NUPUR SAHA Vs. GOBINDA CHANDRA PAUL

JUDGEMENT

(1.) This revision petition under Section 482 of the Code of Criminal Procedure has been directed against the order dated 6.2.1998 passed by learned Judicial Magistrate, 1st Class, Dhubri in C.R. Case No. 105 of 1998 taking cognizance of the case under Sections 384/379/418 I.P.C. against the accused Smt Nupur Saha and two others and issued bailable warrant of arrest of Rs. 3,000/-

(2.) Immediate-thereafter, the accused persons filed this revision petition for setting aside the aforesaid order on the ground that the dispute is of civil nature and the learned Magistrate committed error in law in issuing such warrant and taking congnizance. It is further submitted that the petitioner is financier of the vehicle and she has every right as per the terms of the agreement to re-possess the vehicle on failure of the hirer to pay monthly instalments and also for breach of terms of agreement. As the opposite party(hirer) failed to pay instalments, the petitioner took possession of the vehicle and as such, the impugned order as well as the entire proceedings initiated by the learned Magistrate are bad in law and liable to be set aside.

(3.) Mr. G.N. Sahewalla, learned counsel for the petitioner in support of the aforesaid contention referred to a decision of the Supreme Court in K.A. Mathai alias Babu and another- Vs-Kora Bibbikuty and another reported in (1996) 7 SCC 212 and the ratio laid down in that case is that the dispute between the parties is of civil nature and has to be resolved by a civil Court of competent jurisdiction. The Supreme Court further held that mens rea for the offence of theft is absent in a case where as per hire-purchase agreement the financier takes possession of the vehicle on default by the hirer. Even the Supreme Court held that in the absence of a clause permitting the financier to resume possession of the vehicle, such clause in the agreement has to he read even if not specifically provided in the agreement. The same decision is also available in a judgment rendered by learned Single Judge of this court reported in Taradhand BothravMd Barek Ali, 1996 (1) GLJ 229. But in the instant case, the hire- purchase agreement has been appended as Annexure-1. Clause 18 of the agreement reads as follows :-