Mere taking away out of one's possession does not constitute theft unless it is done dishonestly.

M.L.Singhal, J.

1. This is a Crl. Misc. petition filed under Section 482 Cr.P.C. by Citi Bank N.A. through its Assistant Vice President Shri Surinder Kumar seeking the quashing of FIR No. 758 dated 17.10.1993 under Section 382 IPC lodged by Harmit Singh, respondent No. 2 at PS Central Faridabad (Haryana). For understanding the controversy, the recitation of the facts is necessary to be given.

2. Petitioner is a body corporate, constituted under the law prevailing in USA, and having its Registered Office at 399, Park Avenue, New York - 10043, USA and inter alia, a Branch Office at Jeevan Bharati Building, Cannaught Place, New Delhi. Petitioner is operating inter alia a Citimobile Finance Scheme under which it lends money to the beneficiary payable at an equated monthly instalment for the purchase of car. Harmit Singh approached and requested the petitioner for the grant of loan for the purchase of a Maruti Standard car under the aforesaid scheme. Respondent No. 2 agreed to repay the loan in 36 equated monthly instalments with interest. He secured the loan against the said vehicle and agreed to adhere strictly to the repayment schedule. A sum of Rs. 1,31,000/- was sanctioned as loan to respondent No. 2 by the petitioner. Loan agreement dated 22.1.1992 was executed to which respondent No. 2 is a signatory. Loan was subject to the terms and conditions as stipulated in the agreement and other documents which respondent No. 2 agreed to and accepted by way of his endorsement on the said documents. Respondents loan account was maintained by the petitioner which is B4-146-38493. In pursuance to receiving the loan from the petitioner, respondent No. 2 purchased Maruti car which was registered as DL-2CC-1687. This car was hypothecated in favour of the petitioner-Bank. Among others, irrevocable power of attorney authorising and empowering the petitioner to deal with the vehicle or selling it off or otherwise parting with the same in any manner whatsoever as the bank deemed fit and proper was executed. This power of Attorney is irrevocable since the consideration has been paid to respondent No. 2. This authority was to be used only in case of default and recall of loan amount. It was agreed between the parties that in the event of default in making payments of equated monthly instalments to the petitioner, the petitioner shall take possession of the vehicle. The relevant clause of the agreement is reproduced as under :-

"9. The Bank is entitled to take repossession of the hypothecated vehicle whether the entire loan amount has been recalled or not, whenever in the absolute discretion of the Bank there is likelihood of due money not being paid and/or the vehicle is likely to be transferred to defeat the security and the due amounts of the Bank."

The Banks right to sell the vehicle will be exercisable only after 7 days period commencing from the taking over of the possession of the vehicle. It is averred that Harmit Singh-respondent No. 2 failed to adhere to the financial discipline of repayment of the loan amount either towards principal or interest or charges. Several cheques issued by respondent No. 2 for repayment of the loan were dishonoured/returned unpaid with the remarks "refer to drawer/insufficient funds". Respondent No. 2 was served with reminders to pay the amount which was due towards him due to dishonouring of the cheques. Respondent No. 2 failed to abide by the terms of the contract though persistent requests were made to him. Respondent No. 2 failed to make the vehicle available for inspection to the officials of the petitioner-Bank in consonance with the terms of the hypothecation. He made last payment on 25.8.1993 for the month of May, 1993. As per the books of account, he was required to pay a sum of Rs. 87,145.22 towards principal, interest and other dues as on 31.10.1993 per the certified copy of the statement of account Annexure P4. Notice was issued to him prior to the repossession of the car by the petitioner-