The legal right to repossess a vehicle due to non-payment of sale consideration does not constitute theft under section 379 of the IPC.

JUDGMENT :

J.C. DOSHI, J.

1. Heard learned advocate Mr. R.C. Kakkad for the petitioner, learned advocate Mr. P.P. Majmudar for the respondent No. 2 and learned APP Ms. Asmita Patel for the respondent-State.

2. By way of this petition u/s 482 of the Code of Criminal Procedure, 1973 (in short “the Code”) the petitioner prayed to quash and set aside FIR being I-C.R. No. 29 of 2015 registered with Bhanvad Police Station u/s 379 of the IPC.

3. The brief facts of the case are that the impugned FIR is lodged against the petitioner herein, inter-alia on the ground that the complainant has kept his black coloured Scorpio car bearing registration No. GJ 24 A 3890 outside his residence. The glass of the front side window was not properly working and therefore, was slightly open. The complainant slept at 10:30 in the night. On the next day, when the complainant wake up, he found that his Scorpio car was not stationary outside his residence and therefore, he checked here and there, but since said Scorpio car was not found in the house of the complainant, he lodged impugned FIR alleging theft of Scorpio car against unidentified person u/s 379 of the IPC. During investigation, opresent petitioner is arraigned as accused in the offence.

4. In background of the above facts, learned advocate Mr. R.C. Kakkad for the petitioner would submit that the first informant is not the owner of the Scorpio car. The name of the petitioner is not stated in the FIR. By relying upon Annexure C i.e. agreement to sell, learned advocate Mr. Kakkad would submit that the petitioner is engaged in selling and purchasing the vehicle at Juangadh. The petitioner has purchased this Scorpio car, which is subject matter of the petition, from its erstwhile owner and then subsequently, sold to the first informant for a sale consideration of Rs.6,60,000/- and out of which, the first informant had paid Rs.50,000/- and given cheques of different denomination towards the sale consideration. He would further submit that agreement was also executed qua such selling under the Sales of Goods Act. He would point out that Annexure C, which is agreement indicating towards sale between the first informant and the petitioner, also permits the petitioner to take possession of the vehicle i.e. Scorpio car in case, if the first informant defaulted in deposit the amount of the sale consideration of the Scorpio car.

5. Learned advocate Mr. Kakkad would submit that in these circumstances, when the first informant failed to pay the sale consideration of the Scorpio car, the petitioner, who has purchased Scorpio car from its erstwhile owner, was legally in position to take possession of the Scorpio car and he has taken the possession of the Scorpio car, as the first informant defaulted in paying the amount. He would further submit that in such circumstances and more particularly, pursuant to the terms and conditions of the agreement deed at Annexure C, taking of possession of Scorpio car at the instance of the petitioner would, by no stretch of imagination, be considered as theft, as alleged in section 379 of the IPC.

6. What is submitted by learned advocate Mr. Kakkad is that the FIR is nothing, but mala fide and if it is allowed to roll into the criminal case, it would be jeopardized the rights of the petitioner and thus, he would submit to allow this petition.

7. Per contra, learned advocate Mr. P.P. Majmudar, relying upon the judgment of the Hon’ble Apex Court in case of Ghanshyam Sharma vs. Surendra Kumar Sharma and Others, (2014) 13 SCC 401, would submit that defence of the accused cannot be addressed and analyzed at the time of quashing of the FIR. It can be allowed to be tested during trial. He would further submit that in the present case, the first informant was in legal possession of the Scorpio car and taking away of the possession of such car at the hands of the petitioner is prima facie attracting the offence punishable u/s 379 of the IPC, which is theft. He would further submit that it is