{"id":173189,"date":"2010-07-27T00:00:00","date_gmt":"2010-07-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/cheran-vs-state-represented-by-on-27-july-2010"},"modified":"2015-09-25T23:42:25","modified_gmt":"2015-09-25T18:12:25","slug":"cheran-vs-state-represented-by-on-27-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/cheran-vs-state-represented-by-on-27-july-2010","title":{"rendered":"Cheran vs State Represented By on 27 July, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Cheran vs State Represented By on 27 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 27\/07\/2010\n\nCORAM\nTHE HONOURABLE MS.JUSTICE R.MALA\n\nCriminal Original Petition(MD) No.4725 of 2010\nand\nM.P.(MD) Nos.1 and 2 of 2010\n\n\n1.Cheran\n\n2.Subramani\t\t\t\t.. Petitioners\n\nvs\n\n1.State represented by\n  The Inspector of Police,\n  Town North Police Station,\n  Dindigul.\t\n\n2.Soundararajan\t\t\t\n(2nd respondent is impleaded as\n per the order made in M.P.\n No.3\/2010 dated 27.07.2010\t\t.. Respondents\n\n\n\nPrayer\n\nCriminal Original Petition filed under Section 482 of Cr.P.C. to call\nfor the records relating to C.C.No.547 of 2009 on the file of the learned\nJudicial Magistrate No.II, Dindigul and quash the same.\n\n!For petitioners ... Mr.G.R.Swaminathan\n^For Respondents ... Mr.R.M.Anbunithi\n\t\t     G.A. (Crl. Side) for RR1\n\t\t     Mr.Ayyan Gopal for RR2\n\n:ORDER\n<\/pre>\n
\tThe petitioners approach this Court with a prayer  to call for the records
\nrelating to C.C.No.547 of 2009 on the file of the learned Judicial Magistrate
\nNo.II, Dindigul and quash the same<\/p>\n
\t2. The learned counsel appearing for the petitioners would submit that the
\n1st petitioner is the Branch Manager of the Cholamandalam D.B.S. Finance Limited
\nand he is arrayed as A2 in the case. and the 2nd petitioner is the bonafide
\npurchaser of the vehicle from the 1st respondent. The case of prosecution is
\nthat one Vimala has availed loan for purchasing of lorry and executed the loan
\nagreement and repayment schedule and further since the said Vimala is default in
\nrepayment and sold the vehicle to 3rd party and hence the clause 11 of the said
\nloan agreement, the vehicle has been re-possessed and hence, the defacto
\ncomplainant\/second respondent, who is in possession of the vehicle has given a
\ncomplaint and on the basis of the said complaint given by him, a case has been
\nregistered in crime No.700 of 2009 for the offence under Sections 379 and 406 of
\nI.P.C and final report has been filed before the learned Judicial Magistrate
\nNo.II, Dindigul, which was taken on file in C.C.No.547 of 2009.  Since it is
\nadmittedly a civil matter, the seizure of the subject vehicle was pursuant to
\nthe power of re-possession set out in the agreement between the financier and
\nthe borrower.  No force was employed nor any musclemen were utilized for
\neffecting the re-possession and the lorry has been taken back by the defacto
\ncomplainant\/2nd respondent  as per the order of this court.  Therefore,
\ncontinuing to prosecute the petitioner can only be called as gross abuse of
\nlegal process and hence, he prayed for allowing of the petition.  To
\nsubstantiate his case, he relied upon various decisions of the Apex Court.\n<\/p>\n
\t3. The learned Government Advocate (criminal side) would submit one Vimala
\non 01.10.2007 has obtained loan for a sum of Rs.3,80,000\/- for purchasing a
\nlorry bearing Registration No.KA 1B 7778 and the monthly EMI is Rs.15,269\/- and
\nsince she did not repay the amount, the 1st petitioner re-possessed the vehicle
\nand the defacto complainant\/2nd respondent  purchased the same for a sum of
\nRs.4,50,000\/- whereas the worth of the lorry is Rs.7 lakhs.  Thereafter, the
\npetitioners\/accused stolen the vehicle from the defacto complainant and sold the
\nsame to one Subramani, who is the 2nd petitioner and hence the 2nd respondent,
\nwho has purchased the vehicle from Vimala, has filed a private complainant
\nagainst the petitioners and also filed a petition under Section 451 of Cr.P.C
\nand get back the vehicle from the Court.  The 4th and 5th accused had filed a
\nquash petition before this Court in Crl.O.P.No.5578 of 2008, but the same was
\ndismissed on 04.08.2009 and now the petitioners have filed this quash petition
\nonce again and hence, he prayed for the dismissal of the petition.\n<\/p>\n
\t4. Considering the rival submission made by either side, this Court has to
\nconsider whether the matter is civil in nature.  While considering the order
\npassed in Crl.O.P.No.5578 of 2008, the petition to  quash the F.I.R. in crime
\nNo.255 of 2008 on the file of the respondent police, but the same was dismissed
\nin view of the submission made by the learned Government Advocate (crl. side)
\nsubmitted that charge sheet has already been filed before the learned Judicial
\nMagistrate, Dindigul and the same was taken on file in C.C.No.261 of 2009 and
\nnothing survives in this petition.  Hence, the dismissal of stating that charge
\nsheet has been filed before the learned Judicial Magistrate concerned will no
\nway affect the present petition.\n<\/p>\n
\t5. The learned counsel appearing for the petitioners would submit that
\nsince the 1st petitioner has given loan for a sum of Rs.3,80,000\/- to one Vimala
\nfor purchasing of vehicle and the E.M.I is Rs.15,269\/- but the said Vimala was
\nchronic defaulter and the learned counsel for the petitioner has filed the loan
\nagreement.  Considering the said loan agreement, Article 11 deals with
\nrepossession, termination and company’s right.  Article 10 deals with events of
\ndefault.  Since, the borrower was default in payment, the 1st petitioner as a
\nmanager, he is entitled to repossess the vehicle.\n<\/p>\n
\t6. At this juncture, it is appropriate to consider whether the act of the
\npetitioner is amounts to an offence under penal laws.  In K.A.Mathai alias babu
\nand another V. Kora Bibbikutty and another reported in (1996) 7 Supreme Court
\nCases 212, wherein the Supreme Court has held as follows:\n<\/p>\n
\t“It is more than clear that the hire-purchase agreement with the financier
\nwas entered into much prior in time, whereafter the agreement of sale between A-
\n2 and the complainant took place, and which was subject to the rights of the
\nfinancier. It is even otherwise understandable that A-2 could not have passed a
\nbetter title of the bus to the complainant than that she had acquired for
\nherself under the hire-purchase agreement. Though we do not have the advantage
\nof reading the hire-purchase agreement, but as normally drawn it would have
\ncontained the clause that in the event of the failure to make payment of
\ninstalment\/s the financier had the right to resume possession of the vehicle.
\nSince the financier’s agreement with A-2 contained that clause of resumption of
\npossession, that has to be read, if not specifically provided in the agreement,
\nas part of the sale agreement between A-2 and the complainant. It is, in these
\ncircumstances, the financier took possession of the bus from the complainant
\nwith the aid of the appellants. It cannot thus be said that the appellants, in
\nany way, had committed the offence of theft and that too, with the requisite
\nmens rea and requisite dishonest intention. The assertion of rights and
\nobligations, accruing to the appellants under the aforesaid two agreements,
\nwiped out any dishonest pretence in that regard from which it could be inferred
\nthat they had done so with a guilty intention. ”\n<\/p>\n
\t7. In Charanjit Singh Chadha and Others V. Sudhir Mehra<\/a> (2001) 7 Supreme
\nCourt Cases 417, wherein the Apex Court has held as follows:\n<\/p>\n
\tThe hire-purchase agreement in law is an executory contract of sale and
\nconfers no right in rem on the hirer until the conditions for transfer of the
\nproperty to him have been fulfilled. Therefore, the repossession of goods as per
\nthe term of the agreement may not amount to any criminal offence. The agreement
\n(Annexure P-1) specifically gave authority to the appellants to repossess the
\nvehicle and their agents have been given the right to enter any property or
\nbuilding wherein the motor vehicle was likely to be kept. Under the hire-
\npurchase agreement, the appellants have continued to be the owners of the
\nvehicle and even if the entire allegations against them are taken as true, no
\noffence was made out against them.\n<\/p>\n
\t8. In Sardar Trilok Singh and Others V. Satya Deo Tripathi<\/a> reported in
\n1979 Supreme Court Cases (Cri) 987, wherein, the Apex Court has held as follows:
\n\tWe are clearly of the view that it was not a case where any processes
\nought to have been directed to be issued against any of the accused. On the
\nwell-settled principles of law it was a very suitable case where the criminal
\nproceeding ought to have been quashed by the High Court in exercise of its
\ninherent power. The dispute raised by the respondent was purely of a civil
\nnature even assuming the facts stated by him to be substantially correct. Money
\nmust have been advanced to him and his partner by the financier on the basis of
\nsome terms settled between the parties. Even assuming that the agreement entered
\non March 29, 1973 was duly filled up and the signature of the complainant was
\nobtained on a blank form, it is to be noticed that the amount of the two monthly
\ninstalments admittedly paid by him was to the tune of Rs 3566 exactly at Rs 1783
\nper month. The complaint does not say as to when  these two monthly instalments
\nwere paid. In the first information report which he had lodged he had not stated
\nthat the third monthly instalment was payable on July 31, 1973. Rather, from the
\nstatement in the first information report it appears that the instalment had
\nalready become due on July 28, 1973 when the complainant went out of Kanpur
\naccording to his case. The question as to what were the terms of the settlement
\nand whether they were duly incorporated in the printed agreement or not were all
\nquestions which could be properly and adequately decided in a civil court.
\nObtaining signature of a person on blank sheet of papers by itself is not an
\noffence of forgery or the like. It becomes an offence when the paper is
\nfabricated into a document of the kind which attracts the relevant provisions of
\nthe Penal Code making it an offence or when such a document is used as a genuine
\ndocument. Even assuming that the appellants either by themselves or in the
\ncompany of some others went and seized the truck on July 30, 1973 from the house
\nof the respondent they could and did claim to have done so in exercise of their
\nbona fide right of seizing the truck on the respondent’s failure to pay the
\nthird monthly instalment in time. It was, therefore, a bona fide civil dispute
\nwhich led to the seizure of the truck. On the face of the complaint petition
\nitself the highly exaggerated version given by the respondent, the appellants
\nwent to his house with a mob armed with deadly weapons and committed the offence
\nof dacoity in taking away the truck was so very unnatural and untrustworthy that
\nit could take the matter out of the realm of civil dispute. Nobody on the side
\nof the respondent was hurt. Even a scratch was not given to anybody.\n<\/p>\n
Considering the same, as per the agreement, the 1st petitioner is entitled to
\nre-possess the vehicle and hence, re-possessed the vehicle.  Since the second
\nrespondent, who is alleged to be the purchaser from Vimala, has not repaid and
\ndischarged the amount, the petitioner is entitled to re-possess the vehicle as
\nManager.\n<\/p>\n
\t9. It is appropriate to consider the ingredients of Sections 405 and 379
\nof I.P.C., which read as follows:\n<\/p>\n
Sec. 405 of I.P.C:-\n<\/p>\n
    \twhoever, being in any manner entrusted with property, or with any dominion
\nover property, dishonestly, misappropriates or convert to his own use that
\nproperty, or dishonestly uses or disposes of that property in violation of any
\ndirection of law prescribing the mode in which such trust is to be discharged,
\nor of any legal contract, express or implied, which he has made in which such
\ntrust is to be discharged, or of any legal contract, express or implied, which
\nhe has made touching the discharge of such trust, or wilfully suffers any other
\nperson so to do, commits “criminal breach of trust”.\n<\/p>\n
\tSec.379 of I.P.C – Whoever commits theft shall be punished with
\nimprisonment of either description for a term which may extend to three years,
\nor with fine, or with both.\n<\/p>\n
\t 10. Considering the same, as per the agreement, I am of the view that the
\noffence under Sections 406 and 379 of I.P.C has not been made out.  At this
\njuncture, it is appropriate to consider the decisions relied upon by the learned
\ncounsel appearing for the 2nd respondent in Bhopal Singh V. State and another
\nreported in 1999 CRI.L.J. 2746, is not relevant to the facts of this case.
\nBecause, the said case is in respect of the interim custody of the vehicle.  In
\nthat case, it was decided that the vehicle registered in name of financier and
\nnot in name of owner and hence, the interim custody granted in favour of
\nfinancier, the financier transferring the vehicle in violation of terms of
\n‘supurdaginama’ in favour of another and hence, the sale is not valid and the
\nsubsequent purchaser is not entitled.  There is no quarrel over the proposition,
\nthe the said petition was not filed for quashing the petition.\n<\/p>\n
\t11. The learned counsel appearing for the 2nd respondent would also rely
\nupon the decision in C.T.Faisal Vs. Official Liquidator and Another reported in
\n(2007) 2 M.L.J. 50 and submits that the creditor is not the ‘owner’ of vehicle
\nand the right of the creditor would be extinguished, once the loan amount is
\ndischarged.  But, admittedly, as per the version of the complaint, the loan
\namount is not discharges and hence, the above decision is not applicable to the
\nfacts of this case.  Here, the document filed is only the loan agreement, where
\na specific Article for re-possess of the vehicle in the event of default payment
\nand the events of default are incorporated in Article 10 of the loan agreement.\n<\/p>\n
\t12. The learned counsel appearing for the 2nd respondent has also relied
\nupon the decision in Tarun Bhargava V. State of Haryana and another reported in
\nAIR 2003 Punjab and Haryana 98, wherein, it has been held as follows:\n<\/p>\n
\tForcible repossession without intervention of the Court may involve
\ncommission of an offence and what offence has been committed will depend on
\nfacts of an individual case.  The judgments of the Supreme Court in hire
\npurchase cases holding that in a hire purchase agreement the owner cannot be
\nguilty of theft of his own property will not be applicable to cases where the
\ntransaction, in substance, is a loan transaction, as in a loan transaction the
\nownership will be of the borrower and the principle applicable to a hire
\npurchase agreement will not apply.\n<\/p>\n
\t13. As already discussed, the Supreme Court has held that it is only a
\ncivil in nature and the criminal liability will not be fascinated the
\npetitioner.  Considering the decisions relied on by the learned counsel
\nappearing for the 2nd respondent, the same are not relevant to the facts of this
\ncase since the petitioner is the Branch Manager, working in a finance company,
\nwho lend loan for purchasing of vehicle to the tune of Rs.3,80,000\/- to one
\nVimala, who has entered in to a loan agreement, in which Article 11 deals with
\nthe re-possession, termination and company’s right and Article 10 deals with
\nevents of default.  The borrower Vimala has committed default in payment of
\ninstalments and she sold the same to the defacto complainant and hence the
\npetitioner being the manager of the said Bank, has no other option as per the
\nArticle 10 and 11 of the loan agreement and he is entitled to re-possess the
\nvehicle. The second petitioner is only the subsequent bonafide purchaser for
\nvalue and hence had not committed any offence and no primafacie case has been
\nmade out against the second petitioner.\n<\/p>\n
\t14. In such circumstances, I am of the opinion that no criminal liability
\nwould be fascinated upon the petitioners and hence this criminal original
\npetition is liable to be allowed.\n<\/p>\n
\t15. In fine, the criminal original petition is allowed and the proceedings
\nin C.C.No.547 of 2009 on the file of the learned Judicial Magistrate No.II,
\nDindigul is hereby quashed against these petitioners.  Consequently, connected
\nmiscellaneous petitions are closed.\n<\/p>\n
Arul\t\t\t\t<\/p>\n
To<\/p>\n
1.The Inspector of Police,
\n  Town North Police Station,
\n  Dindigul.\n<\/p>\n
2.The Judicial Magistrate No.II,
\n  Dindigul.\n<\/p>\n
3.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Cheran vs State Represented By on 27 July, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27\/07\/2010 CORAM THE HONOURABLE MS.JUSTICE R.MALA Criminal Original Petition(MD) No.4725 of 2010 and M.P.(MD) Nos.1 and 2 of 2010 1.Cheran 2.Subramani .. Petitioners vs 1.State represented by The Inspector of Police, Town North Police […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-173189","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nCheran vs State Represented By on 27 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/cheran-vs-state-represented-by-on-27-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Cheran vs State Represented By on 27 July, 2010 - 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