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1999 SCC OnLine Mad 604 : 2000 Cri LJ 1552 : (2001) 1 BC 211

Madras High Court

Sekar … Petitioner;
Versus
Arumugham … Respondent.
Cri. Revn. Case Nos. 585, 586, 658 of 1999
Decided on August 10, 1999
ORDER
1. Petitioner Sekar has filed two revision petitions (Cri. RC 585 and 586 of 1999)
aggrieved against the orders passed in Cri MPs 1530 and 2049 of 1999 respectively in
C.C. 121 of 1999 on the file of Learned Judicial Magistrate, Manapparai, petitioner in
Cri. R.C. 658/99 has preferred the revision aggrieved against the order passed by the
learned I Additional District Judge, Trichy in Cri R.C. No. 117/98 dated 26-2-1999.
2. The case in brief for the disposal of all these revision petitions is as follows:
Petitioner Sekar filed petition under S. 451 of the Code of Criminal Procedure,
seeking custody of the lorry bearing registration No. TN-45/D 5649 and also petition
under S. 91 of the Code of Criminal Procedure for production of the said lorry before
the Court. He filed a private complaint before the learned Magistrate for an offence
under S. 379, IPC on the ground that the vehicle in question had been taken away
by the respondent. The complaint was dismissed under S. 203 of the Code of
Criminal Procedure by the learned Magistrate and aggrieved against this, the
petitioner preferred Cri. R.C. 117/98 on the file of learned Additional District Judge,
Trichy and the revision was allowed and aggrieved against this only, the Branch
Manager, Bank of Madura filed the revision petition No. 658/99. The petitions filed
by the petitioner-Sekar under Ss. 451 and 91 Cr. P.C. were dismissed by the
learned trial Magistrate and aggrieved against this only, the other two revision
petitions are filed.

Page: 1553

3. Learned counsel for the petitioner Sekar contended that the learned Magistrate
erred in dismissing both petitions holding that the investigation is pending and as
such, they cannot be called upon to produce the vehicle into the Court. He is the
owner of the lorry in dispute and the registration certificate book also stands only in
his name. The respondent has not claimed any rival ownership of the lorry and there is
no impediment for directing the respondent to produce the lorry and also to give
custody. The learned Magistrate failed to appreciate that keeping the lorry in the
custody is illegal.
4. Learned counsel for the petitioner in Cri. R.C. 638/99 and the respondent in the
other two revision petitions contended that the petitioner Sekar had availed a loan for
a sum of Rs. 4 lakhs during November 94 from the Bank of Madura, cantonment
Branch, Trichy towards purchase of Ashok Leyland Lorry. The petitioner executed a
deed of hypothecation dated 9-11-1994 in favour of the bank and in terms of which
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had hypothecated the lorry in question as a security towards the due repayment of the
amount borrowed by him. The loan was repayable in 60 monthly instalments. In terms
of clause 14(3) of the deed of hypothecation, in the event of any default in the
payment of the loan instalments, the bank had the right to seize the said lorry. As per
clause 15(b) of the said deed, the bank upon seizure of the vehicle was vested with
the right to sell the same and appropriate the sale proceeds towards the oustandings
due and payable to it. He had defaulted in payment of monthly instalments and as
such, on 30-7-1998 the bank seized the said lorry.
5. Aggrieved against seizure he filed a suit in OS 230/96 agasinst the bank in
District Munsif Court, Manaparai and the suit was ultimately dismissed. The petitioner
also filed W.P. 17835/98 against the bank and ultimately, in view of the pendency of
the suit, he was not permitted to invoke S. 226 of the Constitution and the writ
petition was also dismissed. After exhausting all these remedies, he filed C.C. 210 of
1998 against the bank for alleged offence under S. 379, IPC. The learned Magistrate
on recording the evidence of the prosecution witnesses and on conducting an enquiry
under S. 202 of Criminal Procedure Code inter alia holding that for the seizure of the
said lorry by the bank for the default in payment of instalments, the bank or its
officers cannot be prosecuted for the offence of theft in the absence of mens rea. The
petitioner filed the revision Cri. R.C. No. 117/98 before the learned I Additional District
Judge, Trichy and the revision was allowed. Only the owner of the property can claim
right to seize the vehicle and the petitioner cannot claim the right. The bank continues
to be the owner of the lorry and as such, the dismissed of the petitions is proper and
correct.
6. The parties in all the revision petitions are one and the same and as such, a
common order is pronounced in all these revision petitions. The parties will be
hereinafter referred to as they are described in Cri. R.C. 585 of 1999 to avoid
confusion.
7. It is admitted that the petitioner has availed the loan of Rs. 4 lakhs during
November ‘94 from the respondent towards purchase of the lorry in question. He also
executed a deed of hypothecation dated 9-11-1994 in favour of the bank. The
petitioner defaulted in payment of the monthly instalments and because of this, the
respondent bank seized the lorry on 30-7-1998. The petitioner filed a petition under S.
91, Cr. P.C. to send for the property to the Court and he also filed another petition
under S. 451, Cr. P.C. to return the lorry in question to him since he claims that he is
the owner of the property and the registration certificate stands in his name. These
two petitions are dismissed by the learned Magistrate. Learned counsel for the
petitioner mainly contended that the registration certificate book stands in the name
of the petitioner and since he is the owner, the trial Court ought to have allowed both
the petitios and as such, the dismissal is not proper and correct.
8. Learned counsel for the respondent contended that the petitioner hypothecated
the lorry to the bank as a security and clause 14(e) of the deed of hypothecation
clearly indicates that in the event of any default in the payment of instalments, the
bank had the right to seize the lorry. Moreover, according to clause 15(b) of the said
deed of hypothecation, the bank upon seizure of the vehicle was vested with the right
to sell the same and appropriate the sale proceeds towards the outstandings due and
payable to it. It is therefore clear from clauses 14(e) and 15(b) of the deed that the
respondent is entitled to seize the lorry in case of default. Inspite of these provisions,
after the seizure of the lorry by the respondent, it appears that

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the petitioner filed a private complaint before the learned Magistrate and the same
was dismissed under S. 203, Cr. P.C. Aggrieved against this, the petitioner preferred
revision before the learned Chief Judicial Magistrate, Trichy and the appeal was
allowed, directing the learned Magistrate to dispose of the case in accordance with law.
Aggrieved against this order only, the respondent has filed the other revision petition
658/99.

9. It is necessary to state that the petitioner filed a suit in O.S. 250/98 against the
respondent bank on the file of District Munsif Court, Manaparai for a declaration that
he is the owner of the lorry and also filed I.A. No. 610/98 for a mandatory injunction.
The petition was dismissed. Subsequently, he filed the suit in O.S. 187/98 on the file
of Sub-Court, Kulithalai for damages and it is pending. Not satisfied with that, the
petitioner filed writ petition and the same was dismissed by the Court. When the
respondent has been empowered to seize the lorry under clause 14(e), it cannot be
said that the respondent has committed theft of the lorry when the petitioner has
committed default in payment of instalments, the bank has seized the lorry. The
private complaint has been filed against the respondent for alleged offence under
Section 379, IPC only and the learned Chief Judicial Magistrate, Trichy had directed
the learned Magistrate to dispose of the case. Taking into consideration the fact that
the respondent had seized the lorry in accordance with the power, I am of the view
that it cannot be construed as a theft committed by the respondent and as such, the
dismissal of the complaint by the learned Magistrate under Section 203, Cr. P.C. is
proper and correct and the order by the learned Chief Judicial Magistrate is liable to be
set aside. Similarly the dismissal of the two petitions filed by the petitioner under
Sections 91 and 451, Cr. P.C. is also proper and correct for the simple reason that in
view of the default committed by the petitioner, the respondent had seized the lorry.
Even in the writ petition, the petitioner filed W.M.P. Wherein it is directed that he can
pay the arrears; but however, the same was also not paid. In the light of these facts
only, the learned Magistrate had dismissed these two petitions filed by the petitioner
and there is no illegality or infirmity in the orders passed by the Courts below in these
two petitions.
10. Cri. R.C. 585 and 586 of 1999: Both revision petitions are dismissed. Cri. R.C.
658/99, for the reasons mentioned above the revision is allowed and the order passed
by the learned Chief Judicial Magistrate. Trichy is set aside and the order passed by
the learned Magistrate, Manaparai is restored. Consequently, Cri. M. Ps. 5101 and
5102 of 1999 are closed.
11. Order accordingly.
———
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