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1985 DIGILAW 142 (CAL)

Tata Engineering And Locomotive Co Ltd v. State

1985-04-11

G.C.Chatterjee, N.G.Chaudhuri

body1985
JUDGMENT 1. TATA-ENGINEERING and Locomotvie Company Ltd., hereinafter to be referred to as Telco for the sake of brevity, has come up before us in revision filing the present petition under section 401 read with section 482 cr. P. C. to call in question the orders dated 21.1.85 and 20.2.85 passed by the learned' Sub-Divisional Magistrate, Ghatial, district Midnapur, in Misc. Case no. 6 of 85 under section 94 of the Code of Criminal Procedure, 1973. 2. THE antecedent facts may be briefly stated as follows. On 21.1.85 the opposite party No. 2 before us filed a petition under section 94 Cr.P.C. before the aforesaid Sub-Divisional Magistrate. The allegations were that he was the owner of the Tata Mercediz Truck manufactured in the year 1982 bearing no, WTW 1312, having purchased the-same under a Hire Purchase Agreement, for the purpose of his wholesale business in rice. His further allegation was that on 20.1.85 his driver Swadesh Dolui after delivering rice to a dealer in Tamluk was coming back driving the truck with rupees eighteen thousand in cash, all Bengal Road Permit, insurance certificate, blue book and tax token. When the truck reached the crossing of Moirapukur junction near Ghatal, Mr. Men-0n of Bhandari Sales Corporation, Head office Bhandari Building, Jhapotapur, p. O. and P. S. Kharagpur, District Midnapore, described as opposite party in the petition along with a number of toughs armed with weapons surrounded the truck and assaulting the driver of the truck, robbed the driver of possession of all the money and papers aforesaid and the truck itself and drove away the track towards Chandrakona. The driver informed the petitioner about the occurrence and after making inquiries the petitioner learnt that after having taken away the truck by committing theft the opposite party kept the truck concealed in the building of the opposite party aforesaid. In the aforesaid circumstances the opposite party No. 2 before us, viz., narayan Chandra Karmakar, the petitioner before the learned S.D.M. prayed for - issue of search warrant under section 94 of the Code and handing over this truck with papers and 'documents to the petitioner after its recovery. The learned Magistrate granted the prayer. The truck was seized by a police officer attached to Ghatal P. S. on 22.1.85 and handed over to Narayan Karmakar on a bond of rupees one lakh fifty thousand on condition to produce the truck on call. The learned Magistrate granted the prayer. The truck was seized by a police officer attached to Ghatal P. S. on 22.1.85 and handed over to Narayan Karmakar on a bond of rupees one lakh fifty thousand on condition to produce the truck on call. Thereafter Telco filed a petition before the S. D. M. on 25th January 1985 principally for review of the order of the S.D.M. dated 21.1.85 and for restoring the truck to their possession. In. its petition Telco alleged that M/s Bhandari Sales Corporation of Jhapatpur, p. S. Kharagpur was one of their authorised dealers and that they had entered into an agreement with Narayan karmakar on 7.2.83 regarding the truck aforesaid and the said agreement known as Hire Purchase Agreement stipulated various payments on different dates, details of which need not be stated now. The allegation of Telco was that Karmakar having defaulted in payments stimulated under the agreement they were entitled to re-take the truck in duestion in their possession and they had in exercise of that right taken the truck in their possession. They alleged that the petitioner Karmakar' had suppressed material facts and obtained an order from the learned Magistrate fraudulently. The learned Magistrate, after hoarding both the parties, by order dated 20.2.1985 dismissed the petition filed by tolco refused the prayer made by them. The principal reason for dismissing the petition as given by the learned magistrate is that under section. 362 cr. P.C. he could not review his own order. The other reasons are that in view of the facts and circumstances placed before him be was justified in passing the order dated 21.1.85. For expeditious disposal of i (he petition we did not call for the' records of the case from the court below, We treated the petition as a contested petition. Mr. Biman Kanti Basu the learned Advocate for the petitioner Telco vigorously assails the propriety ar|d* correctness of the order of the learned Magistrate. He further contends that the petition filed on behalf of Telco before the learned S.D.M. for reconsideration of his order was virtually an application under section 457 of the Cr.P.C. Mr. Basu hands over to us Xerox copies of the Hire Purchase Agreement and contends that Mr. Karmakar had suppressed material facts from the Court, Mr. He further contends that the petition filed on behalf of Telco before the learned S.D.M. for reconsideration of his order was virtually an application under section 457 of the Cr.P.C. Mr. Basu hands over to us Xerox copies of the Hire Purchase Agreement and contends that Mr. Karmakar had suppressed material facts from the Court, Mr. Karmakar, according to the agreement, was simply a bailee, but the vehicle in question continued to be under the Ownership of Telco and there was no occasion for the issue of such warrant under section 94. Mr. Basu further contends that when exercise of power under section 94 of the Code by the Magistrate was not lawful the learned Magistrate should have made over the truck in question to Telco in exercise of" power under section 457 of the Code. 3. WE have our difficulties in accepting the arguments advanced by Mr. Basu It will be noticed that cases of issue of search' warrant by Magistrate may be broadly classified into two groups, the first group consists of cases under section 93 when ill the context of an investigation following allegation of commission of offence, inquiry or trial a magistrate orders issue of search warrant; the second group consists of cases under section 94. Under Section 94 issue of search warrant is ordered not against the back drop of any investigation, inquiry or trial but upon information and upon the Magistrate having reasons to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable property. In the present case we are not concerned with the objectionable property. Mr. Karmakar's allegation in his petition was that his truck was stolen and the office premises of Bhandari Sales Corporation at jhapatpur, Kharagpur was being used for deposit and sale of the stolen property in the shape of truck. It cannot be forgotten that ownership of Mr. Karmakar, in respect of the truck in question could, be prima facie verified because in his petition he had stated that the truck with blue book, insurance certificate, and All Bengal route permit was taken away. The documents mentioned together with the entry in the blue book were sufficient to prima facie indicate his ownership in respect of the motor vehicle. If Mr. The documents mentioned together with the entry in the blue book were sufficient to prima facie indicate his ownership in respect of the motor vehicle. If Mr. Karmakar was prima facie owner of the truck there was good reasons to believe that the vehicles was stolen if it was actually found in the building premises of Bhandari Sales Corporation. In that belief the learned Magistrate passed his order dated 21.1.85. We see nothing wrong in the said order. 4. WE cannot forget that under section 2 (19) of the Motor Vehicles Act, 1939 "owner" means where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle, which is like. subject matter of a hire purchase agreement, the person in possession of the vehicle under that agreement. We, have noted the Karmakar in his petition had stated that he was owner of the truck in. question under a hire-purchase agreement. Even if all the conditions of the hire-purchase agreement were not complied with still he was owner of the vehicle according to the definition discussed above. Special provisions regarding hire-purchase agreement are contained in section 31 (A) of the aforesaid Act to which we do not make detailed reference. Now, prima facie, Mr. Karmakar was the owner of the vehicle in question. It was found in the office building of Bhandari Sales Corporation Pursuant to the order of the learned Magistrate the police officer carrying on the search and taking possession of the vehicle handed over the truck to the prima facie owner on execution of bond. There was no necessity for starting an elaborate inquiry as to who was the owner or if the possession of the prima facie owner in respect of the truck had seized. To our mind provisions of section 457 of the Code were not attracted to the instant case, the essential conditions for application of section 457 are (1) the property searched and seized was not produced before a. criminal court during an inquiry or trial and (2) the seizure of the property was reported to the Magistrate. In the present case seizure of the truck was no doubt reported to the magistrate but the truck was not seized in circumstances earlier discussed which contemplated an inquiry or trial. In the present case seizure of the truck was no doubt reported to the magistrate but the truck was not seized in circumstances earlier discussed which contemplated an inquiry or trial. If inquiry or trial was not contemplated there was no occasion for production of the truck before the learned Magistrate during an inquiry or trial. We accordingly hold that there is no scope for applying the provisions of section 457 of the Code to the instant case. Mr. Bose handed over to us cyclostyled copies of the hire-purchase agreement entered into by the parties to the case dated 7.2.83. The agreement con templates payment of 35 monthly installments. Mr. Bose contends that the installments were not paid by the hirer and the hirer in the aforesaid circumstances was a simply bailee in respect of the vehicle of which Ms, Telco continued to be the owner under condition no. 5 of the Agreement. He contends that under condition No. 6 the owners were entitled to terminate the agreement with or without notice and forthwith re-take and recover - possession of the vehicle. Mr. Bose contends that Mr. Karmakar "having failed to pay installments the hire-purchase agreement was terminated and oh behalf of Telco their authorised dealer Bhandari Sales Corporation took possession of the truck and Mr. Karmakar supressed this fact from the Court, me cannot accept the above argument of Mr. Bose. There is nothing and no documentary evidence on record that M/s. Telco exercised their option to terminate the contract of hire-purchase on any particular date or in any particular fashion. On the contrary, mr. Dipak Sengupta arguing on behalf of the opposite J party before us, viz., narayan Chandra Karmakar draws our attention to the photostat copy of a letter addressed by Telco to him dated 1.2.1985 annexed' with the affidavit of mr. Karmakar which shows that up to 1st February 1985 when the letter was addressed the hire-purchase agreement was not terminated, on the contrary, payment of instalments which were not paid were demanded. Further, there7 is no indication in the record that Ms. Bhandari Sale Corporation gave Mr. Karmakar to understand in any way that Ms. Telco had terminated the hire-purchase agreement and consequent to such termination Ms. Bhandari Sales corporation their authorised dealers were taking position of the truck. The manner of Ms. Further, there7 is no indication in the record that Ms. Bhandari Sale Corporation gave Mr. Karmakar to understand in any way that Ms. Telco had terminated the hire-purchase agreement and consequent to such termination Ms. Bhandari Sales corporation their authorised dealers were taking position of the truck. The manner of Ms. Bhandari Sales Corporation taking possession of the truck, alleged by Narayan Karmakar in his petition, before the learned Magistrate is not defied by Ms. Telco. The inescapable conclusion from the manner of Bhandari sales Corporation taking possession of the truck is that the possession was taken in a high-handed, surreptitious manner not in exercise of any accrued legal right. If any legal right had accrued to ms. Telco and if they chose to exercise their right to terminate the hire-purchase agreement they would have certainly informed Mr. Narayan Karmakar about the same. In the present case there is no indication that any such information was communicated to Mr. Narayan Karmakar. 5. IN the circumstances aforesaid we are satisfied that the learned Magistrate was perfectly justified in passing the orders impugned and there is no reason to interfere therewith. In the result, the revisional application fails and is dismissed, on contest.