IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1285 OF 2007.
HDFC Bank Ltd. .. Petitioner.
versus
1. The State of Maharashtra.
2. Mr.Hari Bhaskar More.
3. Learned Judicial Magistrate,
First Class, Pandharpur,
Maharashtra. .. Respondents.
....
Mr.Mahesh Menon with Asha Nair, i/b. Mahesh Menon &
Co., for the Petitioner.
Mr. Surel S. Shah, for the Resopndent No.2.
Mrs.P.P.Shinde, APP, for the Respondent-State.
ig ....
CORAM : A.S.OKA, J.
DATE : 9th September 2008.
ORAL JUDGMENT :
1. The submissions of the learned Counsel appearing
for the parties were heard on the last date. The
Petitioner-Bank by filing this Petition under Article
227 of the Constitution of India read with section 482
of the Code of Criminal Procedure, 1973 (hereinafter
referred to as “the Code of 1973”) has challenged the
order dated 14th March 2006 as well as order dated 28th
December 2006 passed by the learned Judicial Magistrate,
First Class, Pandharpur.
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2. According to the case of the Petitioner, on an
application made by the second Resopndent, the
Petitioner had granted loan in favour of the second
Respondent for purchasing a two wheeler bearing
registration no.MH13-AA-0174. According to the case of
the Petitioner, the second Respondent executed an
agreement dated 16th August 2004 of
loan-cum-hypothecation. A loan of Rs.36,400/- was
advanced by the Petitioner to the second Respondent.
Apart from the loan-cum-hypothecation agreement,
according to
the Petitioner, the first Respondent
executed a demand promissory note as well as a power of
attorney in favour of the Petitioner. According to the
Petitioner, defaults were committed by the second
Resopndent in repayment of the amount and hence, a legal
notice was issued on 21st September 2005 to the second
Resopndent. As there was no compliance by the second
Resopndent, relying upon clause 8.2 of the agreement
dated 16th August 2004, the Petitioner took over
possession of the said vehicle which was hypothecated in
its favour and the said vehicle was sold to a third
party for consideration.
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3. An application was moved by the second
Respondent before the learned Magistrate purporting to
be an application under section 94 of the Code of 1973.
In the said application, it is alleged that the
Petitioner took forcible possession of the two wheeler
without the consent of the second Respondent on 15th
February 2006. It was alleged that the Petitioner had
stolen the vehicle and therefore, a complaint was lodged
in Pandharpur Police Station and no action was taken by
the Police. Therefore, a prayer was made in the
application to
igissue search warrant against the
Petitioner and for a direction to hand over possession
of the vehicle to the second Resopndent. An order was
passed on 14th March 2006 for issuing search warrant for
production of vehicle. The Petitioner did not appear to
contest the application inspite of service of notice.
By a further order dated 28th December 2006, the learned
Magistrate granted interim custody of the vehicle to the
second respondent on executing a bond of Rs.50,000/-.
4. The learned Counsel appearing for the Petitioner
submitted that till today there is no offence registered
against the Petitioner and there was no occasion for the
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learned Magistrate to pass order of search under section
94 of the Code of 1973 and thereafter, to direct that
possession of the vehicle shall be handed over to the
second Respondent. He has placed reliance on the
decision of the Apex Court in the case of Trilok Singh
and others v/s Satya Deo Tripathi [ AIR 1979 SC 850 ].
He has also placed reliance on a decision of the Apex
Court in the case of K.K.Mathai @ Babu and another v/s
Kora Bibbikutty and another [ 1996(7) SCC 212 ]. He
submitted that on an application under section 94 of the
Code
of 1973, the custody of the vehicle could not have
been given to the second Respondent.
5. The learned Counsel appearing for the second
Respondent submitted that a police complaint alleging
theft was already filed by the second Respondent. He
submitted that proceedings under section 94 of the said
Code of 1973 are also in the nature of an inquiry and at
the conclusion of the said inquiry, the learned
Magistrate had jurisdiction to pass an order under
section 452 of the said Code of 1973 directing that the
possession of the vehicle shall be given to the second
Resopndent. He, therefore, submitted that no
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interference was called for.
6. I have carefully considered the submissions.
The Petitioner has purported to invoke clause 8.2 of the
loan-cum-hypothecation agreement for taking possession
of the vehicle in question on the ground that the second
Respondent committed defaults in re-payment of loan.
The Petitioner is a Financer who advanced loan for
purchasing the vehicle. As held by the Apex Court in
the case of K.A.Mathai (supra) it cannot be said that
the Petitioner
had committed an offence of theft as
there cannot be mens rea alleged on the part of the
Petitioner-Company. The Petitioner purported to act on
the basis of the loan-cum-hypothecation agreement. As
held by the Apex Court in the case of K.A.Mathai
(supra), an offence of theft could not have been alleged
against the Petitioner. Moreover, it can be said that
at the highest, there was a civil dispute between the
Petitioner and the second Resopndent. It is true that
the Petitioner did not appear and contest the
application made under section 94 of the Code of 1973.
However, that does not mean that the application could
have been mechanically allowed without considering the
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legal position. In paragraph no.4 of the order dated
14th March 2006, the learned Magistrate has observed
thus :-
“As per section 378 of the Indian Penal Code if
the property is moved out of the possession of a
person dishonestly, without the consent of the
person the offence is of theft. In this
particular case the opponent has not followed
the due procedure of law while taking away the
vehicle
igand from this act it can be said thatthe opponent has moved the property out of
possession of the applicant with dishonest
intention.”
7. The said observation appears to be erroneous as
it is not possible to attribute any dishonest intention
to the Petitioner-Company. The Petitioner purportedly
acted on the basis of a clause in the Agreement which
was admittedly executed by the second respondent and in
fact the second respondent had taken loan under the said
Agreement. The order of the learned Magistrate of
issuing search warrant for production of the vehicle was
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illegal. Therefore, the consequential order of handing
over possession to the second Resopndent will have to be
also held as illegal. The proceedings of an application
under section 94 of the Code of 1973 cannot be termed as
an inquiry referred to in section 452 of the Code of
1973 as the inquiry or trial contemplated under section
452 is completely different which involves an
adjudication on the allegation of commission of an
offence.
8.
In the circumstances, the Petition must succeed.
Accordingly, rule is made absolute in terms of prayer
clause (b). If the order dated 28th December 2006 is
already acted upon, the second Respondent will return
the said vehicle to the Petitioner within a period of
eight weeks from today.
9. It is made clear that no adjudication has been
made on the rights of the parties as regards the vehicle
in dispute and all contentions as regards rights of the
parties on merits are expressly kept open. This order
will not prevent the second respondent from filing
appropriate proceedings for claiming the possession of
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the vehicle.
( A.S.Oka,J.)
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