High Court of KeralaSingle Judge2022-08-17Quashed

Shanavas M., Kaleelullakhan A.P., Abdul Kalam K. v. The State of Kerala and UMMUKULSU and ALI.

Case / Petition Number:CRL.M.C.No.8313/2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Dr. Kauser Edappagath
Judgment Date: 2022-08-17
Court Decision / Holding: Crl.M.C. allowed. All further proceedings pursuant to Crime No.208/2019 of Vazhikkadavu Police Station stand quashed.
Final Disposition: Quashed

Parties to the Case

Appellants / Petitioners

SHANAVAS.M
KALEELULLAKHAN A.P.
ABDUL KALAM .K.

Respondents

The State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam
UMMUKULSU
ALI. S/O. AHAMMED KUTTY

Legal Representation & Advocates

Counsels for Petitioners

• P. Samsudin
• Sri. M. Anuroop
• Smt. S.K. Sreelakshmy

Counsels for Respondents

• Sri. P. Abdul Kareem
• Sri. R. Abdul Ahad
• Sri. Sangeetha Raj, PP

Case Synopsis & Summary

This is a criminal miscellaneous petition under section 482 CrPC filed in the Kerala High Court seeking to quash Crime No. 208/2019 of Vazhikkadavu Police Station, Malappuram. The petitioners—Shanavas M., Kaleelullakhan A.P., and Abdul Kalam K.—are accused along with others of offences under IPC sections 447 (criminal trespass), 354 (assault or criminal force to outrage modesty), 506 (criminal intimidation) and 395 (dacoity). The prosecution case, based on a complaint by the defacto complainant (2nd respondent), alleges that on 30.8.2019 the petitioners and others trespassed into the complainant’s residential compound, restrained her, abused her, and removed a car. The petition contends that the attempted seizure was a lawful repossession under a hire-purchase agreement between the borrower and a financier (Khaleel Auto, Nilambur) and that the actions were governed by contract and prior notice. The respondents maintain that the allegations prima facie attract the charged offences. After hearing arguments and scrutinizing the FIR, Section 161 CrPC statements, and annexures (including the hire-purchase agreement and notices), the Court relies on in-currency Supreme Court authority to hold that repossession under hire-purchase terms upon default is not an offence. Consequently, the petition is allowed and all further proceedings are quashed.

Provisions of Law Cited

Section 447 IPCSection 354 IPCSection 506 IPCSection 395 IPCSection 161 Cr.P.C.

Legal Doctrines & Maxims

Bona fide claim of right exists; it can be a good defence to a prosecution for theft.
Recovery of possession by financier under hire-purchase terms is not an offence.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that even if the allegations in the FIR and the 161 CrPC statement are accepted on their face value, none of the ingredients of Sections 447, 354, 506 or 395 IPC are attracted. The petitioners, owners/employees of M/s Khaleel Auto, Nilambur, argue that they went to the complainant’s house to effect lawful repossession of the vehicle due to borrower default on a hire-purchase loan with Hinduja Leyland Finance Limited; Annexures A2-A5 show a valid agreement, notice and default. They contend the act was legally authorised under the agreement, with prior notice, and therefore cannot constitute theft, criminal intimidation or trespass. They rely on Supreme Court decisions that recoveries under hire-purchase terms do not amount to offences, and on the principle that bona fide rights justify measures to recover property.

Contentions of Respondents

The respondents contend that the FIR, if taken at face value, discloses trespass, assault and criminal intimidation, making the implicated offences prima facie attracted. They argue the car was taken by force during an attempted seizure, raising triable issues of intent and criminality, and that the petition for quashing should be refused to allow due investigation into potential offences.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Anup Sarmah v. Bhola Nath Sharma	[(2013) 1 SCC 400]	Positive	Recovery of possession by a financier under hire-purchase terms for default does not amount to an offence.
Charanjit Singh Chandha v. Sudhir Mehra	[(2001) 7 SCC 417]	Positive	Recovery of possession by financier under hire-purchase terms does not amount to a criminal offence.
Bharudan Dugar v. S.I of Police	[1986 KLT 430]	Positive	Bona fide claim of right can be a defence to theft; possession with a bona fide right may negate criminal liability.
K.A. Mathai v. Kora Bibikutty	[(1996) 7 SCC 212]	Positive	Financier has right to resume possession upon default; repossession can be lawful even if not expressly in the contract.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Shanavas M., Kaleelullakhan A.P., Abdul Kalam K. v. The State of Kerala and UMMUKULSU and ALI. and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA, 1944 CRL.MC NO. 8313 OF 2019** **CRIME NO.208/2019 OF Vazhikadavu Police Station, Malappuram PETITIONER/S:** 1 SHANAVAS.M AGED 43 YEARS S/O. HAMZA, MULLAN HOUSE, PULLANGODE P.O. MALAPPURAM DISTRICT. 2 KALEELULLAKHAN A.P. AGED 43 YEARS S/O. AHAMMED AMBALAPARAMBA HOUSE, VELIYAMTHODE, CHANDAKKNNU, NILAMBUR TALUK, MALAPPURAM DISTRICT. 3 ABDUL KALAM .K., AGED 31 YEARS, S/O. SALAM, KARIMBIL HOUSE, MUKKATTA, NILAMBUR RS P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADVS. P.SAMSUDIN SRI.M.ANUROOP SMT.S.K.SREELAKSHMY ## **RESPONDENTS/STATE & COMPLAINANT:** 1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. (IN CRIME NO. 208/2019 OF VAZHIKKADAVU POLICE STATION IN MALAPPURAM DISTRICT). Crl.M.C.No.8313/2019 -:2:- 2 UMMUKULSU, AGED 48 YEARS W/O. ALI. KUTTASSERY HOUSE, SCHOOL JUNCTION, MARUTHA, VAZHIKKADAVU, NILAMBUR TALUK, MALAPPURAM DISTRICT 679 333. 3 ALI., S/O. AHAMMED KUTTY, KUTTASSERY HOUSE, SCHOOL JUNCTION, MARUTHA, VAZHIKKADAVU, NILAMBUR TALUK, MALAPPURAM DISTRICT 679 333. BY SRI.P.S.ABDUL KAREEM SRI.R.ABDUL AHAD SRI. SANGEETHA RAJ, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.8313/2019 ## -:3:- ## **O R D E R** Dated this the 17[th] day of August, 2022 This Crl.M.C has been filed to quash all further proceedings pursuant to Crime No.208/2019 of Vazhikkadavu Police Station. 2. The petitioners are the accused. The offences alleged against them are punishable under Sections 447, 354, 506 and 395 of IPC. The 2[nd] respondent is the defacto complainant and the 3[rd] respondent is the husband of the defacto complainant. 3. The crime was registered based on the complaint filed by the 2[nd] respondent. The allegation is that on 30.8.2019 at about 1.20 pm, while the 2[nd] respondent was washing clothes at her home, the petitioners and some other identifiable persons trespassed into her residential compound, proceeded against the Santro Car bearing registration No. KL-10 AB 6167 parked in the compound and when the defacto complainant questioned, they pushed her aside, abused, criminally intimidated her and took away the car. 4. I have heard Sri. P. Samsudin, the learned counsel for Crl.M.C.No.8313/2019 -:4:- the petitioners, Sri. Abdul Kareem, the learned counsel for respondents 2 and 3 as well as Sri Sangeetha Raj, the learned Public Prosecutor. 5. The learned counsel for the petitioners submits that even if the entire allegations in the FIS together with the statement of the 2[nd] respondent recorded under Section 161 of Cr.P.C are taken together at their face value, the ingredients of the offences punishable under Sections 447, 354, 506 and 395 of IPC are not attracted. The counsel further submitted that the petitioners who are owners and employees of a financial institution, namely, M/s Khaleel Auto, Nilambur, went to the house of the defacto complainant to seize the car in question, since the 3[rd] respondent defaulted the repayment of the hire purchase loan availed by him from the petitioners. On the other hand, the learned counsel for the 2[nd] respondent submitted that going by the allegations in the FIS, the offences punishable under Sections 447, 354, 506 and 395 of IPC are prima facie attracted. 6. Annexure A2 hire purchase agreement would show that the 3[rd] respondent is the owner of the car bearing registration No.KL-10 AB 6167 and that it was hypothecated for a Crl.M.C.No.8313/2019 -:5:- sum of ₹90,000/-to M/s Hinduja Leyland Finance Limited. The 2[nd] petitioner is the managing partner and 3[rd] petitioner is the partner of M/s Khaleel Auto, Nilambur which is the franchisee of M/s Hinduja Leyland Finance Limited. The 1[st] petitioner is the employee. Annexure A2 would further show that a charge was created on the vehicle in the name of the financier. A reading of Article 14.1(B) of Annexure A2 would show that on the borrower failing to repay the loan, the financier shall be entitled to take such steps including the seizure of the assets without any notice to the borrower. Annexure A4 is the accounts statement with respect to the vehicle loan availed by the 3[rd] respondent. It would show that the 3[rd] respondent has defaulted the repayment of the loan. Annexure A5 is the notice issued by the Khaleel Auto to the 3[rd] respondent demanding the payment of the defaulted EMI. The said notice is dated 8.8.2019. It is specifically stated therein that unless the entire due is cleared before 20/8/2019, the vehicle would be seized. According to the petitioners, they went to the house of the 3[rd] respondent on the date of the incident to seize the vehicle legally and hence no offence is made out. Crl.M.C.No.8313/2019 -:6:- 7. The main offence alleged by the prosecution is under Section 395 of IPC. The Apex Court in _**Anup Sarmah v. Bhola Nath Sharma**_ [(2013) 1 SCC 400] has held that the recovery of possession of vehicle by financier as per the terms of hire purchase agreement for non payment of instalments by hirer could not be held to be an offence. In _**Charanjit Singh Chandha v. Sudhir Mehra**_ [(2001) 7 SCC 417], the Apex Court has held that the recovery of possession of vehicle by the financier as per the terms of hire purchase agreement does not amount to criminal offence. In _**Bharudan Dugar v. S.I of Police**_ [1986 KLT 430] this Court has held that theft is committed when a person intends to take dishonestly movable property out of the possession of another without his consent and moves it out of his possession and in order to constitute the offence of theft, it has to be established that there was an intention to take dishonestly and without that person's consent. Where a bona fide claim of right exists, it can be a good defence to a prosecution for theft. In _**K.A. Mathai v.Kora Bibikutty**_ [(1996) 7 SCC 212] it has been held that in a case of default to make payment of instalments, financier has the right to resume Crl.M.C.No.8313/2019 -:7:- possession even if the hire purchase agreement does not contain a clause. 8. Since the 3[rd] respondent defaulted the repayment of the loan amount, the repossession of the vehicle by the petitioners after sending prior notice (Annexure A5) cannot be termed as offence punishable under Section 395 of IPC. Since the petitioners went to the house for the purpose of repossessing the vehicle legally, the offence punishable under Section 447 of IPC also is not attracted. 9. I went through the FIS as well as the statement and further statement of the 2[nd] respondent recorded under Section 161 of Cr.P.C. There is absolutely nothing in those statements to attract the ingredients of Section 354 of IPC. What remains is Section 506 of IPC. It is true that there is a stray sentence in the FIS as well as in the statement of the 2[nd] respondent recorded under Section 161 of Cr.P.C that the petitioners criminally intimidated the 2[nd] respondent. But, it is pertinent to note that, even according to the 2[nd] respondent, the alleged criminal intimidation was done in order to repossess the vehicle. The repossession of the vehicle was found to be lawful and hence the Crl.M.C.No.8313/2019 -:8:- offence punishable under Section 506 of IPC also will not be attracted. That apart, apart from the stray sentence that the petitioners threatened and criminally intimidated the 2[nd] respondent, no details have been given. In these circumstances, I am of the view that none of the ingredients of the offences alleged against the petitioners are attracted. Hence, no purpose will be served in proceeding further against the petitioners. Accordingly, the Crl.M.C is allowed. All further proceedings pursuant to Crime No.208/2019 of Vazhikkadavu Police Station hereby stands quashed. Sd/- **DR. KAUSER EDAPPAGATH** **JUDGE** **kp** Crl.M.C.No.8313/2019 ## -:9:- ## **APPENDIX OF CRL.MC 8313/2019** PETITIONER ANNEXURES ANNEXURE A1 CERTIFIED COPY OF THE FIR DATED 07-092019 IN CRIME 208/2019 OF VAZHIKKADAVU POLICE STATION. ANNEXURE A2 TRUE COPY OF THE RELEVANT PAGES OF HYPOTHECATION AGREEMENT EXECUTED BETWEEN THE SECOND PETITIONER AND THE THIRD RESPONDENT. ANNEXURE A3 TRUE COPY OF THE REGISTRATION CERTIFICATE IN RESPECT OF THE VEHICLE KL 10 AB 6167. ANNEXURE A4 TRUE COPY OF THE PAYMENT CHART IN RSPECT OF THE HYPOTHECATION LOAN OVER VEHICLE NO. KL 10 B 6167. ANNEXURE A5 TRUE COPY OF THE DEMAND NOTICE DATED 08.08.2019.