S. GIRISH Vs. STATE OF KERALA

JUDGEMENT

(1.) The fourth accused in C.C. No. 114/2009, pending before the Judicial First Class Magistrate's Court, Changanassery, has come up with a prayer to quash the crime as well as the final report in the case. The petitioner is the Branch Manager of the Kottayam Branch of M/s. Indus Ind Bank Ltd., Vehicle Finance Division. The bank advanced a loan to the de facto complainant for the purchase of an autorickshaw. As the de facto complainant defaulted the payment of installments, the bank had made arrangements for seizing the vehicle. It is alleged that as authorised by the petitioner, who is the Manager of the bank, the accused numbers one to three, went in search of the vehicle, located it, and forcibly seized the same from the possession of the de facto complainant after causing hurt to him. A crime was registered as Crime No. 440/2008 of Changanassery Police Station for the offences punishable under Sections 394 and 109 read with Section 34 of the Indian Penal Code against the three persons, who could be identified on sight. After investigation, the police filed Annexure-B final report in the matter, arraigning the petitioner as the fourth accused. The allegation against the petitioner is that he being the Manager of the Indus Ind Bank Ltd., Kottayam Branch, gave financial nursing for purchasing an autorickshaw bearing Registration No. KL-33/7956 to the de facto complainant by way of hire purchase transaction, and when the de facto complainant defaulted the payment of installments, he engaged A1 to A3 to seize the vehicle for repossessing it. Consequently, on 19.09.2008 at 2.00 p.m. A1 to A3 forcibly seized the vehicle from the de facto complainant after causing hurt to him, The offences alleged are under Sections 394 and 109 read with Section 34 of the Indian Penal Code.

(2.) Admittedly, the said vehicle is under a hire purchase transaction through hire purchase agreement entered into between the de facto complainant and the bank of the petitioner. In a hire purchase transaction, the financing bank is in the position of the owner of the vehicle and the person who obtained financial nursing for purchasing the vehicle is in the position of hirer. In the decision in Charanjit Singh Chadha and others v. Sudhir Mehra, 2001 4 RCR(Cri) 192it was held that the hire purchase agreement between parties gave authority to the financier to repossess the vehicle, and their agents were given the right to enter any property or building wherein the motor vehicle was likely to be kept, and under the hire purchase agreement, the financier continued to be the owner of the vehicle, and therefore no offence of cheating, criminal breach of trust or theft of vehicle could be said to have been committed by the financier, who was the owner of the vehicle, when on failure of hirer to pay the installments due, the financier took possession of the vehicle. It was held that the repossession of goods as per the terms of the hire purchase agreement may not amount to any criminal offence. In Shibu Varghese v. Sheeba Jijo, 2010 4 KHC 143, a Single Bench of this Court held that under the hire purchase agreement, the ownership of the vehicle vests with the finance company and therefore, repossessing the vehicle by recourse to the clause in the hire purchase agreement will not amount to an offence under Section 394 of the Indian Penal Code. Even according to the prosecution, the petitioner had authorised A1 to A3, only to repossess the vehicle. It was further held in the decision citedthat in such case the Manager of the finance company, who authorises such persons to repossess the vehicle, will not be vicariously liable for any other offence, if committed by such persons or their agents. There is no allegation that the petitioner had authorised A1 to A3, to cause hurt to the de facto complainant or anybody, and what was authorised was only to repossess the vehicle. Matters being to, the offences alleged against the petitioner are not sustainable in the eye of law. This Crl. M.C. Is only to be allowed and the proceedings in C.C. No. 114/2009 of the Judicial First Class Magistrate's Court, Changanassery as against the petitioner, who is the fourth accused, are only to be quashed.