In a hire purchase agreement, the ownership of the vehicle remains with the financer, and the purchaser is merely a trustee/bailee until full payment.

JUDGMENT

Rumi Kumari Phukan, J. - These two Criminal Petitions are taken up together for hearing and disposal being arisen out of the common order dated 28.11.2018, , passed by learned Special Judicial Magistrae 1st Class, Kamrup (M) at Guwahati, in Complaint Case No.3332/2018.

2. Petitioner Madhab Kumar Das of Criminal Petition No.1135/2019, by obtaining loan from the Punjab National Bank (in short ''the PNB''), petitioner in Criminal Petition No.61/2020, purchased four vehicles for commercial purpose. Petitioner Madhab Kumar Das entered into a hypothecation deed with the PNB and also purchased one Toyota Fortuner vehicle bearing registration No.AS 01 BQ 4777, after sanctioning of the loan from the PNB and the loan amount was Rs.22,59,000/-. As per the hypothecation deed (Clause-13), it shall be lawful for the PNB to take repossession of the hypothecated vehicle from the borrower in case the outstanding loan amount is not paid by him after demand by the Bank. As the borrower defaulted in paying the EMI, the PNB issued various notices since 2015-17, to pay the due indicating that otherwise the PNB will be forced to take possession of the hypothecated vehicle and to sale the same for recovery of the outstanding dues. The petitioner (borrower) requested the PNB on 29.08.2017, to give him opportunity to repay the overdue amount within a period of 30 days. As the petitioner failed to clear the overdue amounts to the PNB, even after his assurance, all the four accounts of the petitioner were classified as NPA and thereafter the PNB served notice upon the petitioner to pay the outstanding amount of Rs.79,88,518/- by the recall notice dated 21.10.2017. One of the hypothecated vehicles (the Audi Car bearing Regn. No.AS 01 BV 0004) was taken into possession by the PNB thereafter and then the petitioner again made an application to the Bank on 02.11.2017, with the assurance to pay the overdue amount within 25.02.2018 and in view of such assurance, said vehicle was returned to the possession of the petitioner but he did not maintain the sanctity of his promise and accounts were not regularized. In that situation, the PNB requested the petitioner/borrower to produce all the four hypothecated vehicles for assessment of the valuation and to submit the insurance policies by the letter dated 18.05.2018 but the same was not responded at all by the borrower as a result of which on 24.05.2018, the PNB through its agent seized the Toyota Fortuner vehicle bearing registration No.AS 01 BQ 4777 from the custody of the petitioner, in terms of the agreement, entered into between the parties and informed the petitioner that in order to get back the possession of the vehicle, he is to deposit a sum of Rs.19,34,930/-, as per the valuation certificate and the same was also not responded. Thereafter the PNB filed an application under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 on 29.06.2018, in the Debts Recovery Tribunal (DRT), Guwahati, to recover all the dues amounting to Rs.78,79,978.34 (for four vehicles), which was registered as O.A. No.328/2018 and the petitioner is contesting the case.

3. In the meantime, after taking the possession of the vehicle by the PNB, knowing about all the above, the petitioner Madhab Kumar Das institute the Complaint Case No.3332/2018 on 31.05.2018, before the learned Chief Judicial Magistrate, Kamrup (M) at Guwahati against the Branch Manager of the PNB and the recovery agent with the allegation that they have forcefully snatched away the Toyota Fortuner vehicle bearing registration No.AS 01 BQ 4777 and thereby committed the offence under Section 120B/406/420/506/323 of the IPC, with a prayer for recovery of the vehicle by way of search warrant.

4. In the aforesaid case, the PNB entered their appearance and filed their written statement against the prayer for search warrant made by the petitioner, narrating all the facts and ground for resuming possession of the vehicle and the learned trial Court was also