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2005 DIGILAW 1136 (RAJ)

Mahesh Kumar v. Ranveer

2005-04-13

KHEM CHAND SHARMA

body2005
Honble SHARMA, J.–Heard learned counsel for the parties. (2). The facts relevant for disposal of this petition may be stated below: (3). The petitioner had purchased a Jeep bearing No. RJ 18G 2081 on hire purchased basis from some finance company. The registration of the Jeep stands in his name. The respondent No. 1 who was earlier driver on the said jeep requested the petitioner on 17.3.2004 to hand over the said jeep to him for a day and that he will return the same on the next day. The petitioner believing on the words of respondent No. 1, gave him the said jeep for a day. When the petitioner asked him to return the jeep, the respondent No. 1 refused to return the same and accordingly the petitioner lodged a report against him, whereupon, the police registered a case for offence under Section 406 IPC. (4). In the course of investigation, the police recovered the vehicle and seized the papers including driving licence of the petitioner from the possession of respondent No. 1. (5). In the course of investigation, both the parties moved applications for interim custody of the vehicle before the learned Magistrate. The learned Magistrate declined the request of petitioner and respondent No. 1 both on the ground that investigation was in progress. (6). The police completed investigation and having found prima facie case of criminal breach of trust filed a charge sheet against respondent No. 1 for offence under under Section 406 IPC. (7). Thereafter the petitioner and respondent No. 1 again moved separate applications for custody of vehicle before the Trial Court. The learned Magistrate after considering the material available before it, ordered custody of the vehicle to the delivered to respondent No. 1, vide its order dated 30.4.2004. The petitioner challenged the order of the Magistrate in revision petition before the court of Sessions. The learned revisional court affirmed the order of the Magistrate and dismissed the revision petition vide its order dated 7.7.2004. Hence the present petition. (8). The petitioner challenged the order of the Magistrate in revision petition before the court of Sessions. The learned revisional court affirmed the order of the Magistrate and dismissed the revision petition vide its order dated 7.7.2004. Hence the present petition. (8). The learned Magistrate in its order has noticed the conclusion of investigation, according to which the investigation officer, after recording the statements of witnesses under Section 161 Cr.P.C., found the offence under Section 406 IPC established against accused Ranveer and drawn conclusion to the effect that had the vehicle been been purchased in partnership and had there been any decision in the village meeting, the accused would not have absconded, rather he would have presented himself at the police station and would have submitted his defence. It has also been noticed that ``accused has not been able to produce any document, which could show that vehicle was purchased in partnership. Hence at the conclusion of investigation the police has found accused Ranveer guilty of offence under Sec. 406 IPC. (9). As stated above, both the parties have claimed custody of the seized vehicle on the claims as set out in their respective applications filed under Sec. 451/457 Cr.P.C. The learned Magistrate considered the evidence and material collected during trial and arrived at a conclusion that admittedly, as per the registration certificate, petitioner Mahesh Kumar alone is the registered owner of the seized vehicle. Likewise, it is also an admitted fact that police during investigation has seized the vehicle and its original documents from the possession of respondent Ranveer. According to the learned Magistrate, accused respondent Ranveer was in legal possession of the vehicle. From the order it appears that the learned Magistrate has critically analysed the statements of few witnesses recorded during investigation and recorded a finding that it does not transpire from the statements of witnesses that accused respondent has committed criminal breach of trust, inasmuch as all the witnesses state about the vehicle in question having been purchased in partnership, being plied in partnership and that petitioner had assured respondent Ranveer to pay him a sum of Rs. 1,42,000/-. According to the learned Magistrate, none of the witnesses has stated that respondent had demanded that vehicle and took it away and thus has committed criminal breach of trust. 1,42,000/-. According to the learned Magistrate, none of the witnesses has stated that respondent had demanded that vehicle and took it away and thus has committed criminal breach of trust. In the opinion of the court, the grounds on which the investigating officer has disbelieved the statements of witnesses cannot at this stage be said to be logical and maintainable. The Investigating Officer has not been able to collect any evidence on record to prima facie show that no panchayat meeting took place on 15.3.2004 in village Doomara, rather the evidence paroves that such meeting had convened. Lastly, the learned Magistrate concluded that since the seized vehicle was in legal possession of respondent Ranveer, it does not fall within the purview of `stolen property as defined in Section 410 IPC. Considering the facts and circumstances of the case in the light of provisions of Sec. 410 IPC, the learned Magistrate concluded that the seized vehicle does not fall within the category of stolen property as accused Ranveer being in legal possession. (10). It was in these circumstances that the learned Magistrate not only critically analysed the evidence collected during investigation but has finally adjudicated upon the title of the seized vehicle and accordingly, after having considered the provisions concerning interim custody of seized property, held the accused respondent legally entitled to have interim custody of the vehicle in question. (11). Section 451 Cr.P.C. deals with order for custody and disposal of property pending trial. Under this section what is required to be considered by the Judicial Magistrate is, as to who is entitled to the possession of the property seized by the police during investigation. Where it is proved that the person found in possession of the property has not legally acquired the property and came to be in his possession dishonestly, the Magistrate has to consider the question of title in order to determine the best right to possession. But where it appears that the police have seized the property from a person who is not shown to have committed any offence in relation to that property, the Magistrate can only hold that person to be entitled to possession of the property. It is well settled that while deciding the application filed under Sec. 457 Cr.P.C. the law does not require the Magistrate to finally adjudicate upon the disputed claims. It is well settled that while deciding the application filed under Sec. 457 Cr.P.C. the law does not require the Magistrate to finally adjudicate upon the disputed claims. The sine qua non for the delivery of the property under Section 457 Cr.P.C. is the entitlement of the person to possession. While dealing with application under Section 451/457 Cr.P.C. the Court should keep in mind the claims of the parties that certificate of registration of motor vehicle is the prima facie evidence of ownership and then order custody of the seized vehicle to the party in whose name the registration certificate stands. (12). In the case at hand, undisputedly, the police after investigation has prima facie found the case duly established under Section 406 IPC as has already been noticed by the Trial Court in its order under challenge. It ap-pears that respondent No. 2 has not been able to produced any such document which could prove that the vehicle seized by the police from his possession was purchased in partnership of the parties. From the order of the learned Magistrate, it appears to me that the learned Magistrate has considered the evidence and material collected during investigation, in the manner as if he was conducting trial of the case. The Trial Court has expressed its opinion on disputed facts which in my considered view could have been done only at the conclusion of trial. (13). Section 410 IPC provides that the property, the possession whereof has been transferred by theft extortion, robbery or cheating, or property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as ``stolen property whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of person legally entitled to the possession thereof, it then ceases to be stolen property. (14). Be that as it may, even if it is believed for the sake of argument that accused Ranveer is the co-owner of the vehicle in question, then also it is not understandable as to how and on what reasonable basis he got the preferential right of possession. (14). Be that as it may, even if it is believed for the sake of argument that accused Ranveer is the co-owner of the vehicle in question, then also it is not understandable as to how and on what reasonable basis he got the preferential right of possession. The allegations against the accused respondents are yet to be proved, which in my firm view could be proved only on the basis of evidence that may come during trial of the case. On the other hand the certificate of registration undisputedly stands in the name of the present petitioner and there cannot be any other evidence except the registration certificate while considering the application for interim custody. As stated herein above, the investigating officer after investigation concluded that prima facie there is evidence to constitute offence under Sec. 406 IPC against the accused respondent. On the other hand, respondent Ranveer has not been able to produce any evidence to prima facie show that he was in legal possession over the vehicle in question. The reasons prevailed with the Trial Court, affirmed by the revisional court, in my opinion, in accepting the application of respondent Ranveer does not hold good and hence the impugned orders deserve to be quashed. (15). In the result, this petition succeeds and hereby allowed. The orders impugned in this petition are quashed. The application of the petitioner filed under Section 451/457 Cr.P.C. before the Trial Court is allowed and that of respondent Ranveer is dismissed. The Trial Court is directed to hand over custody of the vehicle in question on `supurdginama to the petitioner on the same terms and conditions as are enumerated in its order dated 30.4.2004. (16). Since the vehicle in question (Jeep bearing No. RJ 18 G 2081) has already been given on supurdginama to respondent Ranveer, the Trial Court is directed to take appropriate steps for getting back custody of the aforesaid vehicle from respondent Ranveer and thereafter to hand it over to petitioner Mahesh Kumar. Strict compliance of this order be observed.