BASANTI PRADHAN v. STATE OF ORISSA — 1994 DIGILAW 365 (ORI)

B. N. DASH, J. ( 1 ) IN this revision petition under section 401 read with section 397 of the Code of Criminal Procedure, 1973 (for short, the Codet) the petitioner Basanti Pradhan assails the order dated 20. 7. 1993 of the learned S. D. J. M. , Jharsuguda directing release of the bus bearing registration No. DAS 2411 in favour of Bichhitar Singh (O. P. 2) on his executing a bond for Rs. 1,00,000/- to produce the vehicle as and when required by the court. ( 2 ) ADMITTEDLY, the said vehicle originally belonged to Bichhitar Singh who purchased the same on taking loan from Rama Finance and Company, a financier of Vijayanagaram in the State of Andhra Pradesh (O. P. 3 ). On 19. 12. 1992 Bichhitar Singh entered into an agreement with Basanti Pradhan for sale of the vehicle at Rs. 2,15,000/- and as per the stipulations in the agreement Basanti Pradhan paid Rs. 70,000/- in cash and undertook to pay Rs. 45,000/- within February 28, 1993 and the remaining amount of one lakh in twenty monthly installments commencing from the month of March at the rate of Rs. 5,000/ -. Nothing was indicated in the agreement that the vehicle had been purchased by Bichhitar Singh taking loan from a financier. On the date of execution of the agreement i. e. on 19. 12. 1992 Bichhitar Singh executed a receipt in favour of Basanti Pradhan indicating that he had received the entire consideration amounting to Rs. 2,15,000/- towards full and final payment in respect of the sale of the bus. On the same day Bichhitar Singh swore two affidavits before the Executive Magistrate, Sambalpur, one indicating that he had delivered the bus to Basanti Pradhan after receipt of the full and final consideration and the other indicating that he delivered the permanent and temporary permits of the vehicle. On 19. 6. 1993, the husband of the petitioner filed an application before the Deputy Inspector General of Police, Northern Range, Sambalpur stating therein that on 2. 6. On 19. 6. 1993, the husband of the petitioner filed an application before the Deputy Inspector General of Police, Northern Range, Sambalpur stating therein that on 2. 6. 1993 at about 9 A. M. while the vehicle in question was standing in Jharsuguda Private Bus Stand and the driver, conductor and helper of the bus had gone to a nearby restaurant to take tea, an unknown driver in the company of one Janardan Sahu (O. P. 4) speedily drove away the vehicle and although the matter was reported at Jharsuduga Police Station, no action was taken by the police and that after searching for the vehicle from 3. 6. 1993 to 15. 6. 1993 he came to learn that the vehicle in question was standing in front of the house of Janardan Sahu (O. P. 4) of Lapanga. On the said report, the D. I. G. of Police having directed the Officer-in-charge of Tharsuguda Police Station to register a case and to seize the vehicle, the same was registered as Jharsuguda P. S. Case No. 108 of 1993 corresponding to G. R. Case No. 448 of 1993 in the court of the S. D. J. M. , Jharsuguda. During investigation of the said case, the vehicle in question was seized and intimation thereof was sent to the court of the S. D. J. M. Thereafter, Basanti Pradhan, Bichhitar Singh and the financier filed three separate applications praying for interim release of the vehicle in their favour. The stand of the petitioner was that after execution of the agreement when she went to the office of the R. T. O. , she came to know for the first time that a sum of Rs. 60,000/- was due against Bichhitar Singh from the financier and he was in arrears of tax to the tune of Rs. 40,000/- and, therefore, being apprehensive of future complications she arranged the remaining amount of consideration and paid the same to Bichhitar Singh who thereafter executed the money receipt and swore the two affidavits before the Executive Magistrate. According to her, since she had paid the entire consideration amount and the vehicle was stolen away from her possession, the vehicle should be released in her favour. Bichhitar Singh claimed possession of the vehicle stating that he was the owner of the vehicle and the registration certificate and route permits continued to stand in his name. According to her, since she had paid the entire consideration amount and the vehicle was stolen away from her possession, the vehicle should be released in her favour. Bichhitar Singh claimed possession of the vehicle stating that he was the owner of the vehicle and the registration certificate and route permits continued to stand in his name. The plea of the financier was that since Bichhitar Singh had purchased the vehicle taking loan from it on executing a hire-purchase agreement, he was is possession as hirer and his sale of the vehicle would not confer any title in favour of the petitioner Basanti Pradhan. Since Bichhitar Singh was a defaulter in payment of in statements, he could not be said to be the owner of the vehicle and the ownership having remained with the financier, the vehicle should be released in its favour. ( 3 ) THE learned S. D. J. M. was of the opinion that the financier was not entitled to possession of the vehicle because it was entitled to take recourse to legal action in appropriate forum for contravention of any of the conditions of the hire-purchase agreement. She found that on the reverse of the first page of the xerox copy of the agreement for sale, there was an endorsement of Bichhitar Singh dated 23. 12. 1992 indicating receipt of Rs. 50,000/- and, therefore, she directed the petitioner Basanti Pradhan to produce the original agreement for sale. But since the same was not produced and as the endorsement was of a date four days after the execution of the agreement for sale, she entertained a doubt regarding assertion of the petitioner of her having paid the entire consideration amount on the date of execution of the agreement for sale and as such declined to release the vehicle in her favour. Since the registration certificate and the route permits, in respect of the vehicle were standing in the name of Bichhitar Singh, she held him to be the person entitled to the vehicle and accordingly passed the impugned order. ( 4 ) MR. P. K. Ray, the learned counsel for the petitioner contends that since as per the receipt dated 19. 12. ( 4 ) MR. P. K. Ray, the learned counsel for the petitioner contends that since as per the receipt dated 19. 12. 1992 on Which date the deed of agreement for sale was executed, the petitioner paid the entire consideration money and as she was given delivery of the vehicle as well as the route permits (permanent and temporary) as per the affidavits those were sworn before the Executive Magistrate, she should have been given the possession of the vehicle. According to the learned counsel, the ground given by the learned S. D. J. M. in doubting the genuineness of the sale transaction is untenable because it was not the case of either party that four days after the execution of the agreement for saleon23. 12. 1992, Rs. 50,000/-hadbeen given to Bichhitar Singh towards consideration of the vehicle. ( 5 ) THE applicability of section 457 of the Code in a case of this nature is not in dispute at the Bar. The scope of section 457 of the Code has been the subject-matter of judicial decision from time to time. However, the law is settled so far as this Court is concerned, by a Division Bench in Sri Prabhat Kumar Das v. Sri Bijoy Prasad Das and another. The law was stated thus: - Under the provisions of section 457, Criminal Procedure Code if the Magistrate orders delivery of the property, he has to deliver it to the person entitled to the possession thereof. He has to satisfy himself from the records and materials available before him that the person to whom the delivery is ordered is entitled to possession. If the materials are not sufficient he can make an enquiry into the matter by giving opportunity to the claimants before passing the order. In doing so, the Magistrate should confine himself only to find out as to who is entitled to possession of the property but not the title or ownership thereof. A person may be in unlawful possession, at the time of seizure and in that circumstance, it cannot be said that he is entitled to possession. It must be a lawful possession. The test, therefore, is not the mere possession of the property at the time of seizure, but as to who is entitled to lawful possession. A person may be in unlawful possession, at the time of seizure and in that circumstance, it cannot be said that he is entitled to possession. It must be a lawful possession. The test, therefore, is not the mere possession of the property at the time of seizure, but as to who is entitled to lawful possession. The expression entitled to possession is the sine qua non for the delivery of property under section 457, Criminal Procedure Code. T ( 6 ) IN the case of Mohammed Zariff v. Sk. Zinaullah the opposite party had purchased the vehicle with the financial assistance of the State Bank and he was the registered owner, but he entered into an agreement with the petitioners for sale of the vehicle. Under the agreement the petitioners were to clear up the bank dues and out of the balance amount of Rs. 82,000/- payable to the opposite party, sum of Rs. 20,000/- was paid on the date of the agreement itself and the opposite party delivered possession of the aforesaid vehicle to the petitioners in running condition. The balance amount having not been paid in spite of requests, the opposite party lodged all F. I. R. which gave rise to a criminal case in the investigation of which the vehicle was seized. Both the petitioners and opposite party filed separate applications for release of the vehicle in their favour in the court of the S. D. J. M. , Bhubaneswar and the learned S. D. J. M. having allowed the application of the petitioners, the opposite party carried an appeal to the learned Sessions Judge, Purl who passed all ex parate order directing release of the vehicle in favour of opposite party. Being aggrieved, the petitioners approached this Court. A learned Single Judge relying on the aforesaid decision of the Division Bench allowed the revision with the following observation:there Call be no manner of doubt after reading the stipulation aforesaid that from 15. 1. 1981 title in the vehicle was transferred to the petitioners and on and from that day, they became the owners of the vehicle. What consequence would ensue vis-a-vis the Bank and the registered owner in case of the breach of the agreement is not relevant consideration while considering the question of release of the vehicle under section 457 of the Code of Criminal Procedure. What consequence would ensue vis-a-vis the Bank and the registered owner in case of the breach of the agreement is not relevant consideration while considering the question of release of the vehicle under section 457 of the Code of Criminal Procedure. ( 7 ) IN the case of Pramod v. State, (1989) 2 O. C. R. 414, it has been decided that registration of vehicle is though one of the materials for consideration, but the same cannot be the sole basis to hold that the person in whose favour the Registration certificate stands is the person entitled to possession. ( 8 ) COMING to the facts of the present case, it is seen that the vehicle in question was seized by the police from the possession of Bichhitar Singh, as per the seizure list dated 20. 6. 1993 and the registration certificate and route pernlits were also standing in his name. If these documents alone are taken into consideration, the entitlement of Bichhitar Singh to get the vehicle released in his favour can never be doubted, but the fact remains that he had executed the agreement for sale on 19. 12. 1992 in favour of the petitioner Basanti Pradhan on receipt of the entire consideration amount of Rs. 2,15,000/- as per the receipt granted by him and had sworn two affidavits, one admitting delivery of possession of the vehicle in question to the purchaser and receipt of the full and final consideration and the other indicating that theroutepemlits (permanent and temporary) had also been delivered to the purchaser. It is true that police had seized a notice purported to have been given by Bichhitar Singh through his advocate to the petitioner Basanti Pradhan asserting therein that on 2. 6. 1993 the petitioner had voluntarily delivered the vehicle in question to him without paying the installments, but there is nothing to show that the said notice had been really dispatched and received by the petitioner. If the vehicle had really been returned as claimed in the notice, I do not find any justifiable reason as to why such a notice was necessary to be issued. The said notice does not explain the prior conduct of Bichhitar Singh of his having granted a receipt showing payment of the entire consideration amount by the petitioner and of his having sworn the aforesaid two affidavits. The said notice does not explain the prior conduct of Bichhitar Singh of his having granted a receipt showing payment of the entire consideration amount by the petitioner and of his having sworn the aforesaid two affidavits. On a consideration of the entire materials on record, it seems to me that on 19. 12. 1992 Bichhitar Singh had executed the agreement for sale on receipt of an initial amount of Rs. 70,000/- towards consideration money and, as claimed by the petitioner, when she ascertained on that very date that Bichhitar Singh was in arrear of tax to the tune of Rs. 40,000/- and was also liable to pay Rs. 60,000/- to the financier, she arranged the remaining part of the consideration and paid the same to Bichhitar Singh who thereafter executed the aforesaid money receipt and sworn the aforesaid two affidavits. In that view of the matter, it is liable to be held that on and from 19. 12. 1992 on which day, as stated earlier, Bichhitar Singh executed the agreement for sale and received the entire consideration amount, the petitioner Basanti Pradhan became the person entitled to remain in possession of the vehicle. The endorsement of Bichhitar Singh dated 23. 12. 1992 showing receipt of Rs. 50,000/- which has weighed with the learned S. D. J. M. to view the transaction of sale with suspicion is of no consequence because it is neither partyts case that the said endorsement was in respect of the vehicle in question. As stated earlier, Basanti Pradhan having purchased the vehicle without prior notice that her vendor Bichhitar Singh had purchased the vehicle on hire-purchase agreement, the claim of the financier (opposite party no. 3) cannot be preferred to that of Basanti Pradhan because as held in the case of Prabhat Kumar Dass case (supra) the Magistrate is required to confine himself only to find out as to who is entitled to possession of the property but not the title or ownership thereof. T ( 9 ) ON the aforesaid analysis and on consideration of the entire matter, I hold that the petitioner Basanti Pradhan is entitled to possession of the vehicle and not Bichhitar Singh nor the financier. T ( 9 ) ON the aforesaid analysis and on consideration of the entire matter, I hold that the petitioner Basanti Pradhan is entitled to possession of the vehicle and not Bichhitar Singh nor the financier. ( 10 ) IN the result, the revision is allowed, the impugned order is set aside and it is directed that the vehicle in question should be delivered to the petitioner Basanti Pradhan on her furnishing security of Rs. 1,00,000/- (Rupees one lakh only) to produce the vehicle as and when required by the court trying the afore mentioned G. R. Case. Petition allowed. .