- (1.) Affidavit of service placed be taken on record. Nobody appears on behalf of the opposite party no. 2. The allegations in the impugned proceeding being G.R. Case No. 1412 of 2008 arising out of Siliguri P.S. Case No. 357 of 2008 dated 8.11.2008 under sections 406/420/120B/34 of the Indian Penal Code is to the fact that the petitioner no. 1 is the financier in respect of a Truck bearing no. WB-73B/1596 which was purchased by the opposite party no. 2 under a Loan cum Hypothecation Agreement. Under the said agreement, a sum of Rs. 13,05,400/- was advanced on behalf of the petitioners/company. The opposite party no. 2 failed to repay the monthly instalment in terms of the said agreement and the vehicle was seized. According to the opposite party no. 2, such seizure was illegal and constituted the alleged offences punishable under sections 406/420/120B/34 of Indian Penal Code.
(2.) Learned counsel appearing for the petitioners submits that the repossession of the said vehicle was admittedly due to the non-payment of instalments in terms of the Loan cum Hypothecation Agreement.
(3.) He drew my attention to clause 6 of the said agreement which reserved right to the petitioners/company to take possession of the vehicle in the event of non-payment of instalments. I have perused the materials on record. The vehicle was purchased by the opposite party no. 2 under the Loan cum Hypothecation Agreement and it was incumbent upon the opposite party no. 2 to repay the instalments within the stipulated time. Clause 6 of the Agreement provides for the consequences of such failure which, inter alia, empowers the petitioner no.1/company to take possession of the vehicle. An action on the part of the petitioners in exercise of such contractual right cannot, in my considered view, constitute an offence in law. Reference in this regard may be made to AIR 1979 SC 850.;