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IN THE HIGH COURT OF GAUHATI
IQBAL AHMED ANSARI, J.
Ghanashyam Sarma and Anr. – Appellant
Vs.
State of Assam and Ors. – Respondent
Decided On: 29.01.2008
Financier's Act of Repossession - Hire-Purchase Agreement - Section 379IPC, Section 482 CrPC
Fact of the Case:
The case involved a dispute over the repossession of a vehicle under a hire-purchase agreement. The financier repossessed the vehicle due to default in payment of installments by the hirer, leading to allegations of theft in the FIR.
Finding of the Court:
The court analyzed the nature of hire-purchase agreements and the rights of the financier to repossess the vehicle. It held that the act of repossession by the financier did not amount to theft, as it was done in exercise of the rights under the agreement.
Issues: The key issue was whether the financier's repossession of the vehicle constituted an offence of theft under Section 379IPC.
Ratio Decidendi: The court established that repossession by the financier under a hire-purchase agreement, in accordance with the terms of the agreement, did not constitute theft. It emphasized the absence of dishonest intention and the lawful exercise of rights by the financier.
Final Decision: The court declined to quash the FIR, upheld the financier's possession of the vehicle, and directed the lower court to proceed with the case in accordance with the law.
I.A. Ansari, J.
1. When would a financier's act of re-possession of a vehicle, which is covered by a hire-purchase agreement, not amount to an offence of theft? This is the cardinal issue, which these two petitions have raised.
2. Both these Criminal Petitions, made under Section 482 CrPC, being inextricably connected with each other, have been heard together and are, therefore, being disposed of by this common judgment and order.
3. Before I enter into the merit of the two Criminal Petitions, the material facts, which have led to these two petitions, are set out as under:
Criminal Petition No. 225/2006
(i) By making the application under Section 482 CrPC, which has given rise to this Criminal Petition, the petitioner has sought for, inter alia, quashing the FIR, which has given rise to Dibrugarh Police Station Case No. 396/2006 under Section 379IPC. This FIR, which has been lodged, on 30.07.2006, by one Sri Ghanashyam Sarma (i.e. the petitioner in Criminal Petition No. 42/2007), reads thus:
To Date: 30.07.2006
The Officer-in-Charge,
Dibrugarh Police Station,
Dibrugarh.
Sub: F.I.R.
Dear Sir,
With due respect I have to state that on 22.07.2006 some miscreants forcibly took our vehicle being Regd. No. AS-09-A-1089 709(Bus) from our possession which was parked at Dibrugarh Bus Station.
That Sir, the miscreants have not produced any documents and by force insisted that the vehicle has been financed by North East (P) Ltd. Company, A.T. Road, Guwahati, which is totally false.
That miscreants even did not allow the passengers to take out the belongings from the bus besides the cash amount of Rs. 10,000/- inside the bus box.
That after enquiry we learnt that said Bus is lying at Sivasagar.
That, I therefore request your good self to kindly apprehend the accused persons and recover the said bus.
Yours faithfully
Sd/-
(Ghanashyam Sharma)
S/o Lt. Dambarudhar Sharma,
Gelapukhuri, Tinsukia,
Dist. Tinsukia, Assam.
(ii) Seeking to get the impugned FIR quashed, the petitioner, in Criminal Petition No. 225/2006, sets out its case, in brief, thus: on the basis of a hire-purchase agreement, which M/s Mangalam Enterprises (P) Ltd. (i.e. the petitioner in Criminal Petition No. 225/2006) had entered into, on 08.04.2005, with one Bimal Bora, the said Bimal Bora purchased a vehicle, namely TATA 709 Bus of 2000 model. In terms of the agreement, so entered into by the parties, the said Bimal Bora took the vehicle, as hirer, with Mangalam Enterprises (P) Ltd. as its owner. The total amount paid for the said purchase by M/s Mangalam Enterprises (P) Ltd. was Rs. 2,09,508/- and the same was payable, with interest, in twenty-four installments commencing from 10.05.2005. The registration certificate of the said vehicle was accordingly transferred to the name of Bimal Bora along with Mangalam Enterprises (P) Ltd. as the financier, who is hereinafter referred to as the 'fmancier'. Bimal Bora did not, however, pay any of the installments to the 'financier' despite several demands raised, in this regard, by the 'financier' The 'financier', then, resorted to arbitration proceeding in terms of the provisions of arbitration, as had been stipulated in the said hire-purchase agreement. By order, dated 25.08.2005, passed, in Misc. Case No. 1/2005, which arose out of the Arbitration Case No. YKP/ARB/6 of 2005, the sole arbitrator ordered the 'financier' or its authorized representative to take possession of the said vehicle as neither the hirer, Bimal Bora, nor his guarantor, namely, Bharat Sarma, participated in the arbitration proceeding. A final award was rendered ex parte, on 26.11.2005, by the arbitrator. In terms of the award, the 'financier' was allowed to repossess the vehicle and the hirer as well as the guarantor were directed to pay a sum of Rs. 70,465/- as the unpaid dues of the 'financier '. Having received the award, the 'financier 'searched for the vehicle and sought help of the police, by its letter, dated 22.07.2006, for this purpose. In course of time, the financier
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