Research › Browse › Judgment

Allahabad High Court · body

1985 DIGILAW 1165 (ALL)

Bechu Lal Vishwakarma v. Gurmeet Singh

1985-12-04

V.K.KHANNA

body1985
JUDGMENT V.K. Khanna, J. - This application under Section 482, Cr.P.C. has been filed for quashing the order dated 23.7.1984 passed by the Special Judicial Magistrate, Varanasi. 2. The brief facts for the purposes of deciding the present application are that a complaint was filed by opposite-party Gurmeet Singh against the applicant and another for having committed an offence under Sections 420, 406 and 504, I.P.C, which was registered as Criminal Case No. 220 of 1984 before the Special Judicial Magistrate, Varanasi. According to the complaint filed by the opposite-party the allegation in a nutshell is that certain machinery and other parts were purchased by the applicant from the opposite-party and the payment of the same has not been made. From the complaint it appears that the total value of the machinery and other parts which had to be paid by the applicant came to Rs. 16,665/-. The aforesaid machinery etc, seized from the possession of the applicant in pursuance of an application moved by the opposite-party. The applicant moved an application before the Special Judicial Magistrate for giving the aforesaid machines in the Supurdgi of the applicant. It may be mentioned that before giving of this application the Special Judicial Magistrate had given an order of giving the machinery in the Supurdgi of the opposite-party. However, the same has not yet been given in the supurdgi of the opposite-party as the applicant has moved a stay application for staying the operation of the aforesaid order and as stated above has also moved an application that the property be given in his supurdgi. The Magistrate by his order dated 23.7.1984 has ordered that the application moved by the applicant shall be disposed of at the time of the disposal of the case meaning thereby that the application will be dealt with at the time of conclusion of the trial. 3. The learned counsel for the applicant in this application has challenged the aforesaid order on the ground that the application moved by the applicant is under the provisions of Section 451 Cr.P.C. and the concerned Magistrate has illegally deferred the disposal of that application by his order dated 23.7.1984 till the time of conclusion of the trial. 3. The learned counsel for the applicant in this application has challenged the aforesaid order on the ground that the application moved by the applicant is under the provisions of Section 451 Cr.P.C. and the concerned Magistrate has illegally deferred the disposal of that application by his order dated 23.7.1984 till the time of conclusion of the trial. It has been argued that the powers conferred under Sections 451 and 452, Cr.P.C. had to be exercised at two different stages i.e. the power conferred under section 451, Cr.P.C. has to be exercised during the pendency of the trial for the preservation of the property and the power conferred under Section 452, Cr.P.C. has to be exercised for passing final order in respect of the case property at the conclusion of the trial. By passing the impugned order dated 23 7.1984 the Special Judicial Magistrate has in fact refused to exercise his jurisdiction under Section 452, Cr.P.C. which virtually meant that he will exercise his powers under Section 452, Cr.P.C. and not under Section 451, Cr.P.C. 4. The learned counsel for the opposite-party has vehemently urged that the powers under Section 482, Cr.P.C. should not be exercised in this case as the Special Judicial Magistrate has not refused to exercise his powers under Section 451, Cr. P.C. and has not as yet passed any order on the application moved by the applicant. I am unable to accept the aforesaid contention raised by the learned counsel for the opposite-party inasmuch as a bare perusal of the order passed by the Special Judicial Magistrate clearly shows that he will dispose of the application only at the conclusion of the trial. At the conclusion of the trial there is no question of exercising the powers under Section 451, Cr.P.C. as at that stage the Special Judicial Magistrate will be left only to pass orders under Section 452, Cr.P.C. 5. As far as the merits in the sense that in whose supurdgi the property should be given during the pendency of the trial is concerned, it may be noticed that both the parties have fairly offered to deposit the entire value of the machinery as mentioned in the complaint in cash before the court concerned along with interest at 12% for two years as security for production of the machinery whenever required by the Court. The machinery in question according to both the parties is bound to deteriorate in case it remains in police custody and is liable to become a junk. Looking to the entire facts and circumstances of the case I am also of the opinion that the machinery should not be allowed to become a junk and should either be given in the supurdgi of the applicant or the opposite-party. it has now to be seen on the facts and circumstances of the case existing on the record as to in whose supurdgi the machinery should be given. It is not disputed that the machinery was seized from the applicant and the only claim which the opposite-party is making is regarding the price of the machinery as having not been paid to him. There cannot be any doubt even on the own averments made in the complaint that the machinery was in fact sold to the applicant and if one looks to the matter with the angle of a civil contract the liability of the applicant would only be to pay the price plus whatever interest the court may award on the sale price. As far as the production of the machine is concerned that is ensured by the offers made by the parties. On the facts which have been narrated above I am of the opinion without expressing any opinion on the merits of the case that at this stage only for the purposes of giving the property in custody during the pendency of the trial in exercise of powers only under Section 451, Cr.P.C. the applicant has a better claim for the custody of the property subject to his depositing an amount of Rs. 21,100/- in cash before the concerned Magistrate within a period of one month from today. In case the amount is not deposited within the time indicated above the property shall be given in the supurdgi of the opposite-party on the same conditions which are being imposed on the applicant. The amount which is directed to be deposited in cash in this order before the Magistrate shall be immediately invested by the Magistrate in some fixed deposit receipt in a nationalised bank. The amount which is directed to be deposited in cash in this order before the Magistrate shall be immediately invested by the Magistrate in some fixed deposit receipt in a nationalised bank. It is also being made clear that in case the applicant is finally convicted and the property is finally ordered to be released under Section 452, Cr.P.C. in favour of the opposite-party the court will also advert itself to the question as to whether the opposite-party is also entitled to compensation because of the fact that the value of the machinery given in the custody of the applicant has been reduced because of its use by the applicant. it is also being made clear that in case the applicant is acquitted and entitled to the property under Section 452, Cr.P.C. the applicant will be entitled to get back the money along with interest. 6. For the reasons stated above the present application is allowed. The order dated 23.7.1984 passed by the Special Judicial Magistrate, Varanasi is quashed. The Special Judicial Magistrate shall see that the trial is concluded within a period of six months from the date of producing a certified copy of this order before him. 7. A certified copy of this order shall be given to the learned counsel for the parties on payment of usual charges within week.