B VENKATA RAMANA Vs. V BHADRAYYA

JUDGEMENT

(1.) THE appellant on whose complaint the respondents faced trial Under Section 379/34 IPC has come before this Court challenging the judgment of acquittal. It is his case that he was the owner in possession of a pick -up diesel van bearing registration No. ORK 3201 having purchased the same at a price of of Rs. 33,000/ - from the Secretary, Seva Samaj, Rayagada on 28 -12 -1977, the sale agreement being Ext. 1. For the purpose of making the purchase .he had obtained a loan of Rs. 30,000/ - from Viswapnya Finance Corporation, Kakinada of which the respondent No. 1 is the partner and the respondent Nos. 2 and 3 are the brokers. The loan was re -payable in 30 installments . He had already repaid more than half of the amount and was plying the vehicle as a contract carriage. I he vehicle had been made off -road since 14 -1979 as needing some repairs and had been kept in the vacant space of the original accused No. 1 who died before framing of charge, with his permission. But the vehicle was taken away by the respondents which he discovered on 6 -2 -1980. His information lodged at the police station on 7 -2 -1980 having not borne any fruit, he himself made a search for the vehicle and came to know that on 4 2 -1980 the respondents had taken away the vehicle. On 20 2 -1980 he discovered the vehicle in the premises of the Finance Corporation. As the vehicle was refused to be handed back to him, he lodged the complaint under Secs 379 &. 406 read with Sec, 34 IPC, since the police had not taken any action. In the trial that ensued, the defence stand was that Viswa Priya Finance Corporation was the owner of the vehicle and the. appellant was the hirer. The transaction was covered under a hire purchase agreement Ext. Al 10. The appellant had expressed inability to repay the installments and had surrendered the vehicle. The learned Magistrate came to hold that apart from the question of validity of the hire purchase agreement there was also no question of the respondents to have been acting dishonestly and being of that view dismissed the complaint.

(2.) MR . R. K. Patra, the learned counsel appearing for the appellant, has urged that the respondents only financed by way of loan but the title and possession of the vehicle always remained with him and as such taking away the vehicle squarely constituted the offence of the theft. A few facts are necessary for appreciation of the case. The hire purchase agree - ment was executed on 5 -12 - 1977 and the loan amount was advanced on the same day. The vehicle was purchased on 28~12 -1977 as per Ext. 1. Ext. A/10 in its Clause VI and condition Nos. 4 and 5 of the agreement stipulated the appellant's concession to the owner's right of lien to the vehicle an J his right to re -possess the same as also to the position that he shall be the bail of the financer and shall not have any property or interest as purchaser therein until he had exercised option to purchase as provided in the agreement and terms thereof as also to the further condition that the financer may terminate with or without notice the contract of hiring and may forthwith re -take and recover possession of the vehicle. It is however the submission of Mr. Patra that since the vehicle was purchased on 28 - 12 -1977 whereas the money I ad been advanced on 5 -12 -1977, the financer could not be the owner of the vehicle and in effect the appellant was the owner.