Impounding of vehicle
tapovardhan
(Querist) 12 November 2011
This query is : Resolved
Owing to some payment dispute and sudden demand by the service centre; as i was unable to pay, though well now to the service centre; service centre management impounded my vehicle.
Is it taking law in their own hands?? To my mind, as per law, they should have filed complaint in case there is any default on my part rather than impounding my vehicle.
Please opine.
Regards
Nadeem Qureshi
(Expert) 12 November 2011
Dear Tapovardhan
any agreement is execute between you and service center or not? if yes then what is the terms and condition of the agreement?
Sankaranarayanan
(Expert) 12 November 2011
What dispute between you and service center. what basis they detained your vehicle. AS asked mr nadeem is correct, Do any agreement been executed with the service provider, if then what are the clause ?
Nadeem Qureshi
(Expert) 12 November 2011
Section 405. Criminal breach of trust
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
1[Explanation 2[1]
A person, being an employer 3[of an establishment whether exempted under section 17 of the Employees' Provident funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]
4[Explanation 2
A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]
Illustrations
(a) A, being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will, and appropriate them to his own use. A has committed criminal breach of trust.
(b) A is a warehouse-keeper. Z gong on a Journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed criminal breach of trust.
(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the direction and employs the money in his own business. A has committed criminal breach of trust.
(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company's paper, here, though Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.
(e) A, a revenue-officer, is entrusted with public money and is either directed by law, or bound by a contract, express or implied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust.
(f) A, a carrier, is entrusted by Z with Property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust.
Comments
Criminal Conspiracy
Sanction for prosecution is not necessary if a public servant is charged for offence of entering into a criminal conspiracy for committed breach of trust; State of Kerala v. Padmanabham Nair, 1999 Cr LJ 3696 (SC).
Criminal breach of trust: Meaning and extent
It must be proved that the beneficial interest in the property in respect of which the offence is alleged to have been committed was vested in some person other than the accused, and that the accused held that property on behalf of that person. A relationship is created between the transferor and transferee, whereunder the transferor remains the owner of the property and the transferee has legal custody of the property for the benefit of the transferor himself or transferee has only the custody of the property for the benefit of the transferor himself or someone else. At best, the transferee obtains in the property entrusted to him only special interest limited to claim for his charges in respect of its safe retention, and under no circumstances does he acquire a right to dispose of that property in contravention of the condition of the entrustment; Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575.
Entrustment
The word entrusted in the section is very important unless there is entrustment, there can be no offence under the section; Ramaswami Nadar v. State of Madras, AIR 1958 SC 56.
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Section 406. Punishment for criminal breach of trust
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 3 years and fine, or both—Cognizable—Non-bailable—Triable by Magistrate of the first class—Compoundable by the owner of the property in respect of which breach of trust has been committed, with the permission of the court.
Ajay Bansal
(Expert) 12 November 2011
You may file a complaint before police or court, if your item is taken by other party without adopting any legal process.
prabhakar singh
(Expert) 12 November 2011
Is it taking law in their own hands??
yes it is so.they in law only can file suit of realization,can seek even attachment before judgement but can not show this kind of high handiness.FILE FIR .
tapovardhan
(Querist) 12 November 2011
Thanks Prabhakar Ji
ur mobile number plz if u like
Are there specific sections of CrPC or IPC dealing with this situation??
Letter as sent to vendor
Dated: November 01, 2011
Subject: Unlawful impounding of our vehicle after undertaking repairs under insurance claim.
References:
1. Our Enquiry for the purchase of two Innova SUVs
2. Your Quotation dated 3rd Feb 2011.
3. Your invoice after price negotiation.
4. Our Purchase-Order dated .03rd Feb 2011 together with agreed terms and 100% payment to conclude the sale ASAP
5. Your invoice dated 21st June 2011
6. Our payment dated 3rd Aug 2011
7. Your latest invoice dated .01st Nov 2011 for Rs 16110/-
This has reference to my telephonic talk dated 22nd Oct 2011 for accidental repair of my vehicle No. JH 01 AL 3461 with your Sh. Shiv Shankar & Sh. Kuntal.
I was simply advised to send the vehicle, there was no mention of:
· Any advance payment need
· Claim/payment sequence
The inspection was coordinated by Your team. Following inspection of the vehicle by the insurance claim assessor, your team went ahead with repairs.
At no point, none of the TOPLINK personnel thought it necessary to obtain my consent/approval before accepting assessed (Rs. 16110/-) value and/or going ahead with repairs. There was no indication that I shall be required to make full payments before taking back the vehicle and insurance claim shall be settled as separate activity.
Finally on 1st Nov 2011 when my driver reached your OrManjhi Jharkhand workshop for collecting the vehicle, we were asked to pay entire amount of Rs. 16110/-. On our failure to comply with this sudden requirement, you have illegally impounded our vehicle.
Above is strongly protested. We reserve our right for seeking other legal penalties in due course of time. This action is resulting in considerable indirect losses apart from daily loss of Rs.1600/- paid towards hiring of alternate vehicle.
However, while evaluating your claim, our record shows that you have manipulatively collected excess amount of Rs. 88490 on 3rd Aug 2011, which you raised by-passing undersigned. (see table below). Our records indicate an over-payment of Rs. 80,572/- as detailed below:
Considering Price of Innova vxi 7 seater on the Day of Payment and compensating delay in delivery by payment of interest on deposit.
S.No Item Head 1st vehicle 2nd Vehicle
1 Ex Showroom Price
Including VAT as per price on the day of 100% payment / sale conclusion 1218522 1218522
2 Registration (on the day of registration) 7700 58354
3 GPS (on the day of payment as per Purchase order) 17500 17500
4 Corporate Discount (as agreed) -5000 -5000
Total 1238722 1289376
Grand Total 2528098
Delivery Date 19th March 2011 25th May 2011
100 % Advance payment Made on 11th March 2011 for 2 vehicle as per work order (A) 2477444
Additional Invoice raised directly to my Mumbai office by-passing undersign
Payment made on 3rd Aug 2011 (B) 88490
Total Payment made A+B 2565934
Excess payment to M/s Toplink 37836
Interest to be charged @ of 1.5% per month
on Rs.1238722 for 2.3 months due to delayed delivery of second vehicle. 42736
Total Due on M/s Toplink 80572
Note: 1. The delay in 2nd Innova was due to M/s Toplink and/or TOYOTA. Vendor was unable to supply owing to TSUNAMI in Japan. Customer can not be penalized for constraint with Supplier/Vendor with no fault of customer. From our point of view, as per work-order, the vehicle was to be supplied with-in one week.
Customer is entitled for compensation of losses due to non-fulfillment of contract. However, we are merely seeking normal interest in place of loss compensation. M/s TOPLINK was expected to log the order on the day of payment. If M/s TOPLINK was constrained to execute the order, our payment should have been returned along with the reasons for non-compliance after due acceptance of our work-order.
2. Price of GPS as per your quotation as there was no delay in payment; that too, 100% payment.
3. Corporate discount is applicable to both vehicles.
In view of above, it is claimed that:
a) You are in possession of an due payment of Rs. 80572/- from 3rd Aug 2011.
b) You have gone beyond law in impounding our vehicle.
c) We shall be entitled for further interest charges on our excess payment held under your possession.
d) You are also illegally holding our Registration Certificate of our second vehicle No.
JH 01 AL 5469 for non existence payment requirements.
You are requested to make good our losses at your cost and risk failing which we shall be forced to seek legal remedy.
Shonee Kapoor
(Expert) 12 November 2011
Agreed with experts.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
