Nupur Saha and Others vs Gobind Chandra Paul

D. Biswas, J.—This revision petition u/s 482 of the Code of Criminal Procedure has been directed against the order dated 6.2.1998 passed by learned Judicial Magistrate, 1st Class, Dhubri in C.R. Case No. 105 of 1998 taking cognizance of the case under Sections 384/379/418 I.P.C. against the accused Smt Nupur Saha and two Ors. and issued bailable warrant of arrest of Rs. 3,000/-.

Immediate-thereafter, the accused persons filed this revision petition for setting aside the aforesaid order on the ground that the dispute is of civil nature and the learned Magistrate committed error in law in issuing such warrant and taking congnizance. It is further submitted that the Petitioner is financier of the vehicle and she has every right as per the terms of the agreement to re-possess the vehicle on failure of the hirer to pay monthly instalments and also for breach of terms of agreement. As the opposite party(hirer) failed to pay instalments, the Petitioner took possession of the vehicle and as such, the impugned order as well as the entire proceedings initiated by the learned Magistrate are bad in law and liable to be set aside.

Mr. G.N. Sahewalla, learned Counsel for the Petitioner in support of the aforesaid contention referred to a decision of the Supreme Court in K. A. Mathai alias Babu v. Kora Bibbikutty, (1996) 7 SCC 212 and the ratio laid down in that case is that the dispute between the parties is of civil nature and has to be resolved by a civil Court of competent jurisdiction. The Supreme Court further held that mens rea for the offence of theft is absent in a case where as per hire-purchase agreement the financier takes possession of the vehicle on default by the hirer. Even the Supreme Court held that in the absence of a clause permitting the financier to resume possession of the vehicle, such clause in the agreement has to be read even if not specifically provided in the agreement. The same decision is also available in a judgment rendered by learned Single Judge of this Court reported in Tarachand Bothra v. Md. Barek Ali 1996 (1) GLJ 229. But in the instant case, the hire-purchase agreement has been appended as Annexure-1. Clause 18 of the agreement reads as follows:

If default is made in payment of any amount due under this Agreement, the hirer shall pay to the owner compensation for delayed payment at the rate of 3 percent per mensum on the amount from time to time in arrears until payment thereof or determination of this agreement under terms herein, but this clause shall not in any way prejudice the owner''s right under Agreement to repossess or retake possession of the vehicle or to determine the Agreement or otherwise.

It is, therefore, clear that in the instant case the terms of hire-purchase agreement provide for resumption of possession of the vehicle by the financier in case of default in payment, Therefore, considering in the light of ratio laid down in the aforesaid cases, this Court is also of the opinion that essential requirements i.e. mens rea for the offences under Sections 384/379/418 I.P.C. are missing in the instant case. The Petitioner Smti. Nupur Saha exercised her right of rejumption of possession of the vehicle as per terms embodied in Clause 18 of the hire-purchase agreement. The disputes between the parties relating to payment of instalments or non-payment thereof, if any, are matters of adjudication by a civil court. Therefore, the impugned proceedings and the orders under challenge in this revision are to be quashed.

In the result, the revision is allowed and impugned order dated 6.2.1998 passed in CR Case No. 105C/1998 and the proceedings of the case are hereby quashed.

At this stage, the learned Counsel for the opposite party submitted that they are willing to make payment of the arrear instalments and on such payment, the Petitioner may be directed to return the vehicle to the opposite party. In view of the submission, it is observed that on payment of arrears of instalments, the Petitioner may return the vehicle to the Respondent in accordance with the terms of hire-purchase agreement.

Misc. case No. 106 of 1998 also stands disposed of.