Jayaraman and Others vs State by Mallur Police

Arunachalam, J.—The Petitioners are accused in C.C No. 708 of 1985 on the file of the Judicial Second Class Magistrate-IV, Salem,

initiated by the Respondent on a complaint from one M. Barathan on 10-3-1986 alleging that on 25-7-1983 at about 2:30 p.m., fifty persons

belonging to Lakshmi Trade Credits Ltd., Madras, took away his lorry bearing Registration No. TNL. 3465, in the process of which they tried to

attack him as well. According to the first informant, he ran away while the group of persons took away the vehicle. It is also stated in the first

information report that Bharathan had already preferred a complaint on 25-7-1983 at the Mallur Police-station, on which no action had been

taken.

The first information report dated 10-3-1986 had been registered as Crime No. 89 of 1988 for an offence u/s 379, I.P.C., on the file of Mallur

police-station and after investigation, a charge-sheet had been filed before the Judicial Second Class Magistrate-IV, Salem against the Petitioners

for an offence u/s 379, I.P.C., on 30-4-1988 which had been taken on file as C.C. No. 708/8. This petition has been filed to quash the

proceedings in the aforementioned calendar case.

A few more facts need narration before disposing of this petition. Bharathan, the first informant, even in 1983 filed O.S. No. 1366 of 1983 on

the file of the Additional District Munsif-in-charge, Salem, against Lakshmi Trade Credits Ltd., Madras for a declaration and permanent injunction.

In I.A. No. 1653 of 1983 in the said suit, Bharathan prayed for an injunction restraining the Respondent (Lakshmi Trade Credits Ltd., Madras)

and their men from in any way alienating or encumbering the lorry bearing Registration No. TNL. 3465, which belonged to him, by means of a

temporary injunction. Though the suit is pending, the temporary injunction petition was heard after the Respondent therein filed a counter, and by

order dated 20-6-1984 the District Munsif dismissed the prayer. In the course of the order, the District Munsif has found that on the admitted hire

purchase agreement entered into by Bharathan with the Respondent (therein) dated 3-11-78, which had been renewed on 18-5-1981, Lakshmi

Trade Credits Ltd., continued to be the owner of the vehicle till the instalments were fully paid and was also entitled to repossess the vehicle in

case of default as provided in the agreement itself marked in the proceedings as Ex.B-1. A specific finding has also been given that in terms of the

agreement, Ex.B-1, Lakshmi Trade Credits seemed to have a right to repossess the vehicle.

Aggrieved by the order of the District Munsif, Bharathan preferred C.M.A. No. 31 of 1984 on the file of the Principal Subordinate Judge,

Salem, which was also dismissed on 14-10-1985, confirming the order of the trial Court. This appears to have become final since Bharathan did

not take further steps to challenge the order of the Sub Court, Salem.

It is only after the termination of all these proceedings that Bharathan had thought fit to complain to the Respondent on 10-3-1986 on the basis

of which the first information report was registered, culminating in the charge-sheet dated 30-4-1988, leading to the prosecution in C.C. No. 708

of 1988 on the file of the Judicial Second Class Magistrate-IV, Salem. The Petitioners are employees in Lakshmi Trade Credits, Ltd.

It is rather unfortunate that in the complaint preferred by Bharathan, he had not stated anything about the prior civil litigation between the parties

and the verdict of the civil Courts. By suppressing these details, he has preferred a complaint which again, without proper investigation, has

resulted in this prosecution. It is seen from the finding of the civil Court that Bharathan owes Lakshmi Trade Credits Ltd., several instalments in

terms of the hire purchase agreement. If Bharathan is aggrieved, and it is his case that he has paid all the instalments due on the hire purchase

agreement, it is for him to agitate the matter in the civil Court to enforce his rights whatever they may be.

On the facts, there is no doubt whatsoever that Bharathan had entered into a hire purchase agreement with Lakshmi Trade Credits Ltd., on 3-

11-1978, which has again been renewed in 1981. It is not disputed that the truck was seized on 25-7-1983, but it is the definite case of Lakshmi

Trade Credits that it was so seized in terms of the agreement which gives them a right to repossess the vehicle for non-payment of the instalments.

In case of hire purchase, it is a matter of common knowledge that in default of any one of the monthly instalments, the financier has a right to

terminate the hire purchase agreement even without notice and seize the vehicle. On the facts of this case, such a right has been found in favour of

Lakshmi Trade Credits Ltd., by the civil Court.

From the facts detailed above, it is seen that the dispute raised by Bharathan is purely of a civil nature, in spite of his suppression of civil

proceedings. Even assuming that the Petitioners either by themselves or in the company of others went and seized the truck on 25-7-1983 near

Panamarathu-patti, they could and did claim to have done so in exercise of their bona fide right of seizing the lorry, on the failure of Bharathan to

pay the monthly instalments due on the hire purchase agreement. Obviously a bona fide claim of right led to the seizure of the lorry, and this has

been affirmed by the Civil court. On the face of the complaint itself, which has suppressed the civil litigation, and which must have come out during

the investigation by the Respondent, there is no material whatsoever to prosecute the Petitioners for theft of the vehicle. That there is no bona fides

in the launching of the complaint is also patent in view of preferring the complaint on 10-3-1986 after the termination of the civil proceedings which

went against Bharathan on 14-10-1985.

In my opinion, on the facts and circumstances detailed above, the criminal proceeding deserves to be quashed. The petition is allowed and the a

fore-mentioned prosecution is hereby quashed.