Mohammad Jameel Kasana vs Zaffar Ahmad Shah
2022 Latest Caselaw 537 j&K/2

     IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR


                                 Reserved on:   26.04.2022
                                 Pronounced on: 09.05.2022


                    CRMC No.92/2018

MOHAMMAD JAMEEL KASANA                      ...PETITIONER(S)
                 Through: -       Mr. G. A. Lone, Advocate,
                                  with Mr. Mujeeb Andrabi,
                                  Advocate.

Vs.

ZAFFAR AHMAD SHAH                       ...RESPONDENT(S)
                 Through: -       Mr. M. A. Qayoom, Advocate


CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.


                              JUDGMENT

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, even 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.

(Sanjay Dhar) Judge Srinagar 09.05.2022 "Bhat Altaf, PS"

              Whether the order is speaking:      Yes/No
              Whether the order is reportable:    Yes/No