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2005 DIGILAW 322 (CHH)

DEY KUMAR RCSIYA v. YIJAY KUMAR

2005-09-27

DHIRENDRA MISHRA

body2005
ORDER As per Hon'ble Shri Dhirendra Mishra, J. :- 1. This petition has been preferred by the petitioner under section 432 of the Code of Criminal procedure against I he impugned order dated 289-2004 passed by the learned Additional Session Judge Sakti in Criminal Revision No. 276/2004 by which the criminal revision preferred by him against the order dated 3-6-2004 passed by the Additional Chief Judicial Magistrate Sakti has been rejected. 2. The instant petition has been filed for interim custody of the Marshal Jeep bearing registration No. CG-11-6458 which was seized in connection with Crime No. 96/2004 registered at Police out post Hasoud Police Station Jaijaipur District Janjgir Champa. 3. The case of the petitioner is that he entered into an agreement for purchase of the above mentioned jeep with respondent No.2 on 3-4-2004 for a consideration of Rs. 2,91,000/- and a sum of Rs. 1,01,000/- was paid by him to respondent No.2 as advance money and thereby the petitioner obtained the possession of the said jeep. Subsequently, on 6-4-2004 the petitioner further paid a sum of Rs. 90,000/- to respondent No.2 and the sale letter was executed by respondent No.2 in the name of the petitioner on 7-4-2004. The petitioner after obtaining No Objection Certificate from respondent No.2 and M/s Mahindra and Mahindra, the financer of the Jeep, got the said jeep transferred in his name and thus became the registered owner of the same with effect from 20-7-2004. On 24-5-2004, the jeep in question was seized by the Police from one Krishna Shinde in connection with the aforesaid crime. Respondent No.1 as also the petitioner applied for the interim custody of the vehicle before learned Additional Chief Judicial Magistrate Sakti. However, learned Magistrate vide order dated 3-6-2004 rejected the application of the petitioner and allowed the application preferred by respondent No.1 and thereby directed the vehicle to be given in the interim custody of respondent No.1 the petitioner preferred the criminal revision against the order dated 3-6-2004 passed by the learned Additional Chief Judicial Magistrate Sakti which was also rejected by the learned Additional Sessions Judge, Sakti by the impugned order. Hence this petition under section 482 of the Code of Criminal Procedure. 4. Hence this petition under section 482 of the Code of Criminal Procedure. 4. Learned counsel for the petitioner submits that the orders passed by both the Courts below are based on erroneous appreciation of the law and the same are against the established law for granting interim custody of the vehicle. He further submits that the petitioner is the registered owner of the jeep in question and it was seized from the custody of one Krishna Shinde who was playing the said jeep as per the authorization letter given to him by the petitioner. It is also not disputed that the jeep in question was sold by its registered owner (respondent No.2) to the petitioner and after execution of the sale letter and after obtaining the No Objection Certificate from respondent No.2 as also from the financer the jeep in question was registered in the name of the petitioner. However, according to the learned counsel for the petitioner, both the Courts below have allowed the application filed by respondent No.1 for interim custody of the said jeep recording a finding that respondent No.2 sold the said jeep to respondent No.1 on 23-10-2002 and therefore petitioner Dev Kumar can not be prima facie held to be the owner of the said jeep. 5. Learned counsel for the petitioner argues that the learned Magistrate while deciding the application for interim custody of the vehicle is simply required to ascertain as to who has the lawful or rightful title to hold the property in this regard and he is not required to decide the question of title as the Civil Court. In support of his submission learned counsel for the petitioner placed reliance on the decision of the Supreme Court in the matter of Rajendra Prasad Vs. State of Bihar and another, decision of Orissa High Court in the matter of Priyabrata Vshukla Vs. State of Orissa2 and the decision of Himachal Pradesh High Court in the matter of Sharif Mohammad Vs. State of H.P. 6. On the Other hand learned counsel for respondent No.1 opposing the petition submits that both the courts below have arrived at the concurrent conclusion to the effect that the vehicle in question was earlier sold by respondent No.2 to respondent No.1 and the possession thereof was also handed over to him. State of H.P. 6. On the Other hand learned counsel for respondent No.1 opposing the petition submits that both the courts below have arrived at the concurrent conclusion to the effect that the vehicle in question was earlier sold by respondent No.2 to respondent No.1 and the possession thereof was also handed over to him. However, the vehicle could not be transferred in the name of respondent No.1 as the same was purchased under Hire Purchase Agreement and some amount was outstanding against respondent No.2 towards the financer. He further submits that in the meanwhile respondent No.2 obtained temporary custody of the vehicle on 30-3-2004 on the pretext that he required the same to take his family members to Jagannthpuri for pilgrimage and thereafter he sold the said jeep to the petitioner. However, when respondent No.1 learnt about the transfer of the jeep in the name of the petitioner, the report was ledged by him on 12-4-2004 against the respondent No.2 and on the basis of the said report the aforesaid offence was registered and thus under these circumstances the orders passed by both the Courts below can not be faulted. In support of his submission learned counsel for respondent No.1 placed reliance on the decision of Rajsthan High Court in the matter of Deva Ram Vs. State of Rajsthan and another. 7. I have heard learned counsel for the parties. The undisputed facts are: (a) that the vehicle was registered in the name of respondent No.2 and Mahindra and Mahindra under Hire Purchase/lease agreement; (b) that on the basis of sale letter dated 7-4-2004 of Ex P.2 the vehicle was registered in the name of the petitioner and admittedly it was seized from the custody of one Krishna Shinde and thus he was claiming possession of the said jeep through the registered owner respondent No.2 at the time of seizure; (e) that the vehicle was subsequently registered in the name of the petitioner on the basis of the sale letter of respondent No.2 and No Objection Certificate was also given by respondent No.2 as well as the financer - Mahindra and Mahindra. 8. The learned Magistrate while considering the application for interim custody of the vehicle is required to prima facie arrive at the conclusion as to who has the lawful or rightful title to hold the property. 8. The learned Magistrate while considering the application for interim custody of the vehicle is required to prima facie arrive at the conclusion as to who has the lawful or rightful title to hold the property. In the present case the vehicle was earlier registered in the name of respondent No.2 who has admitted sale of the vehicle in question to the petitioner and he as well as the financer of the jeep have also given No Objection Certificate and thus handed over the possession of the vehicle in question to the petitioner which was seized from his custody. In the aforesaid circumstances it was not open to the magistrate to decide the dispute between the rival purchasers of the vehicle. However the learned Magistrate dealing with the question as to who, the petitioner or the respondent No.1, is entitled to possess the vehicle in question, has come to the conclusion that the vehicle was earlier sold to the respondent No.1 by respondent No.2 who also handed over the possession of the said vehicle on the basis of the sale latter to respondent No.1 and thereafter the respondent No.2 obtained possession on the false pretext and subsequently sold the vehicle to the petitioner and handed over the possession to him, All these facts can not be considered at the time of deciding the question of interim custody and as such the trial Court has committed illegality by ordering the interim custody of the vehicle to respondent No.1. 9. 9. So far as the above cited judgment on behalf of the respondent No.1 in the matter of Devaram4 (supra) is concerned, the same is distinguishable on the ground that in the instant case the vehicle was though registered in the name of the petitioner after registration of the offence on 14-5-2004 but prior to this respondent No.2 was admittedly the registered owner of the same and he was also having the possession of the vehicle in question on the date of registration of the offence and also on the date when he executed the sale letter in favour of the petitioner and it is the case of the respondent No.2 that he was the registered owner of the vehicle, he was in possession of the vehicle and he sold the same to the petitioner and in view of the contention of the respondent No.2 and the documents available on record, the Courts below ought to have handed over the custody of the vehicle to the petitioner without deciding the contentious .issue regarding the first sale in favour of respondent No.1 and subsequent sale in favour of the petitioner. 10. As a result the petition succeeds. The orders passed by both the Courts below are set aside and it is directed that the vehicle in question shall be given in the interim custody of the petitioner till the disposal of the trial. Accordingly it is directed that the trial Court shall release the vehicle to the petitioner on the following conditions: (i) the petitioner shall produce the original certificate issued by the transport Office; (ii) the petitioner shall execute the bond in the sum of Rs. 2,00,000/with 2 solvent sureties and he shall produce the vehicle in the Court whenever required by the Court; (iii) custody of the vehicle to the petitioner will be on behalf of the court and this arrangement regarding disposal of the property is only till the conclusion of the trial. Petition Allowed.