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Rajasthan High Court · body

1990 DIGILAW 1 (RAJ)

Mohammed Yakub v. The State Of Rajasthan

1990-01-01

B.R.ARORA

body1990
JUDGMENT 1. - This miscellaneous petition is directed against the order dated May 15, 1987, passed by the Additional Chief Judicial Magistrate No. 2, Jodhpur, by which the learned Additional Chief Judicial Magistrate ordered for the delivery of the truck No. RRN 7347 to the non-petitioner No 2 Shri Pyare Miya. 2. Briefly stated, the facts of the case are that on March 26, 1987, a complaint Under Section 392, I.P.C. was filed by Shri Pyare Miya (non-petitioner No. 2) in the Court of the Additional Chief Judicial Magistrate No. 2, Jodhpur, against Mohammed Yakub, alleging therein that he purchased a truck No RRN 7347 from Mohammed Hafeez for a consideration of Rs. 2,23,000/- and paid Rs. 50,000/- and the rest of the amount was to be paid to Mohammed Hafeez. The amount of the outstanding instalments payable to the bank was also, to be paid by him as the truck was purchased under the hire purchase agreement with the bank. It was further stated in the complaint that the possession of the truck was given to him by Mohammed Hafeez and registration certificates, etc. of the concerning truck were also given to him, which are with the lawyer at Bundi and will be produced after sometime. It was further mentioned that originally this truck belongs to Mohammed Yakub, from whom Mohammed Hafeez purchased it for a consideration of Rs. 2,31,000/- and paid an amount of Rs. 55,000/- on February 22, 1986. It was further mentioned in the complaint that on March, 21, 1987, near AKHALIYA CHORAHA, Jodhpur, Mohammed Yakoob intercepted the truck and forcibly took it away from his Driver Sona Ram and Khalasi Akhey Singh. This complaint of the non-petitioner No. 2 was sent Under Section 156(3), Cr. P.C. for investigation to the Police Station, Pratapnagar, Jodhpur, and on the basis of this complaint, the police registered a case Under Section 392, I.P.C. against Mohammed Yakub, and the police, after necessary investigation, presented a challan Under Section 392, I.P.C. against the accused Mohammed Yakub and the police seized the truck No. RRN 7347 from the petitioner. After seizure of the truck, the petitioner Mohammed Yakub as well as the non-petitioner No. 2 Pyare Miya moved application for the delivery of the truck to them. After seizure of the truck, the petitioner Mohammed Yakub as well as the non-petitioner No. 2 Pyare Miya moved application for the delivery of the truck to them. The learned trial Court, by its order dated May 15, 1987, rejected the application of Mohammed Yakub and allowed the application of Pyare Miya and ordered for the delivery of the truck to Pyare Miya. It is against this order that the present application Under Section 482, Cr. P.C. has been filed by the petitioner Mohammed Yakub. 3. I have heard the learned Counsel for the petitioner as well as the learned Public Prosecutor and the learned Counsel for the respondent No. 2 4. It is contended by the learned Counsel for the petitioner that the petitioner purchased a new truck No. RRN 7347 under the Hire Purchase Agreement with the State Bank of India, Basni Branch, Jodhpur. While purchasing the truck the petitioner took Rs. 2,61,600/- from the bank and at that time he himself paid Rs. 60,000/-. After purchasing the truck, he made payment of the instalments to the bank against this loan and at present a loan of Rs. 1,43,350/- remains outstanding and for the recovery of which the petitioner has received a notice from the bank. The Bank has also filed a civil suit against the petitioner for the recovery of this out-standing amount. He has further submitted that the petitioner had a Fixed Deposit Receipt in the bank, which has become matured and the amount of Rs. 50,000/- of the F.D.R. has also been adjusted by the bank against that loan amount account. The non-petitioner No. 2 had not paid any amount either of the instalments to the bank or to the petitioner against the sale price. The petitioner never sold the truck either to Hafeez Mohammed or to the non-petitioner No. 2. The learned Counsel for the petitioner also submitted that the registration of the truck, as well as the insurance etc. stand in his name. The petitioner obtained a 'National Permit' of this truck, which, upto this date, stands in his name. He, therefore, contended that the petitioner was the person best entitled for the delivery of the truck, but the learned lower Court committed an error in ordering for the delivery of the truck to the respondent No. 2. stand in his name. The petitioner obtained a 'National Permit' of this truck, which, upto this date, stands in his name. He, therefore, contended that the petitioner was the person best entitled for the delivery of the truck, but the learned lower Court committed an error in ordering for the delivery of the truck to the respondent No. 2. The learned Public Prosecutor, on the other hand, has supported the order passed by the learned lower Court. The learned Counsel for the respondent No.2 has, also, supported the order passed by the learned lower Court and submitted that the truck was in his possession through his driver and Khalasi and it Was forcibly taken away by the petitioner from them on March,21, 1987, regarding which a First Information Report was lodged against the petitioner and the truck was seized. The police, after necessary investigation, presented a challan Under Section 392, I.P.C. against the petitioner and the cognizance has been taken by the learned lower Court. He further submitted that as the petitioner is an accused in that case, the delivery of the truck should not be handed-over to him. He has further submitted that he being the bonafide purchaser of the truck, is the person best entitled for the delivery of the truck. 5. I have considered the rival submissions made by the counsel for the parties. 6. I have to see as to who is the person best entitled for the custody of the truck ? It is not in dispute that the petitioner purchased the truck under the hire purchase agreement after taking the loan from the State Bank of India, Basni Branch, Jodhpur. He, at the time of taking the loan, paid Rs. 60,000/- as his own contribution share. He also made payment of the instalment against the amount of the loan. Out of the amount of Rs. 2,31,000/-, only an amount of Rs. 1,41,350/- is outstanding and for the recovery of this amount, the bank has issued Show Cause Notice to the petitioner and has also filed a Civil Suit against him for the recovery of this amount. The Registration and the insurance of the truck still stand in his name. There is no document of record except a receipt of Rs. 55,000/-, which is said to have been issued by the petitioner in favour of Mohammed Hafeez Khan for taking an amount of Rs. The Registration and the insurance of the truck still stand in his name. There is no document of record except a receipt of Rs. 55,000/-, which is said to have been issued by the petitioner in favour of Mohammed Hafeez Khan for taking an amount of Rs. 55,000/- against the sale price of the truck No RRN 7347, which could show that the delivery of the truck was handed over to Mohammed Hafeez Khan or to any other person. It is an admitted position that the price of the truck is about 2,31,000/-, then how against the payment of Rs. 55,000/- only, the truck could have been delivered to Mohammed Hafeez Khan ? Except this receipt, there is no other document on record, which could show that the truck was sold by the petitioner to Mohammed Hafeez Khan, Even this receipt does not show that the truck was sold or the delivery of the same was given to him. Even as per the case of the respondent No. 2, Pyare Miya, he had only paid Rs. 55,000/- to Monammed Hafeez Khan. Nobody has placed on recorded any evidence showing the payment of the amount of the instalments to the bank by him. 7. It is, no doubt, true that if a person is accused in a case and the charge sheet against him has been submitted by the police after necessary investigation in the Court regarding that truck involved in the case, then at the time of considering the case of the accused for giving him the custody of the truck, the matter should be closely scrutinised and unless there are special circumstances, normally the custody of the truck should not be given to him during the pendency of the case. In considering the case of the accused regarding the delivery, from whom the truck has been seized, it is to be seen whether there is any evidence on record, on the basis of which it could be inferred than the accused has sold or parted-with the possession of the truck for a consideration and whether the possession of the accused was a lawful or not. Merely because a case has been instituted against him and the Court has taken cognizance, that itself will not disentitle the accused for considering his case for custody of the truck. Merely because a case has been instituted against him and the Court has taken cognizance, that itself will not disentitle the accused for considering his case for custody of the truck. If this will be allowed to happen then in each and every case any person may come and lodge a report against the person though he is the lawful owner of the truck or the motor vehicle seized and if the Court takes cognizance then as he would be an accused in the case, his case will not be considered for giving the delivery of the truck. Pendency of the criminal case against it self will not take out the case of the accused out of the consideration zone though it may be considered as a circumstance against him. His case regarding the custody of the truck can be considered alongwith the case of the others and the Court, on the attending circumstances, can decide as to who is the person best entitled for the delivery of the truck. In these proceedings the Court decides only the question of safer custody during the pendency of trial and not the question of ownership. 8. Merely because a criminal case is pending against the petitioner regarding this very truck it cannot be said that the petitioner is not entitled for delivery of the truck, particularly when the petitioner, at the time of purchase of the truck, made payment of Rs. 60,000/- for the purchase of the truck and thereafter he, also, paid the instalments towards the loan amount of the bank. Even a sum of Rs. 50,000/- of his Fixed Deposit Receipt, which became matured, was adjusted by the bank against this loan account. The bank has, also, initiated recovery proceedings against the petitioner and has also instituted a civil suit against him. The 'National Permit' also stands in the name of the petitioner. The learned lower Court, while deciding the point as to who is the person best entitled for the delivery of the truck, has not taken into consideration this aspect of the case. In the facts and circumstances of the case, I am of the opinion that the learned lower Court was not justified in ordering the delivery of the truck to the respondent No. 2 Pyare Miya. In my view, the petitioner Mohammed Yakub is the person best entitled for the delivery of the truck. 9. In the facts and circumstances of the case, I am of the opinion that the learned lower Court was not justified in ordering the delivery of the truck to the respondent No. 2 Pyare Miya. In my view, the petitioner Mohammed Yakub is the person best entitled for the delivery of the truck. 9. In the result, this miscellanqus petition is allowed. The order passed by the learned Additional Chief Judicial Magistrate No. 2, Jodhpur, is set-aside and I direct that the truck in dispute be delivered to the petitioner Mohammed Yakub upon his furnishing a SUPURDGINAMA in the amount of Rs. 2,00,000/- ( Rs. two lakhs) with two sureties of Rs. 1,00,000/- ( Rs. one lakh) each, to the satisfaction of the Additional Chief Judicial Magistrate No.2, Jodhpur, with stipulation to keep the truck in order and to produce it in the court as and when required to do so and to keep regular account of its income and expenditure and to deposit all the taxes and instalments in time.Petition allowed. *******