Dilip Kumar Das v. State — 1991 DIGILAW 52 (ALL)

JUDGMENT V N. Mehrotra, J. 1. This petition has been filed under Section 482, Cr. P. C. praying that the bus as detailed in the petition and seized under the orders of the AC.M.M.T., Kanp ur Nagar, be directed to be released in favour of the applicant. 2. The facts of the case, as appear from the material placed on the record, are that opposite party No. 2 Satnam Singh filed a complaint in the Court of the Magistrate concerned, naming two persons as accused. He alleged that he was dealing in the business of hire purchase of automobiles. The accused persons approached the complainant on 28.3.1983 and requested him to give the vehicle on lease. The terms of lease were settled between the parties and the accused persons were to pay @ Rs. 12,000/ per month to the complainant and it was also agreed that they will use the vehicle as Bailee and Trustee on behalf of the complainant. A deed was executed between the parties and in accordance with the agreement the complainant entrusted Bus No. URU 5428 to the accused persons. The accused persons, however, stopped paying the monthly hire and dishonestly disposed off the vehicle to one Dilip Kumar, resident of Howrah (West Bengal) for Rs. 2,50,000/. It was further asserted that the registration number of the vehicle has also been changed as WBR 2732. The complainant asserted that the accused persons have cheated him and have also misappropriated the vehicle. The Magistrate concerned issued a warrant for search and seizure in respect of the vehicle. The vehicle was actually seized by the police in West Bengal. The present applicant, thereafter, moved an application for release of the vehicle in his favour on the ground that he had purchased the vehicle and the registration of the same was in his name. The learned Magistrate by his order dated 18.4.90 rejected the application observing that as the matter relates to the commission of fraud and that the applicant has not produced any receipt about payment of money or any sale letter, the bus cannot be released in his favour merely because he is a registered owner. 3. In his petition the petitioner has asserted that the Automobiles Financing Corporation, which is a Financing Corporation of Kanpur, had financed the bus having registered No. BHZ 28 in the name of opposite party No. 2. 3. In his petition the petitioner has asserted that the Automobiles Financing Corporation, which is a Financing Corporation of Kanpur, had financed the bus having registered No. BHZ 28 in the name of opposite party No. 2. The opposite party No. 2 alongwith his other family members are partners of the said firm. The applicant was approached by Satnam Singh for selling the vehicle and for this purpose the applicant entered into a hire purchase agreement with one Jain Finance Corporation, Calcutta. During the time when the applicant was negotiating with Satnam Singh for purchase of the Bus, the applicant received a letter from Automobiles Financing Corporation dated 31.3.86 disclosing therein that the Bus sought to be purchased by the applicant was under a hire purchase agreement with it and a sum of Rs. 1,50,000/ should be paid to it so that it could issue necessary documents. In pursuance of this letter the applicant obtained a loan from Jain Finance Corporation and paid the amount of Rs. 1,50,000/ by demand draft. The Automobiles Financing Corporation and Satnam Singh issued necessary papers for transfer of the vehicle and it was transferred in the name of the applicant showing Jain Financing Corporation as the Financer. The registered number of the Bus was changed from BHZ 28 to WBR 2732. In terms of the agreement with the Jain Finance Corporation the applicant deposited the monthly dues. Thereafter Jain Finance Corporation issued a letter to the registration authority intimating that they had received the full payment and consequently their name was collected from the registration certificate. The applicant has further asserted that he is the sole owner of the vehicle which is registered in his name. The complaint filed by the opposite party No. 2, Satnam Singh, was false. The Bus was liable to be released in favour of the complainant. The applicant filed his affidavit and copied of certain documents in support of his allegation. The opposite party No. 2 has filed counteraffidavit denying the allegations made by the applicant. He has asserted that there was no agreement between him and the applicant nor the Bus was ever transferred by him to the applicant. He has asserted that the bus in question belongs to him and the same is registered in his name and he is the registered owner of it which has bearing number URU 5428. He has asserted that there was no agreement between him and the applicant nor the Bus was ever transferred by him to the applicant. He has asserted that the bus in question belongs to him and the same is registered in his name and he is the registered owner of it which has bearing number URU 5428. It was financed by the Bank of Baroda, New Delhi. The entire payment was made by him to the Bank of Baroda. It was thereafter leased to accused Bharat Singh under the lease agreement dated 28.3.83. A true copy of the said agreement has been filed along with the affidavit. The opposite party No. 2 further asserted that in term of the lease agreement the accused persons wrongfully and fraudulentlytransferred the bus to the applicant who got the registration number of the bus changed. The opposite party No. 2 has also asserted that he was in no way concerned with Automobiles Financing Corporation, Kanpur nor the bus was ever financed by the firm. It was also asserted that the applicant has no right, tile or interest in the bus in question and the learned Magistrate was correct in rejecting the application for release of the bus moved by the applicant. The applicant has filed rejoinder affidavit in reply to the counteraffidavit by the opposite party No. 2. 4. I have heard the learned Counsel for the parties and have perused the material on record. The contention by the learned Counsel for the applicant is that as the applicant was the registered owner of the bus in question, the same should be released in his favour. It has also been contended that while disposing of an application under Section 481, Cr. P. C, the learned Magistrate could not enter into the question of ownership of the bus but should have released the same in favour of its registered owner. 5. In reply to the above argument by the learned Counsel for the applicant, the learned Counsel for opposite party No. 2 has stated that actually opposite party No. 2 Satnam Singh was the registered owner of the bus in question and he had leased the same to the accused against whom the complaint has been filed. 5. In reply to the above argument by the learned Counsel for the applicant, the learned Counsel for opposite party No. 2 has stated that actually opposite party No. 2 Satnam Singh was the registered owner of the bus in question and he had leased the same to the accused against whom the complaint has been filed. It has also been contended that the accused persons were not entitled to transfer the bus but they fraudulently and wrongfully transferred it to the applicant who got the registration number of the bus wrongfully changed in his name. It is contended that merely because the applicant has succeeded in fraudulently getting the registration changed in his name, the bus should not be released in his favour. 6. The learned Counsel for the applicant has referred to the ruling in the case Kalapnath Singh v. Sheo Nath Rai, 1979 A CrR. 311, and also the decision by a Division Bench of this Court dated 16.4.87 in the case Smt, Naseem Banu v. State of U.P. and another in support of his argument that the bus should be released in favour of the registered owner of the same. ' 7. In Kalapnath Singh's case, referred to above, one Shiv Nath Rai was the owner of the motor vehicle in question. It was also registered in his name under the Motor Vehicle Act. Kalapnath Singh lodged a report under Section 379, I. P. C. alleging that he had purchased the said bus from Shiv Nath Rai and, on his behalf, he had started paying the remaining instalments of the bus to the bank concerned, but Shiv Nath Rai took away the vehicle by force. The police submitted a chargesheet against Shiv Nath Rai. During the pendency of the case Kalapnath Singh moved an application under Section 451, Cr. P. C. for release of the vehicle in his favour. The learned Magistrate held that Kalapnath Singh was entitle to the custody of the bus and accordingly released the same in his favour. The police submitted a chargesheet against Shiv Nath Rai. During the pendency of the case Kalapnath Singh moved an application under Section 451, Cr. P. C. for release of the vehicle in his favour. The learned Magistrate held that Kalapnath Singh was entitle to the custody of the bus and accordingly released the same in his favour. Shiv Nath Rai filed a revision against that the order and the learned Sessions Judge held that even if Kalapnath Singh had paid any money to Shiv Nath Rai and had also paid instalments of the loan to the Bank, he could not become owner of the vehicle because its registration was not transferred in his name under Section 21 of the Motor Vehicle Act. He allowed the revision and vacated the order passed by the Magistrate. Kalapnath Singh then filed revision in this Court. Though this Court observed that the person, in whose name the vehicle stands registered with the registering authority under the Motor Vehicles Act, is prima facie the owner of a vehicle and is entitled to its custody unless any other person establishes his superior title or claim over it, it still held that as prima facie it has been shown that Kalapnath Singh had purchased the vehicle from its sregistered owner, the vehicle should be released in his favour, even though it was not registered in his name. 8. In Smt. Naseem Banu 's case this Court concerned a number of decisions of this Court and deserved that the concessus of opinion appears to have been that release should ordinarily be made in favour of the person in whose name the registration of the vehicle appears to be. The learned Counsel for the applicant has, on the basis of this observation, argues that as the vehicle was registered in the name of the applicant, it should be released in his favour. I am, however, unable to agree with the argument that under Section 451, Cr. P. C. the Magistrate concerned is bound to release the vehicle in favour of the registered owner irrespective of the facts and circumstances of the case. Consider a case where the vehicle belonging to a person, and registered in his name, is stolen by somebody and the thief subsequently manages to get it registered in his name under the Motor Vehicle Act. Consider a case where the vehicle belonging to a person, and registered in his name, is stolen by somebody and the thief subsequently manages to get it registered in his name under the Motor Vehicle Act. Can it be said that evea in such a case the Court is bound to release the vehicle in his favour? This aspect of the matter was actually considered in Smt. Naseem Banu's case where it was observed that the release should normally be in favour of the person shown to be registered owner of the vehicle but, depending on the facts and circumstances of the case, it remains open to the Court to take a different view where the facts warrant an inference that the registration could not be given effect to. It was further observed 'that in a case, for instance, where it is shown prima facie that the registration was fraudulent or obtained by misrepresentation or that for other cogent reason manifest on the record it could not be treated as valid. In the eye of law, the powers of the Court are not foreclosed for the purpose of directing release even to the person who is not the registered owner. Thus in case it prima facie appears that the registration was fraudulent or obtained by misrepresentation or if, for other cogent reasons, it could not be treated as valid in the eye of law, the Magistrate could release the vehicle in favour of a person who is not the registered owner of the same. 9. In the present case the vehicle was owned by opposite party No. 2 Satnam Singh. It is also not disputed that it was originally registered in his name. The contention by the applicant is that he purchased this vehicle and subsequently it was registered in his name. According to him the vehicle was financed by Automobiles Financing Corporation and he paid the amount due to that Corporation and after that its registration was changed in his name. The applicant has filed photostat copies of two bank drafts to support his contention about payment of the amount of Rs. 1,50,000/ to the firm. He has, however, not filed a single document to show that opposite party No. 2 had received any amount from him or he had entered into any agreement with him regarding the sale of the vehicle. 1,50,000/ to the firm. He has, however, not filed a single document to show that opposite party No. 2 had received any amount from him or he had entered into any agreement with him regarding the sale of the vehicle. When I put a querry to the learned Counsel for the applicant as to whether any sale letter was issued by the opposite party No. 2 or any document was executed by him in favour of the applicant, the learned Counsel for the petitioner replied that this Court cannot go into this question but should direct the release of the vehicle in favour of the applicant on the basis of the rulings relied upon by him. In view of this fact it can be, at this stage, accepted that opposite party No. 2, who was the registered owner of the vehicle, neither issued any sale letter in favour of the applicant nor any document was executed about the alleged sale of the vehicle between him and the applicant. Thus the applicant has at this stage not been able to show that he had entered into any agreement with the opposite party No. 2 regarding the sale of the vehicle in question. He has in fact not produced any document even to show that there was any agreement of sale between him and the accused persons who had executed an agreement of lease in favour of the opposite party No. 2. Except for the fact that the applicant had got the vehicle registered in his favour at a subsequent stage, there is no document or material on record to show as to how he became the owner of the vehicle which was admittedly owned by the opposite party No. 2 earlier. 10. In these circumstances it cannot be said that merely because that applicant has been able to get the vehicle registered in his name, the same should be released in his favour. The opposite party No. 2 has in para 24 of his counteraffidavit alleged that "URU 3428 was got changed by manipulation fraudulently", thereby asserting that the registration number of the bus in question was got changed by the applicant by manipulation and fraud. The applicant has in para 17 of his rejoinder affidavit mentioned that "the content of para 24 or the counterrafhdavit need no reply". The applicant has in para 17 of his rejoinder affidavit mentioned that "the content of para 24 or the counterrafhdavit need no reply". Thus even this specific assertion about fraud and manipulation made in the counter affidavit has not been specifically denied by the applicant. 11. Considering all these facts and circumstances, it cannot be said that the order by the learned Magistrate refusing to release the vehicle in favour of the applicant amounted to abuse of the process of the Court or that it would be in the interest of justice for this Court to interfere with the impugned order by the learned Magistrate. In the circumstan ces this petition is rejected. Petition rejected.