JUDGMENT 1. - Brief factors leading to this petition are that the petitioner Hari Singh and non-petitioner Piarelal obtained a loan from the State Bank of Bikaner and Jaipur, branch Kishanganj for purchasing a tractor. The loan was sanctioned in the names of both the persons and thereafter tractor No. RRO-110 and trolley were purchased. A report was lodged by Piarelal non-petitioner for violation of the provisions of the Motor Vehicles Act, at police station Kishanganj and in pursuance to the said F. I. R. the tractor and the trolley in question were seized by the police station Kishanganj on July 16, 1983. The petitioner then submitted an application for handing over the same to his custody and the learned Judicial Magistrate by order, dated July 16, 1983 gave the same in the supardgi of the petitioner. The tractor and the trolley were given to the petitioner without any condition. Thereafter the non-petitioner submitted an application for handing over the same to him but the learned Judicial Magistrate dismissed his application by order, dated August 3, 1983. 2. The non-petitioner then filed a complaint in the Court of the Judicial Magistrate, Baran for an offence under Section 406 IPC against the petitioner. The learned Magistrate sent the papers for enquiry under Section 156 (3) Cr. P. C. to the police station Kishanganj. Thereafter the police registered a case under section 406 IPC and seized the tractor and trolley in question from the possession of the petitioner. The petitioner then again submitted an application before the learned trial court for handing over the same to him. The learned Magistrate however, by his order, dated October 25, 1983 dismissed the application filed by the petitioner and handed over the same to the non-petitioner Piarelal on supardnama on the condition that he would furnish a surety of Rs. 80,000/- and will not alienate the same during the pendency of the case and will produce the same before the court as and when ordered. In these circumstances the present petition under Section 482 Cr. P. C has been filed by the petitioner Hari Singh for quashing the order of the learned Judicial Magistrate No. 2, Baran, dated- October 5, 1983 and for handing over the tractor and the trolley in pulsation. 3. It was contended by Mr. Tyagi, learned counsel for the petitioner that no criminal case is made out against the petitioner. P. C has been filed by the petitioner Hari Singh for quashing the order of the learned Judicial Magistrate No. 2, Baran, dated- October 5, 1983 and for handing over the tractor and the trolley in pulsation. 3. It was contended by Mr. Tyagi, learned counsel for the petitioner that no criminal case is made out against the petitioner. Even according to the complaint filed by the non-petitioner Piarelal, the dispute was of a civil nature. Admittedly a loan was given in joint name by the Bank and nearly 32 bighas of agricultural land belonging to the petitioner has been mortgaged in favour of the Bank by way of security of the loan. It is further submitted that the learned trial court itself by order, dated July 16, 1983 had handed over the tractor and trolley in question to the petitioner without any condition and it also remains undisputed that at the time of seizure the tractor and trolley in question were in the possession of the petitioner. It is further submitted that prima facie no case under section 406 IPC is made out against the petitioner and the complaint has been lodged merely in order to harass the petitioner and is merely a device for taking the tractor and trolley in possession of the non-petitioner. 4. On the other hand it was contended by Mr Gupta, learned counsel for Piarelal non petitioner that the tractor and trolley in question were given to the petitioner with the consent of the non-petitioner and when the petitioner refused to handover the same back to the non-petitioner Piarelal, the petitioner is certainly guilty of breach of trust and is liable to be punished under section 406 IPC. It is further submitted that there is no perversity in the order of the learned Judicial Magistrate so as to call for any interference by this Court under section 482 Cr. P. C. 5. The facts and circumstances of the case which remain undisputed are that the tractor and trolley in question were purchased jointly by the petitioner as well as non-petitioner Piarelal. By raising a loan from the Bank both the parties have mortgaged their agricultural lands in favour of the Bank by way of security for raising the loan from the Bank. The facts and circumstances of the case which remain undisputed are that the tractor and trolley in question were purchased jointly by the petitioner as well as non-petitioner Piarelal. By raising a loan from the Bank both the parties have mortgaged their agricultural lands in favour of the Bank by way of security for raising the loan from the Bank. It also remains undisputed that at that time when a complaint was lodged by Pirarelal for offence under the Motor Vehicles Act in July, 1983 the tractor and the trolley in question were in possession of the petitioner. After seizure of the same from the possession of the petitioner, it was handed over to the petitioner by order of the Judicial Magistrate, dated July 16, 1983. Thereafter a complaint has been filed by Piarelal on September 16, 1983 under section 406 IPC. This complaint was forwarded by the learned Magistrate for enquiry under Section 156(3) Cr.P.C. and the police has seized the tractor and trolley from the possession of the petitioner by registering a case under section 406 IPC. In view of these circumstances it remains undisputed that both at that time when the tractor and trolley were seized in July 1983 as well as in October, 1983 the same were in possession of the petitioner Hari Singh. Prima facie the joint ownership of Hari Singh as well as Piarelal also remains established. That apart in October, 1983 when the tractor and trolley in question have been seized in pursuance to a case registered under Section 406 IPC, the petitioner Hari Singh was in lawful custody of tractor and trolley in question in pursuance to the order of the Judicial Magistrate himself, dated July 16, 1983. In view of these circumstances, I am clearly of the view that the learned Judicial Magistrate committed a grave error in passing the impugned order, dated October 25, 1983 in handing over the tractor and trolley in question in supardginama to non-petitioner Piarelal. In view of these circumstances this petition is allowed, the order of the learned Judicial Magistrate No. 2, Baran, dated October 25, 1983 is set aside and it is directed that the tractor & trolley in question shall be handed over to the petitioner Hari Singh on supardginama and furnishing a surety of Rs 80,000/-for production of the same before the trial Court as and when directed. The petitioner Hari Singh shall also give an undertaking before the trial court that he will keep the tractor and trolley in question in good condition and will not alienate or sell the same during the pendency of the case before the trial Court. Mr. Gupta, learned counsel for the non-petitioner Piarelal submitted that a direction should also be given that the Bank loan would also be repaid by the petitioner Hari Singh in case he is given the custody of the tractor and trolley in question. The request is not opposed by Mr. Tyagi. learned counsel for the petitioner. As such it is also made clear that the instalments of the Bank loan shall be paid by the petitioner Hari Singh. Learned Judicial Magistrate No. 2, Baran shall take suitable steps for delivering the tractor and trolley in question to the petitioner by taking the same back from the non-petitioner Piarelal.Petition allowed. *******