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1989 DIGILAW 50 (MP)

PANKAJ MEHTA PANNALAL MEHTA v. STATE OF M P

1989-02-09

K.L.SHRIVASTAVA

body1989
JUDGMENT : ( 1. ) THIS revision petition is directed against the order dated 5-10-1988 passed by the Additional Chief Judicial Magistrate (Economic Offences), indore in Cri. Case No. 3291 of 1988 whereby under Section 451 of the Criminal procedure Code, 1973 (for short the Code) interim custody of the Maruti car in question has been ordered to be handed over to Subhash Gupta, the non-applicant No. 2. ( 2. ) CIRCUMSTANCES giving rise to the revision petition are these. On the basis of the written report dated 28-8-1986 lodged with the police by the petitioner, pankaj Mehta, the non-applicant No. 2 Subhash Gupta has been prosecuted in respect of offences under Sections 420, 467 and 468 of the Indian Penal Code. Smt. Pratima, the sister of the petitioner Pankaj Mehta was married to Narendra gupta in the year 1984. The non-applicant No. 2 Subhash Gupta is the elder brother of the said Narendra. Narendra, and his wife Pratima reside in America and the non-applicant No. 2 Subhash resides in America as well as in India. ( 3. ) ACCORDING to the case set-up by the petitioner, he needed a Maruti car for his use. As payment in dollars entitles the intending purchaser to priority, he contacted Narendra Gupta who advanced dollars equivalent to Rs. 10,000/-and directed the dealer in India to register a Maruti car in the name of Pankaj. Subsequently Subhash Gupta paid 5600 dollars towards the balance of the price of the car. The informant Pankaj has re-paid Narendra by depositing in August 1984 Rs. 10,000/- in Indian currency in the account of the former and the non-applicant No. 2 Subhash received back 5600 dollars in December 1984 from Smt. Pratima, the petitioners sister. ( 4. ) IT was on the basis of the authority-letter from the petitioner that the non-applicant No. 2 obtained delivery of the Maruti car in March 1985. It remained with the petitioner only for a few days at Indore and then at the request of the non-applicant No. 2 it was handed over to the latter for use at Indore. However, the non-applicant No. 2 without informing the petitioner took away the vehicle to delhi in March 1985 itself. ( 5. ) THE petitioner several times demanded back the car from the non-applicant No. 2 but the latter avoided returning it. However, the non-applicant No. 2 without informing the petitioner took away the vehicle to delhi in March 1985 itself. ( 5. ) THE petitioner several times demanded back the car from the non-applicant No. 2 but the latter avoided returning it. No firm action could be taken in the matter because of the relationship between the parties. Somewhere in April 1986, the relations between Pratima and Narendra in America became strained and the petitioners father Pannalal, Advocate, Indore had gone to America in order to settle the dispute between them. It was after consulting his father that the petitioner on 28-8-1986 lodged the written report with the police. ( 6. ) RELYING on the decision in Ramprakashs case, 1978 MPJJ SN 52 learned counsel for the petitioner contends that the petitioner admittedly being the registered owner of the vehicle is entitled to its custody. Reliance has also been placed on the provision embodied in Section 4 of the Benami Transactions (Prohibition) Act, 1988 (for short the Benami Act ). ( 7. ) THE contention of the learned counsel for the non-applicant No. 2 is that though the car has been purchased in the name of the petitioner and is registered in his name, no part of its price has been paid by the petitioner. He urges that the fact that from the time of the purchase the vehicle has been in the possession of the non-applicant No. 2 coupled with the petitioners silence in the matter for months together eloquently indicates that he has very little to do with the vehicle. According to the learned counsel, in the circumstances of the case, no interference in exercise of this Courts revisional jurisdiction is called for. Reliance was placed on the decision in Mohanlals case, 1980 MPLI SN 35. ( 8. ) THE point for consideration is whether the revision petition deserves to be allowed. ( 9. ) IT may be stated at the outset that as pointed out in the decision in Mohanlals case (supra) order passed by a Magistrate allowing an application of the accused for interim custody of the truck is not an interlocutory order and revision lies against it. ( 10. ) SECTION 451 of the Code provides for order for custody and disposal of property pending trial and Section 452 provides for order for disposal of the property at the conclusion of trial. ( 10. ) SECTION 451 of the Code provides for order for custody and disposal of property pending trial and Section 452 provides for order for disposal of the property at the conclusion of trial. The phraseology used in these two sections is different In the first of them there is no reference to the question of entitlement. However, the discretion vested in the court under section 451 has to be judicially exercised and it cannot be contended that thereunder possession should be delivered irrespective of the question of entitlement to possession. ( 11. ) IN the decision in Ramprakashs case (supra) it has been pointed out that provisions of Sections 22, 24 and 31 of the Motor Vehicles Act, 1939 would show that a person in whose name the vehicle is registered is prima facie owner till the registration is transferred in the name of some other person. It is the registered owner who is liable for breach of obligations under the Act and, therefore, it is not correct to contend that possession on the date of seizure of the vehicle is the true criterion pending decision in a criminal case. The decision in Mohanlals case (supra) sounds a discordant note. Therein it has been held that mere absence of intimation of transfer to the Regional Transport Authority did not render the transfer illegal and in the circumstances the order regarding custody by the magistrate to the accused was not proper in view of the admitted sale of the vehicle by him to J. ( 12. ) IN the decision in Gyanchand vs. Ashok Kumar, 1984 MPWN 33 also it has been pointed out that there is no invariable rule that the criminal court must, necessarily, deliver the interim custody of the seized motor vehicle to the person in whose name it is registered with the transport authorities though in majority of cases relating to such dispute it is considered safer to deliver interim custody to the person having the registration in his favour. ( 13. ) IN the instant case it is not without significance that right from March 1984 till the petitioner lodged the written report dated 28-8-1986 to the police, the car remained with the non-applicant No. 2 without any visible sign of protest from the petitioner. It is also pertinent to point out that the car had met with an accident and the letter Ex. It is also pertinent to point out that the car had met with an accident and the letter Ex. D-2 dated 25-2-1986 which is admittedly in the handwriting of the petitioners father, embodies instructions to the non-applicant no. 2 towards realisation from the insurance company. In this letter there is not the slightest indication regarding any misdeed by the non-applicant No. 2 relating to the car in question. The contention of the learned counsel for the non-applicant No. 2 is that these circumstances lend credence to his submission that the strained relations between Pratima and Narendra and the ultimate admitted divorce between them is at the root of this unwarranted false criminal prosecution for quick relief. He further urges that admittedly the dollars with which the car has been purchased have been supplied by the non-applicant No. 2 and his brother narendra and the petitioner has yet to prove that they have been re-paid. According to the learned counsel merits of the case apart, on the facts and in the circumstances of the case no exception can be taken to the impugned order. ( 14. ) REFERENCE at this stage may be made to the provisions in sub-sections (1)and (2) of Section 4 of the Benami Act, which run thus : -4 (1): "no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behali of a person claiming to be the real owner of such property. " I am of the view that in a criminal prosecution by the State the aforesaid provisions cannot be availed of in determining the question of interim custody under Section 451 of the Code. ( 15. ) IT has to be remembered that this Courts revisional jurisdiction is not only limited in scope but is also discretionary. In exercise of that jurisdiction the court steps in to obviate miscarriage of justice. ( 16. ( 15. ) IT has to be remembered that this Courts revisional jurisdiction is not only limited in scope but is also discretionary. In exercise of that jurisdiction the court steps in to obviate miscarriage of justice. ( 16. ) ON a careful consideration of the facts and circumstances of the case I am clear in my mind that no case for interference in exercise of revisional jurisdiction has been made out and the revision petition deserves to be dismissed. ( 17. ) FOR the foregoing reasons the revision petition fails and is consequently dismissed. Revision petition dismissed.