KISHAN PANDURANG KAGDE v. BALDEV SINGH GIAN SINGH — 1975 DIGILAW 1 (BOM)

JUDGMENT SAPRE J-This criminal application has been filed by the original complainant Kishan Pandurang Kagde to challenge the order passed by the Additional Chief Metropolitan Magistrate, 2nd Court, Mazgaon, Bombay, on 3rd March 1975 under section 451 of the Code of Criminal Procedure, 1973, directing that the motor lorry, which was the subject-matter of the offence of theft, be given in the custody of original accused No.1 Baldevsingh Giansingh pending conclusion of the trial on a bond of Rs. 50,000 with one surety in the like amount to produce the vehicle in Court whenever called upon to do so. 2. The motor lorry bearing registration No. MHB 3468 was owned by accused No. 1 Baldevsingh. On 16th December 1974, he agreed to sell it to the complainant Kishan for a consideration of Rs. 44,000. Out of this amount, an amount of Rs. 31,000 was paid by the complainant to accused No.1 by 31st December 1974. The remaining amount was to be paid on 20th January 1975 on which date the vehicle was to be transferred in the name of the complainant. According to the complainant, possession of the vehicle was given to him by accused No. I and since then the vehicle had remained in his possession. Certain documents were passed by accused No.1 in favour of the complainant acknowledging receipt of the payment of the amount and the fact of delivery of possession of the vehicle to the complainant. It was mentioned in these writings that henceforward the complaint would be responsible for all liabilities in respect of the vehicle, although the vehicle had not yet been transferred in his name in the records of the Regional Transport Officer. It appears that on 27th January 1975, the parties wanted to finalise the transfer by going to the Office of the Regional Transport Officer, but could not do so as there was heavy rush in the office and they agreed to effect the transfer on the following day. On that night, the vehicle was parked at Katha Bazar. It was in possession of Kishan and his driver Madhukar. Baldevsingh and his driver Jailsingh (accused No.2) were also present at Katha Bazar. When Madhukar went to take his food and while Kishan was inside the vehicle, the two accused suddenly started the vehicle with Kishan still inside and drove it to Sion Koliwada. It was in possession of Kishan and his driver Madhukar. Baldevsingh and his driver Jailsingh (accused No.2) were also present at Katha Bazar. When Madhukar went to take his food and while Kishan was inside the vehicle, the two accused suddenly started the vehicle with Kishan still inside and drove it to Sion Koliwada. At Sion Koliwada, Kishan found himself amongst hostile people on the side of Baldevsingh. He, therefore, jumped out of the vehicle and came to Katha Bazar. His driver Madhukar lodged a complaint of theft at Pydhonie Police Station against Baldevsingh and Jailsingh. In the meantime, the two accused had taken the vehicle to Nasik. The police arrested both the accused at Nasik and also seized the vehicle and brought it to Bombay. The police registered an offence under section 379 of the Indian Penal Code against Baldevsingh and Jailsingh. 3. On 20th February 1975, accused No.1 made an application before the Additional Chief Metropolitan Magistrate, 2nd Court, Mazgaon, Bombay, for return of the vehicle. His main contention in that application was that he is the registered owner of the vehicle and hence it should be returned to him. Kishan also made an application to the learned Magistrate for return of the vehicle to him. His contention was that he had bought the vehicle from accused No. 1 and had paid a substantial amount out of the price to accused No. 1. The vehicle had also been given in possession of the complainant by accused No.1, as it was sold to the complainant by accused No.1. Accused No.1 had also handed over forms duly signed for the transfer of the said vehicle in the name of the complainant. Only the formality of effecting the transfer in the certificate of registration had remained. But as the complainant had bought the vehicle from accused No.1 and accused No.1 had also delivered possession of the vehicle to the complainant, it was proper that custody of the vehicle should be given to the complainant. 4. The learned Magistrate went through the documents produced by the complainant, showing that he had purchased the vehicle from accused No.1 for Rs. 44,000 and had paid Rs. 31,000 out of that amount to accused No.1. He expressed some doubt whether accused No. 1 had parted possession of the vehicle in favour of the complainant. 4. The learned Magistrate went through the documents produced by the complainant, showing that he had purchased the vehicle from accused No.1 for Rs. 44,000 and had paid Rs. 31,000 out of that amount to accused No.1. He expressed some doubt whether accused No. 1 had parted possession of the vehicle in favour of the complainant. But he observed that even if accused No. 1 has delivered possession of the vehicle to the complainant, since accused No.1 was still the registered owner of the vehicle, he must be deemed to be in possession or at least in constructive possession of the vehicle and the possession of the complainant would be at the most permissive possession. Holding that the complainant is not entitled to possession of the vehicle till the transfer of the vehicle is effected in the certificate of registration, the learned Magistrate observed that the proper order to be made was to give custody of the vehicle to accused No.1. He accordingly made the impugned order. 5. The learned Magistrate does not seem to have expressed any doubt that accused No.1 had sold the vehicle in question to the complainant for a consideration of Rs.44,000 and the complainant had paid Rs. 31,000 out of the above amount to accused No.1. This transaction is evidenced by the documents on record. There is first the deposit receipt (photostat copy) dated 16th December 1974 under which the complainant had paid Rs. 2,500 to accused No. 1 out of the agreed price of Rs. 44,000. There is then the delivery note (photostat copy) dated 31st December 1974, which shows that the complainant had paid a total amount of Rs. 31,000 out of the amount of Rs. 44,000 to accused No.1. The deposit receipt (photostat copy) dated 31st December 1974 (wrongly mentioned as 16th December 1974) also supports the complainant's version that he had paid Rs. 31,000 to accused No.1 out of the agreed price of Rs. 44,000. 6. The learned Magistrate seems to have expressed some doubt as to whether accused No.1 had parted possession of the vehicle in favour of the complainant. 31,000 to accused No.1 out of the agreed price of Rs. 44,000. 6. The learned Magistrate seems to have expressed some doubt as to whether accused No.1 had parted possession of the vehicle in favour of the complainant. But the delivery note and the deposit receipt both dated 31st December 1974, the first of which has been attested by accused No.1 and the second of which has been executed by accused No.1, clearly bear out the fact that possession of the vehicle was given by accused No.1 to the complainant. There are also on record photostat copies of two applications, both dated 1st January 1975, in the prescribed forms signed by accused No.1 for transfer of the vehicle in the name' of the complainant. There is then the photostat copy of a letter dated 1st January 1975, addressed by accused No.1 to the Regional Transport Officer, Bombay, stating that he had sold the vehicle in question to the complainant and he had no objection to transfer the vehicle in the name of the complainant. In the application made by accused No.1 before the learned Magistrate for return of the vehicle to him, all that he had stated was that he is the registered owner. He stated in that application that pydhonie Police Station had taken possession of the vehicle, but he did not state that that possession was taken from him. As against this, in the application given by the complainant, he had specifically stated that accused No.1 had given possession of the vehicle to the complainant and it was in his possession till the date of the commission of the alleged offence. Accused No.1 seems to have filed a sort of a rejoinder to this application of the complainant, in which all that he stated was that the application of the complainant for custody of the vehicle did not show how he claimed possession of the vehicle. Even in this rejoinder, accused No.1 did not state that the vehicle was in his possession and while it was in his possession that the police had seized it. Even in this rejoinder, accused No.1 did not state that the vehicle was in his possession and while it was in his possession that the police had seized it. From the various documents to which accused No.1 was a party, therefore, as also from his conduct, there can be no manner of doubt that accused No.1 did deliver possession of the vehicle to the complainant and it was in the possession of the complainant till the date of the commission of the alleged offence. 7. The learned Magistrate, however, has taken the view that in the case of goods like a motor vehicle, the provisions of the Sale of Goods Act will not apply, because there is a special Act, namely, the Motor Vehicles Act, by the provisions of which transactions in respect of motor vehicles are governed. The learned Magistrate has observed that accused No.1, who is admittedly the registered owner of the vehicle, must be regarded as the real owner and the complainant is not entitled to possession of the vehicle till it is transferred in his name. 8. We are unable to agree with the view taken by the learned Magistrate. He has not cited the relevant provisions of the Motor Vehicles Act. But it appears that he had in view section 31. That section reads as under :- "31. Transfer of ownership.-(1) Where the ownership of any motor vehicle registered under this Chapter is transferred,- (a) the transferor shall, within fourteen days of the transfer, report the transfer to the registering authority within whose jurisdiction the transfer is effected and shall simultaneously send a copy of the said report to the transferee; (b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he resides, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration. (2) A registering authority other than the original registering authority making any such entry shall communicate the transfer of ownership to the original registering authority." The section begins with the words "Where the ownership of any motor vehicle which has already been registered is transferred, etc:' That means that after there is a change in ownership, the provisions of the section have to be followed. Under clause (a) of sub-section (1), the transferor has to report, within 14 days of the transfer, to the registering authority the fact of the transfer. Under clause (b) of sub-section (1), the transferee also has to report the fact of the transfer within 30 days of the transfer to the registering authority. The language of the section itself thus makes it clear that it is only after the ownership of the vehicle is transferred that a report has to be made to the registering authority to effect a change in the name of the owner in the certificate of registration where the name of the previous owner has been recorded. The transfer of registration thus follows the transfer of ownership and not vice versa. In other words, the transfer of ownership does not flow from the transfer of registration. The transfer of ownership does not, depend upon the transfer of registration. The object underlying the provisions in section 31 is that the registering authority must have the name of the proper person who is liable to pay taxes. Also, perhaps, in the case of an accident, the authorities must have the name of the proper person upon whom liability can be fixed for damages or compensation resulting from the accident. There is no provision in the Motor Vehicles Act which deals with the transfer of ownership of the vehicle which, like any moveable property, is governed by the Sale of Goods Act. The provision in section 31 of the Motor Vehicles Act is only to the effect that after the change of ownership of the vehicle has taken place, corresponding change should be recorded in the certificate of registration, that is, in place of the previous owner the name of the new owner should be substituted. The transfer of ownership thus takes place from the date of sale and not from the date on which the name of the transferee is recorded in the certificate of registration. The transfer of ownership thus takes place from the date of sale and not from the date on which the name of the transferee is recorded in the certificate of registration. The learned Magistrate does not seem to have disputed, at this stage, the various documents showing the sale of the vehicle by accused No. 1 to the complainant and delivery of possession of the vehicle by accused No.1 to the complainant. As prima facie, ownership and possession had both passed in favour of the complainant, the proper order to be made was to give custody of the vehicle to the complainant pending conclusion of the trial. It was not a proper order to give custody of the vehicle to accused No.1, especially when the allegation was that he had committed theft of the vehicle after selling and giving possession of the vehicle to the complainant. 9. Mr. Nair for original accused Nos. 1 and 2 cited a few decisions before us to show that the proper order to be made in such cases was to give custody of vehicle to the persons in whose name the certificate of registration of the vehicle stands. Those cases were decided on their own facts. Even then the principle laid down in those cases was that the person in whose name the motor vehicle stands with the registering authority should be entitled to remain in custody thereof and not any other person unless he is able to establish his superior title or claim over it. In the instant case, the documents, to which accused No.1 is a party, clearly show the sale of the vehicle by him to the complainant, his receiving a substantial portion of the amount of the price and his delivering possession of the vehicle to the complainant. There are also applications in the prescribed forms bearing the signature of accused No.1 for the transfer of the vehicle in the name of the complainant. These circumstances would not only justify but should make the Court lean in favour of making an order for the complainant, more so when the allegation is that accused No. 1 had committed theft of the vehicle while it was in the possession of the complainant. 10. Mr. Nair also contended before us that the present application is in the nature of a revision application. 10. Mr. Nair also contended before us that the present application is in the nature of a revision application. Since it was against an interlocutory order, it did not lie in view of the bar under section 397 (2) of the Code of Criminal Procedure, 1973. Secondly, a revision application against the order of the Additional Chief Metropolitan Magistrate, Bombay, lay before the Sessions Judge, Greater Bombay, and not to the High Court. 11. These submissions of Mr. Nair could have survived, had this been a revision application. But it has not been filed as an application in revision. The title shows that it is filed as a criminal miscellaneous application. It is obviously filed under section 48l of the Code of Criminal Procedure, 1973, invoking the inherent powers of the High Court since no revision application against an interlocutory order is maintainable. It is true that there is no reference to section 482 in the application and it has not been stated that the applicant was invoking the inherent powers of the High Court. But these things can be read in the application. Under section 482, there is inherent power in the High Court to make such orders as may be necessary, amongst other things, to secure the ends of justice. In the instant case, the order passed by the learned Magistrate that custody of the motor lorry be given to accused NO.1 is clearly unjust. The documents, prima facie. show that accused No.1 had sold the vehicle to the complainant; the complainant had paid a substantial amount out of the price and accused No.1 had delivered possession of the vehicle to the complainant. Accused No.1 had also signed the necessary forms for the transfer of the vehicle in the name of the complainant. The allegation is that accused No.1 had committed theft of the vehicle while it was in the possession of the complainant. In these circumstances, it was not proper to give custody of the vehicle to accused No.1. 12. In the result, we allow the application and make the rule absolute. The order passed by the learned Magistrate is set aside and it is ordered that the motor lorry bearing registration No MHB 3468 be given in the custody of the complainant Kisan Pandurang Kagde pending conclusion of the trial on a bond of Rs. 12. In the result, we allow the application and make the rule absolute. The order passed by the learned Magistrate is set aside and it is ordered that the motor lorry bearing registration No MHB 3468 be given in the custody of the complainant Kisan Pandurang Kagde pending conclusion of the trial on a bond of Rs. 50,000 with one surety in the like amount to produce the vehicle in Court whenever caned upon to do so pending the disposal of the trial. The complainant will, however, not use the vehicle unless and until he obtains the necessary permission from the Regional Transport Officer for which he may apply and the Regional Transport Officer may consider his application on merits. Rule made absolute.