Sekar v Arumugham 2000

हिंदी में पढ़ने के लिए यहां क्लिक करें

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A.RAMAMURTHI, J. – Peoner Sekar has filed these revision peons aggrieved against the orders passed in Cri MPs 1530 and 2049 of 1999 respecvely in C.C. 121 of 1999 on the file of Learned Judicial Magistrate, Manapparai, peoner in Cri. R.C. 658/99 has preferred the revision aggrieved against the order passed by learned Addional District Judge. Trichy Cri. R.C. No. 117/98 dated 26-2-1999.

2. The case in brief for the disposal of these revision peons is as follows: Peoner Sekar filed peon under S. 451 of the Code of Criminal Procedure seeking custody of the lorry bearing registraon no. TN-45/D 5649 and also peon under Secon 91 of the Code of Criminal Procedure for producon of the said lorry before the Court. He filed a private complaint before the learned Magistrate for an offence under Secon 379 on the ground that the vehicle in queson had been taken away be the respondent. The complaint was dismissed under Secon 203 of the Code of Criminal Procedure by the learned Magistrate and aggrieved against this the peoner preferred Cri. R.C. 117/98 on the file of learned Addional District Judge. Trichy and the revision was allowed and aggrieved against this only, the Branch Manager, Bank of Madura filed the revision peon no. 658/99. The peons filed by the peoner Sekar missed by the learned trial Magistrate and aggrieved against this only, the other revision peons are filed.

3. Learned counsel for the peoner Sekar contended that the learned Magistrate erred in dismissing both peons holding that the invesgaon 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 registraon cerficate book also stands only in his name. The respondent has not claimed any rival ownership of the lorry and there is no impediment for direcng 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 peoner in Cri. R.C. 638/99 and the respondent in the other two revision peons contended that the peoner 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 peoner executed a deed of hypothecaon dated 9- 11-1994 in favour of the bank and in terms of which had hypothecated the lorry in queson 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 hypothecaon, 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 outstanding dues and payable of monthly instalments and as such, on 30-7-1998 the bank seized the said lorry. Aggrieved against seizure he filed a suit in OS 230/96 against the bank in District Munsif Court, Manaparai and the suit was ulmately dismissed. The peoner also filed W.P. 17835/98 against the bank and ulmately, in view of the pendency of the suit, he was not permied to invoke Arcle 226 of the Constuon and the writ peon was also dismissed. Aer exhausng all these remedies, he filed C.C. 210 of 1998 against the bank for alleged offence under Secon 379, IPC. The learned Magistrate on recording the evidence of the prosecuon witnesses and on conducng an enquiry under Secon 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 the in the absence of mens rea. The peoner filed the revision Cri. R.C. No. 117/98 before the learned Addional District Judge. Trichy and the revision was allowed. Only the owner of the property can claim right to seize the vehicle and the peoner cannot claim the right. The bank connues to be the owner of the lorry and as such, the dismissal of the peons is proper and correct.

5. The pares in all the revision peons are one and the same and as such, a common order is pronounced in all these revision peons. The pares will be hereinaer referred to as they are described in Cri. R.C. 585 of 1999 to avoid confusion.

6. It is admied that the peoner has availed the loan of Rs. 4 lakhs during November 1994 from the respondent towards purchase of the lorry in queson. He also executed a deed of hypothecaon dated 9-11-1994 in favour of the bank. The peoner defaulted in payment of the monthly instalments and because of this the respondent bank seized the lorry on 30-7-1998. The peoner filed a peon under Secon 91, Cr. P.C. to send for the property to the Court and he also filed another peon under Secon 451, Cr. P.C. to return the lorry in queson to him since he claims that he is the owner of the property and the registraon cerficate stands in his name. These two peons are dismissed by the learned Magistrate. Learned counsel for the peoner mainly contended that the registraon cerficate book stands in the name of the peoner and since he is the owner, the trial Court ought to have allowed both the peons and as such, the dismissal is not proper and correct.

7. Learned counsel for the respondent contended that the peoner hypothecated the lorry to the banks as a security and clause 14(e) of the deed of hypothecaon 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 hypothecaon, the bank upon seizure of the vehicle was vested with the right to sell the same and appropriate the sale proceeds towards the outstanding dues and payable to it. It is therefore clear from clauses 14(e) and 15(b) of the deed that the respondent is entled to seize the lorry in case of default. Inspite of these provisions, aer the seizure of the lorry by the respondent, it appears that the peoner filed a private complaint before the learned Magistrate and the same was dismissed under Secon 203, Cr. P.C. Aggrieved against this, the peoner preferred revision before the learned Chief Judicial Magistrate, Trichy and the appeal was allowed, direcng the learned Magistrate to dispose of the case in accordance with law. Aggrieved against this order only, the respondent has filed the other revision peon 658/99.

8. It is necessary to state that the peoner filed a suit in O.S. 250/98 against the respondent bank on the file of District Munsif Court, Manaparai for a declaraon that he is the owner of the lorry and also filed I.A. No. 610/98 for a mandatory injuncon. The peon 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 sasfied with that, the peoner filed writ peon 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 commied the of the lorry when the peoner has commied default in payment of instalments, the bank has seized the lorry. The private complaint has been filed against the respondent for alleged offence under Secon 379, IPC only and the learned Chief Judicial Magistrate, Trichy had directed the learned Magistrate to dispose of the case. Taking into consideraon the fact that the respondent has seized the lorry in accordance with the power, I am of the view that it cannot be construed as a the commied by the respondent and as such, the dismissal of the complaint by the learned Magistrate under Secon 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 peons filed by the peoner under Secons 91 and 451, Cr. P.C. is also proper and correct for the simple reason that in view of the default commied by the peoner, the respondent had seized the lorry. Even in the writ peon, the peoner 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 peons filed by the peoner and there is no illegality or infirmity in the orders passed by the Courts below in these two peons.

9. Cri. R.C. 585 and 586 of 1999: both revision peons are dismissed. Cri. R.C. 658/99, for the reasons menoned 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.