Syamal Kanti Chakrabarti, J. - (1.) IN the instant application under Section 482 Cr.P.C. the legality and propriety of the proceedings in C. R. No. 821 of 2009 corresponding to T. R. No. 257 of 2009 under Section 379/120(B), 500 and 506 IPC including order dated 28.08.2009 passed therein by the learned Judicial magistrate, 4th Court, District: Paschim Midinipore have been challenged.
(2.) THE present petitioner being Manager of Tata Motors Finance Limited has contended that the said company carries on business of letting out motor vehicle on hire and on loan basis. On being approached by the opposite party no. 2 they extended financial assistance of Rs. 11,20,000/- to him for the purpose of purchasing a Tata ten vehicle truck of model LPT 2518 TC on the basis of a loan cum hypothecation cum guarantee agreement dated 301.1.2007 with the said company. THE said amount with interest was repayable at the rate of Rs. 27,950/- in 57 instalments and the balance amount of Rs. 16,850/- in the 58th instalment commencing from 2nd January, 2008 to 2nd September, 2012. THE opposite party no. 2 failed and neglected to pay the 15th instalment onwards and ultimately a sum of Rs. 1,62,738/- was due as on 22.08.2009. THErefore, as per agreement the company had no other option but to repossess the said vehicle under intimation to all concerned on 22.08.2009. Thereafter the opposite party no. 2 lodged a complaint before the learned Chief Judicial Magistrate, Paschim Midinipore which was registered under C. R. No. 821 of 2009 corresponding to R. R. No. 257 of 2009 under Sections 379/120(B), 500 and 506 IPC and by order dated 28.08.2009 the learned Chief Judicial Magistrate took cognizance of the offence and transferred the case to the file of learned Judicial Magistrate, 4th Court, Paschim Midinipore for disposal. On 28th August, 2009 the learned Transferee Court issued a search warrant under Section 94 Cr.P.C. on prayer of the opposite party no. 2 and on 29th August, 2009 the said vehicle was seized from the parking yard of the company. Being aggrieved by and dissatisfied with such criminal proceeding including the said order dated 28.08.2009 passed by the learned Transferee Court the present petitioners has preferred this revisional application praying for quashing the entire proceedings and to direct the opposite party no. 2 to continue to pay the monthly instalments as per agreement, in the alternative the petitioner be given liberty to repossess the vehicle.
(3.) LEARNED lawyer for the opposite party no. 2 has opposed the move and contended that though as per hypothecation agreement the financier is entitled to repossess the vehicle which is mortgaged as a security, such process must be legal in nature and without recourse to the due process of law the financier cannot lift a plying vehicle on account of non-payment of some monthly instalments without proper notice as is done in the instant case. He has drawn my attention to the principles laid down in the case of ICICI Bank Limited ?Vs.- Prakash Kaur and Ors., reported in (2007) 2 C.Cr.L.R. (SC) 315 in support of his contention. In the said case the Hon?ble Apex Court has deprecated the taking of possession of a truck by engaging hooligans and granted opportunity to the petitioner respondent to pay the dues in instalments. Their Lordships were further pleased to hold that the banks are entitled to recovery of loans or seize vehicle only by legal means. He has also drawn my attention to the ratio in the case of Tarun Bhargava ?Vs.- State of Haryana and Anr. reported in AIR 2003 Punjab and Haryana 98. In the said case it has been held inter alia, that where the customer entered into agreement with finance company for purchase of vehicle and the vehicle was purchased in the name of the customer and the ownership was with the customer only and intention of purchase was only to secure payment, the agreement in question would be loan transaction even though referred to as hire purchase finance agreement. In a loan agreement for financing goods on hypothecation basis the creditor cannot forcibly repossess the hypothecated item, though he can enforce the security through the Court. If the agreement is held to be a loan agreement and rights of the creditor are held to be those of a hypothecatee, rights of the parties under the agreement would be different. A hypothecatee cannot take possession of the security without intervention of the Court, though he has right to take possession or to sell the hypothecated property through Court or to give notice to the hypothecator to enforce the security.;