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Mohammad Jameel Kasana v/s Zaffar Ahmad Shah

    CRMC No. 92 of 2018
    Decided On, 09 May 2022
    At, High Court of Jammu and Kashmir
    For the Petitioner: G. A. Lone with Mujeeb Andrabi, Advocates. For the Respondent: M. A. Qayoom, Advocate.

Judgment Text
1) The petitioner has challenged the complaint filed by the respondent against him alleging commission of offence under Section 379 RPC, which is pending before the Court of Special Mobile Magistrate (Sub Judge), Anantnag (hereinafter referred to as the trial Magistrate). Challenge has also been thrown to order dated 09.02.2017 passed by the learned trial Magistrate whereby process has been issued against the petitioner on the basis of the aforesaid complaint. The petitioner has also challenged order dated 26.02.2018 passed by Additional Sessions Judge, Anantnag, whereby revision petition filed against the aforesaid order of the learned trial Magistrate has been dismissed.

2) It appears that respondent/complainant had filed a complaint before the learned trial Magistrate alleging therein that he is the attorney holder of the vehicle bearing registration No.JK01Q-7383 and that the Power of Attorney in his favour has been executed by the petitioner/accused on 12.05.2015. It was averred in the complaint that due to turmoil in Kashmir Valley in July-August, 2016, the complainant could not deposit the loan amount with the bank and in the month of October, 2016, when he had parked his vehicle at Wazir Bagh Anantnag, the petitioner/accused took away the said vehicle, thereby committing the offence of theft. It was further averred that when the respondent/complainant asked the petitioner to deliver back the vehicle, he refused to do so and instead used abusive language against him.

3) After recording the preliminary evidence, the learned trial Magistrate referred the complaint to SHO, P/S Saddar Anantnag, for conducting enquiry in terms of Section 202 of the Cr. P. C. Upon receipt of the report of the enquiry, learned trial Magistrate passed a detailed order dated 09.02.2017, wherein he recorded his satisfaction that, prima facie, offence punishable under Section 379 RPC is disclosed against the petitioner/accused and, accordingly, process was issued against him.

4) It seems that the aforesaid order of the learned trial Magistrate was challenged by the petitioner by way of a revision petition before Additional Sessions Judge, Anantnag (hereinafter referred to as the Revisional Court). The Revisional Court vide its order dated 26.02.2018 upheld the legality and validity of the order passed by the learned trial Magistrate and the revision petition was dismissed.

5) Both the aforesaid orders have been challenged by the petitioner in these proceedings.

6) It has been contended by the petitioner that the vehicle in question was purchased by him after availing loan from the J&K Bank Ltd. Branch Residency Road, Srinagar. It is averred that on 12.05.2015, a Power of Attorney was executed by the petitioner in respect of the vehicle in question in favour of the respondent with a specific condition that he will be responsible to deposit the installments on regular basis in accordance with the terms of loan agreement and if he fails to do so, he will hand over the car back to the petitioner. It is further averred that in addition to this, another agreement came to be executed between the parties on 14.05.2015, wherein it was clearly stipulated that the respondent would not commit any default in payment of installments and if he does so, he will have to pay penalty of Rs.50,000/ for each default. It is averred that the respondent failed to deposit the loan installments with the bank, as a result of which the bank continued to deduct the monthly installments from the petitioner’s salary right from 11.01.2016.

7) It is contended that the order of taking cognizance passed by the learned trial Magistrate is mechanical in nature and it lacks application of mind. It is further contended that the petitioner being owner of the vehicle in question has a right to preserve and protect the same and that his activity does not amount to any offence. It is also contended that on the basis of the report of the enquiry, no offence was disclosed against the petitioner and, as such, it was not open to the learned trial Magistrate to issue process against the petitioner. It is contended that it was not open to the learned trial Magistrate to appoint a Commissioner for settling the accounts between the parties as the same is unknown to criminal law. The petitioner challenged the order passed by the Revisional Court on the ground that the said Court has failed to exercise the jurisdiction vested in it.

8) I have heard learned counsel for the parties and perused the material available on record including the trial court record.

9) The crucial documents on which fate of the instant petition hinges are Power of Attorney dated 12.05.2015 and the agreement dated 14.05.2015. By virtue of the Power of Attorney, the petitioner has appointed and authorized the respondent as his lawful attorney to do all things in respect of the vehicle in question including the execution of documents for transfer of the vehicle. It further provides that the vehicle is financed by Jammu and Kashmir Branch Ltd. Branch Residency Road, Srinagar, and the loan amount has to be liquidated by the Attorney Holder i.e., respondent herein. It goes on to provide that if respondent fails to deposit two consecutive installments towards the bank, the petitioner would be at liberty to seize the vehicle. The agreement dated 14.04.2015 provides that the respondent has purchased the vehicle in question from the petitioner. It further provides that the respondent would pay monthly loan installments of Rs.7000/ to the bank and if he fails to do so and the bank deducts the monthly installments from the salary of the petitioner, the respondent would pay a penalty of Rs.50,000/.

10) From the above referred two documents, there is no manner of doubt that the petitioner has sold the vehicle in question to respondent by transferring the possession of the vehicle in his favour. The report of enquiry conducted by the police under Section 202 of the Cr. P. C reveals that the vehicle in question was sold by the petitioner to respondent about two years prior to the alleged occurrence. It also reveals that the price of the vehicle was settled at Rs.3,87,000/, out of which respondent had paid an amount of Rs.1,40,000/ to the petitioner and he was to liquidate the loan amount of Rs.2,47,000/ directly to the bank.

11) The respondent has placed on record of the trial court the vouchers indicating the deposition of the loan installments with Jammu and Kashmir Bank Ltd. As many as 13 receipts have been placed on record of the trial court and as per these receipts, the respondent has deposited an amount of Rs.1,25,600/ in the loan account pertaining to the vehicle in question. Thus, a substantial portion of sale consideration is, prima facie, shown to have been paid by the respondent to the petitioner.

12) Section 5 of the Sale of Goods Act, 1930, provides that a contract of sale is made by an offer to buy or sell goods for a price and the acceptance of such offer. It further provides that the contract may provide for the immediate delivery of the goods or immediate payment of the price or both, or for the delivery or payment by installments, or that the delivery or payment or both can be postponed.

13) In the instant case, the material on record, prima facie, shows that the petitioner has delivered possession of the vehicle in question to the respondent under the agreement dated 14.05.2015. He has received part of the sale consideration and balance was to be paid by the respondent directly to the bank, which according to the petitioner he has failed to deposit. Once the contract in respect of sale of the vehicle in question was complete, the only course open to the petitioner to enforce the terms of the sale agreement so as to recover the balance sale consideration from the respondent or in the alternative to get back possession of the vehicle, was to approach the court of law and not to take law into his own hands. When the petitioner delivered the possession of the vehicle in question to the respondent after having accepted the part consideration, he ceased to be its owner and, as such, it was not open to him to snatch the vehicle in question from the possession of the respondent.

14) Section 378 of RPC, which defines the offence of theft, clearly provides that taking dishonestly any movable property out of the possession of any person without that person’s consent amounts to theft. Illustration (k) to the said provision provides that if a person having pawned his watch to another person takes it out of the possession of said person without his consent, not having paid what he borrowed on the watch, he commits theft even though the watch is his own property, inasmuch as he takes it dishonestly.

15) Thus, e

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ven if it is assumed that the petitioner continues to be the registered owner of the vehicle in question, still then, because he had willingly parted with possession of the vehicle in favour of the respondent after having receiving the part consideration, he could not take away the vehicle from the possession of the respondent without his consent. Having done so, his act comes within the definition of offence of theft. Thus, ingredients of offence under Section 378 RPC are disclosed against the petitioner from the allegations made in the complaint and the material collected during the enquiry. The learned trial Magistrate was, therefore, justified in issuing process against the petitioner. 16) For the foregoing reasons, I do not find any justifiable reason to interfere with the orders passed by both the courts below. The petition lacks merit and is, accordingly, dismissed. 17) The trial court record along with a copy of this order be sent back.