Seizure of car due to default in payment not an offence.

1. The petitioners in these cases are the trustees of a Trust called M/s. Dugar Finance Trust which is carrying on the business of Hire Purchase Financiers in motor vehicles. The firm has its Head Office at Madras. In the course of their business the Trust entered into a hire purchase transaction with Sri K.R. Vasudevan of Shertalai in respect of a contract carriage bearing registration No. KLY 9509. As per that agreement the Trust was the owner of the vehicle and Sri Vasudevan the hirer. Since the hirer defaulted payment of the instalments to the tune of Rs.92,000/- the Trust terminated the contract after giving notice to the hirer and repossessed the vehicle on 20.10.85 at about 6 a.m. The Trust thereafter filed O.S.No.7904/85 before the City Civil Court at Madras and moved an application for injunction restraining the hirer, the guarantor and persons-claiming through them from interfering with the possession of the Trust over the vehicle. The Court granted the order of injunction as prayed for. While so, the cleaner of the bus lodged a complaint before the Sub Inspector of Police, Muhamma at 3 p.m. on 20.10.1985 for offence punishable under section 395, Indian Penal Code. The police registered Crime No.127/85. On the report of the police the Judl. II Class Magistrate, Shertalai issued a search warrant on 24.10.1985 to search and seize the vehicle KLY 9509. On 26.10.85 the hirer issued a notice to the Trust stating that he has already filed a suit before the Munsiff's Court, Shertalai for injunction restraining the Trust from taking away the vehicle.

2. The petitioners moved to the Sessions Court, Alleppey in Crl.M.P.No.864/85 for anticipatory bail. On 11.12.1985 the learned Sessions Judge granted their prayer. Subsequently the Sub Inspector of Police, Muhamma filed Crl.M.P.No.876/85 before the Sessions Court, Alleppey for cancellation of the anticipatory bail. On 16.12.1985 the learned Sessions Judge directed the petitioners to surrender the vehicle before the police. Petitioners have filed Crl.M.C.No.1105/85 for quashing the above order. They have also filed Crl.M.C.No.13/86 praying for quashing all further investigations in connection with Crime No.127/85 of the Muhamma Police Station.

3. The police have registered Crime No.127/85 for offence punishable under section 395 of the Indian Penal Code. Section 395 prescribes the punishment for dacoity. As per section 391, Indian Penal Code dacoity is robbery committed or attempted to be committed by 5 or more persons. In all robbery there is either theft or extortion. The allegations now made before police must go to show that there was theft of the contract carriage KLY 9509. Theft is committed when a person intends to take dishonestly movable property out of the possession of another without his consent and moves it out of his possession. Thus in order to constitute the offence of theft it has to be established that there was an intention to take dishonestly and that the taking was without that person's consent. It is now well settled law that where a bona fide claim of right exists it can be a good defence to a prosecution for theft. In other words, an act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right. Vide Apparao v. Lakshminarayana Vide Apparao v. Lakshminarayana (1962) 2 S.C.J. 469: (1962) 2 MLJ. (S.C.) 109: (1962) 2 An.W.R. (S.C.) 109: (1962) MLJ. (Crl.) 629: A.I.R. 1962 S.C. 586. In Chandi Kumar v. Abanidhar Roy Chandi Kumar v. Abanidhar Roy (1964) 1 S.C.J. 419: (1964) MLJ. (Crl.) 238: A.I.R. 1965 S.C. 585, Hidayatullah, J. (as he then was) speaking for the Court observed:

“The offence of theft consists in the dishonest taking of any moveable property out of the possession of another without his consent. Dishonest intention exists when the person so taking the property intends to cause wrongful gain to himself or wrongful loss to the other. This intention is known as animus furandi and without it the off