15 that under the terms agreed to by the complainant in the hire purchase agreement the Finance Corporation, their agents or servants could take back the possession of the vehicle without notice or demand and even by breaking open the lock on the doors of the place where the vehicle was kept. It, therefore, cannot be said that the accused Nos. 1 and 2 in taking the possession of the suit truck did not act bona fide when Clause 15 enabled them to take possession of the suit truck in the absence of and without notice to the complainant. It is not in dispute that the complainant had fallen in arrears of the rent or the instalment specified in Schedule-B. Under Clause 15 if the agreement therefore, the Finance Corporation could take possession of the suit truck.
7. The learned Counsel for the complainant has, however, urged that he has already paid an amount of Rs. 30,000/- which amount is disputed by the Finance Corporation. He further claims that he was the owner of the suit truck and only a loan was obtained from the Finance Corporation. In my view, the nature of the transaction is clear from the document Exhibit – B which is admitted by the complainant. As already stated it is a hire purchase agreement and therefore, the ownership will pass to the hirer only after payment of all the instalments as stipulated therein. At any rate, whatever may be the nature of the agreement, Clause 15 which is agreed to by the complainant enables the servants of the Finance Corporation to take possession of the truck if there are arrears of rent, instalments or taxes.
8. It, therefore, cannot be said that any offence is committed by the accused Nos. 1 and 2 much less under section 379 of the Indian Penal Code, if they have taken possession of the suit truck as provided under Clause 15 of the agreement. The fact that it was in possession of the accused No. 3 would not therefore, mean that he was receiver of stolen property, because it cannot be said that the suit truck was stolen by the accused Nos. 1 and 2, who as already stated took possession of the truck as per Clause 15 of the hire purchase agreement. In fact it is clear that the disputes in the instant case is purely of a civil nature. In this view, I am supported by the decision of the Supreme Court in the case of Trilok Singh v. Satya Deo Tripathi, in which the Supreme Court has quashed the prosecution as amounting to the abuse of the process of the Court. In my view, the prosecution in the instant case also amounts to abuse of the Court and is liable to be quashed under section 482 of the Code. Since the prosecution itself is liable to be quashed, there is no question a search warrant in the instant proceedings.
9. In the result, both the criminal applications succeed and are allowed. The impugned order of the learned Magistrate directing the issue of process against the accused which is a subject-matter of Criminal Application No. 25 of 1985 is quashed and set aside. Similarly the impugned order of the learned Magistrate issuing search warrant against the accused No. 3, which is the subject-matter of Criminal Application No. 206 of 1985 is also quashed. The complaint case filed by the complainant-respondent No. 1 is dismissed.