1. These two Criminal Petitions are taken up together for hearing and disposal being arisen out of the common order dated 28.11.2018, , passed by learned Special Judicial Magistrae 1 st Class, Kamrup (M) at Guwahati, in Complaint Case No.3332/2018.
2. Petitioner Madhab Kumar Das of Criminal Petition No.1135/2019, by obtaining loan from the Punjab National Bank (in short 'the PNB'), petitioner in Criminal Petition No.61/2020, purchased four vehicles for commercial purpose. Petitioner Madhab Kumar Das entered into a hypothecation deed with the PNB and also purchased one Toyota Fortuner vehicle bearing registration No.AS 01 BQ 4777, after sanctioning of the loan from the PNB and the loan amount was Rs.22,59,000/-. As per the hypothecation deed (Clause-13), it shall be lawful for the PNB to take repossession of the hypothecated vehicle from the borrower in case the outstanding loan amount is not paid by him after demand by the Bank. As the borrower defaulted in paying the EMI, the PNB issued various notices since 2015-17, to pay the due indicating that otherwise the PNB will be forced to take possession of the hypothecated vehicle and to sale the same for recovery of the outstanding dues. The petitioner (borrower) requested the PNB on 29.08.2017, to give him opportunity to repay the overdue amount within a period of 30 days. As the petitioner failed to clear the overdue amounts to the PNB, even after his assurance, all the four accounts of the petitioner were classified as NPA and thereafter the PNB served notice upon the petitioner to pay the outstanding amount of Rs.79,88,518/- by the recall notice dated 21.10.2017. One of the hypothecated vehicles (the Audi Car bearing Regn. No.AS 01 BV 0004) was taken into possession by the PNB thereafter and then the petitioner again made an application to the Bank on 02.11.2017, with the assurance to pay the overdue amount within 25.02.2018 and in view of such assurance, said vehicle was returned to the possession of the petitioner but he did not maintain the sanctity of his promise and accounts were not regularized. In that situation, the PNB requested the petitioner/borrower to produce all the four hypothecated vehicles for assessment of the valuation and to submit the insurance policies by the letter dated 18.05.2018 but the same was not responded at all by the borrower as a result of which on 24.05.2018, the PNB through its agent seized the Toyota Fortuner vehicle bearing registration No.AS 01 BQ 4777 from the custody of the petitioner, in terms of the agreement, entered into between the parties and informed the petitioner that in order to get back the possession of the vehicle, he is to deposit a sum of Rs.19,34,930/-, as per the valuation certificate and the same was also not responded. Thereafter the PNB filed an application under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 on 29.06.2018, in the Debts Recovery Tribunal (DRT), Guwahati, to recover all the dues amounting to Rs.78,79,978.34 (for four vehicles), which was registered as O.A. No.328/2018 and the petitioner is contesting the case.
3. In the meantime, after taking the possession of the vehicle by the PNB, knowing about all the above, the petitioner Madhab Kumar Das institute the Complaint Case No.3332/2018 on 31.05.2018, before the learned Chief Judicial Magistrate, Kamrup (M) at Guwahati against the Branch Manager of the PNB and the recovery agent with the allegation that they have forcefully snatched away the Toyota Fortuner vehicle bearing registration No.AS 01 BQ 4777 and thereby committed the offence under Section 120B/406/420/506/323 of the IPC, with a prayer for recovery of the vehicle by way of search warrant.
4. In the aforesaid case, the PNB entered their appearance and filed their written statement against the prayer for search warrant made by the petitioner, narrating all the facts and ground for resuming possession of the vehicle and the learned trial Court was also observed that there are sufficient ground for resuming possession of the aforesaid vehicle. At the time of hearing of the said petition, the petitioner herein promised to pay the defaulted amount and in view of such assurance/promise made by the petitioner Madhab Kumar Das, the learned trial Court passed an order dated 28.11.2018, granting the interim custody of the vehicle to the petitioner with the following conditions:
(i) That the petitioner shall made payment of Rs.6,00,000/- (six lakhs only) to the bank as security to take the interim custody, which shall be adjusted with the loan and in doing so the bank shall immediately give back the possession of the vehicle to the petitioner.
(ii) That the petitioner shall regularly make the Equated Monthly Instalment and to that effect the petitioner shall furnish a bond to the bank.
(iii) That the petitioner shall not transfer the vehicle by whatever means while remaining the vehicle in his custody.
(iv) In case the petitioner fails to pay three Equated Monthly Instalment at a stretch, the bank will have right to resume the possession of the vehicle.
5. The petitioner did not comply with the above order and instead filed a revision petition against the order dated 28.11.2018, before the Court of learned District & Sessions Judge, Kamrup, vide Criminal Revision Case No.9/2019, challenging that the trial Court has erred in imposing conditions while granting interim custody of the vehicle and the learned revisional Court by its order dated 13.06.2019, has affirmed the order of the trial Court and dismissed the revision.
6. Thereafter the petitioner Madhab Kumar Das preferred the Criminal Petition No.1135/2019 before this Court, challenging the order of the revisional Court, with a prayer to release the seized vehicle in his favour, enabling him to pay the EMI. On the other hand, the PNB also, being aggrieved by the order of the learned trial Court dated 28.11.2018, in so far as the direction to hand over the interim custody of the seized vehicle to the petitioner Madhab Kumar Das and also aggrieved by the order of the revisional Court which has upheld the order dated 28.11.2018, has filed the Criminal Petition No.61/2020, for appropriate direction so that the seized vehicle can be sold and the mounting dues of the PNB can be recovered at-least to some extent. The PNB has also submitted the statement of accounts regarding the detail dues of the petitioner/ borrower, which is Rs.23,34,121.83 and the same matter is also included in the claim petition filed before the DRT, in O.A. No.328/2018. The petitioner PNB has submitted that the learned trial Court, while granting the interim possession of the vehicle has failed to consider that in a higher purchase agreement, the ownership of the vehicle remains with the financer and the higher purchaser has the right of custody of the vehicle until he fulfils the condition of higher purchase agreement and in view of the substantial dues, the direction of the trial Court to release the vehicle, only on payment of Rs.6 lakhs is not sufficient to meet the liability towards the Bank. It has also been contended that the petitioner Madhab Kumar Das clandestinely assured regular payment since long and on earlier occasion, one hypothecated Audi vehicle was also given to him after re-possession but he did not pay the overdue. The PNB has also prayed to set aside the impugned order passed by the learned trial Court by allowing the PNB to sale the said vehicles to recover the amount dues to the bank.
7. I have heard the submission of Mr. R. Sarma, learned counsel for the petitioner Madhab Kumar Das but none has appeared for and on behalf of the PNB, the petitioner in Criminal Petition No.61/2020.
8. I have also gone through the documents annexed.
9. The petitioner Madhab Kumar Das has admitted that he purchased the vehicles on loan granted by the PNB, after entering into a hypothecation deed, as indicated above. There is also no denial at all as regards the purchase of four vehicles by the petitioner from the loan sanctioned by the same Bank and about the dues amounting to Rs.78,79,978.34 to the Bank. It is also an admitted position that the PNB has already filed the O.A. No.328/2018 before the DRT, Guwahati, which is pending at the stage of final hearing. The petitioner/borrower has not at all denied any of the documents referred above about the execution of the hypothecation deed, dated 10.12.2014, as well as taking of loan for four vehicles from the PNB and also about the filing of the claim petition by the PNB before the DRT, rather he has contested the said case also. In view of the fact that the petitioner/borrower is a willful defaulter, whose loan account turns NPA, the PNB after giving proper notice etc., has taken the possession of the vehicle through its recovery agent. So far as the conduct of the Bank, while taking possession of the vehicle, same cannot be held to be illegal one, as in view of the hypothecation deed entered into between the borrower and the financer, the purchaser is merely a trustee/ bailee and the ownership remains with the Bank, till full recovery of the loan amount. The said proposition has been asserted by the Hon'ble Apex Court in Anup Sarmah vs. Bhola Nath Sharma, reported in (2013) 1 SCC 400, wherein it has been held that in an agreement of hire purchase, purchaser remains merely a trustee/bailee on behalf of financier/financial institution and ownership remains with latter. In case vehicle is seized by financier, no criminal action can be taken against him as he is repossessing goods owned by him, for violation of conditions of higher purchase agreement/ defaulted in making payment, etc.
10. In the given case, the vehicle in question was possessed by the Bank after due procedure, as the borrower turned defaulter in payment nor he responded to the notice of the Bank for producing the vehicles for assessment etc. and in that view of the matter, the petitioner/borrower cannot challenge the conduct of the Bank by filing a Criminal Petition, raising allegation of cheating/breach of entrustment, as has been raised in his complaint petition vide Complaint Case No.3332/2018.
11. In the aforesaid complaint petition, the petitioner has made statement that he is the registered owner of the vehicle and he is paying the installments regularly but sometimes it goes up and down and has alleged that at the instance of the Branch Manager, PNB, the other accused persons forcefully taken away the vehicle while plying on the road. Such an allegation of imposing criminal liability upon the Bank is itself not maintainable while the Bank has full authority to take possession of the vehicle for any default in making the installment. The petitioner/borrower has indicated some default of payment on his part in his complaint petition itself but he is silent about execution of the hypothecation deed, as indicated above.
12. The impugned order reveals that the learned trial Court being aware of the fact that the Bank has ground for resuming the possession of the vehicle, has not taken any cognizance against them under Sections 420/406/120B of the IPC but has taken cognizance only against the offence under Section 323/506 of the IPC. That being so, the Court has erred in passing the order dated 28.11.2018, to accommodate the petitioner/borrower to take the interim custody of the vehicle on certain payment and other conditions. Such an order was passed even after objection raised by the Bank, as huge amount of dues was pending as against the borrower. This is more particularly so as because the matter was sub-judice before the DRT, Guwahati, for recovery of outstanding dues and the possession of the vehicle. The petitioner/borrower who is a willful defaulter, after repeated assurance/promise cannot be given indulgence again and again to repay his loan and the Bank is at liberty to go for legal recourse which they have already adhered to, by filing application before the DRT.
13. The prayer of the petitioner Madhab Kumar Das, made in the instant petition indicates that he is still willing to get back the vehicles without any payment of dues as indicated in the order dated 28.11.2018, which sufficiently indicates that he is not willing to pay the amount due to the Bank but simply want to posses t
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he vehicles without any condition, which however cannot be allowed to prevail. 14. Considering all entirety of the matter, it can be held that the order dated 28.11.2018, passed by the learned trial Court is not sustainable in law as well as facts. In a case under Section 323/506 of the IPC, the Court is not supposed to adjudicate the matter of disposal of a vehicle which was taken on hypothecation. The prayer of the petitioner/borrower obviously is not bonafide in the present petition, who intended to resist the Bank from recovery of dues in legal manner. On the other hand, the prayer of the PNB in its petition vide Criminal Petition No.61/2020 is justified while challenging the order dated 28.11.2018, as the interim custody of the vehicle to the borrower is not at all justified who did not even intend to pay the outstanding dues. 15. In view of the findings and discussions as above, the impugned order dated 28.11.2018, passed by the learned Special Judicial Magistrate 1 st Class, Kamrup (M) at Guwahati, in Complaint Case No.3332/2018, is hereby quashed and set aside. So far as the prayer of the PNB to allow them to sale the vehicles in question etc., the same will be decided by the DRT, Guwahati, where the claim petition vide O.A. No.328/2018, is pending for disposal. 16. Both the Criminal Petitions are answered accordingly.