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2013 DIGILAW 559 (HP)

Tripura Colonizers Pvt. Ltd. v. State of H. P.

2013-06-18

DHARAM CHAND CHAUDHARY

body2013
JDUGMENT Dharam Chand Chaudhary, Judge (Oral) The challenge herein is to the order Annexure P-3, in an application under Section 451 Cr.P.C., passed by learned Judicial Magistrate 1st Class, Rampur, Distt. Shimla filed by complainant M/s Hydro Construction Power through its Manager Shri Megh Singh Thakur and another by accused Naresh Kumar in FIR No. 60/12 dated 26.06.2012 under Sections 451, 379, 506 read with Section 34 of Indian Penal Code, Police Station, Jhakri, Distt. Shimla, one of Directors of M/s Tripura Colonizers Pvt. Ltd. whereby the custody of the vehicle i.e. Transit Mixer bearing registration No. HP-49A-0238 has been entrusted to the complainant. 2. The legality and validity of the impugned order has been assailed by the accused-petitioner on the grounds inter-alia that custody of the vehicle could have not at all been given to the complainant, being not lawful owner whereof nor in lawful possession. On the other hand, accused-petitioner is a registered owner of the vehicle and the same is also insured vide registration policy in its name. Not only this but, it is the accused which has been paying all the taxes in respect of the vehicle. The vehicle, as a matter of fact, was parked on a piece of land taken on rent by the petitioner along with other stake holders. The record available at this stage reveals that vehicle in question was impounded by the police during the course of investigation in FIR No. 60/12 registered under Sections 451, 379, 506 read with Section 34 IPC against the accused-petitioner in Police Station, Jhakri, Distt. Shimla. 3.The allegations in the FIR, in a nut-shell, are that the accused persons Naresh Kumar and Ramesh Kumar, the Directors of the Company M/s Tripura Colonizers Pvt. Ltd. had broke open the lock and took away the vehicle, the transit mixer from the lawful custody of the complainant, Shri Megh Singh Thakur, Project Manager of the Company M/s Hydro Construction Power. The Court below while allowing the application filed by the complainant and rejecting the one filed by the accused Naresh Kumar, has arrived at a conclusion that irrespective of the accused-petitioner is registered owner of the vehicle, the same was taken from the lawful custody of the complainant and as such released the same to the complainant M/s Hydro Construction Power through its Project Manager, Shri Megh Singh Thakur on his furnishing personal bonds in the sum of Rs. 30,00,000/- (rupees thirty lacs) with one surety in the like amount, on the condition that its colour shall not be changed nor the same is disposed of without the permission of the Court and subject to its production before the Police or Court as and when directed. 4. Having gone through the record of the case and also taking into consideration the rival submissions viz-a-viz, the case law cited at the Bar, the present is not a case where it can be said that complainant is in lawful custody of the vehicle, as no tangible evidence is available on record to prove that the vehicle was transferred by its registered owner or on its behalf by any other authorized representative, pursuant to a lawful agreement to the complainant. Learned counsel on the strength of the list containing detail of machinery at work site has stated that pursuant to agreement executed for construction of Trench Weir, Conveyance Channel, Control Structure, Power Channel etc. in Ghanvi Hydro Electric Project, the vehicle in question along with other machinery lying on the spot was handed over to the complainant by the State Electricity Board. The vehicle, according to the complainant, was lying on the work site being in possession of the H.P. State Electricity Board after rescission of the earlier contract to execute the aforesaid work with some another Company M/s S.S.J.V, Project Pvt. Ltd. This Court, however, is not convinced with the submissions so made, for the reason that even no evidence is available on record to suggest that the vehicle was in lawful custody of H.P. State Electricity Board and for that matter in that of S.S.J.V Project, Pvt. Ltd., the Company to whom the work in question was awarded vide earlier contract, which later on was admittedly rescinded. 5. 5. True it is that learned counsel submits that the accused-petitioner had been working for M/s S.S.J.V and executing the work in the capacity of its Sub-Contractor and other machinery of the petitioner-Company may also lying at the work site and may be parked on a piece of land hired on rent, however, there is nothing to believe that the custody of the vehicle was ever entrusted by the petitioner, registered owner of the vehicle to the complainant. The material available on record is, therefore, not suggestive of the fact that complainant-Company is in lawful custody of the vehicle. Therefore, in a case of this nature, the possession of the vehicle in all fairness and in the ends of justice would have been given to the registered owner, which is M/s Tripura Colonizers Pvt. Ltd., through its Directors Naresh Kumar and Ramesh Kumar, who are accused-persons in the criminal case. The complainant- Company is not the registered owner of the vehicle nor the same is transferred to it, pursuant to a lawful agreement, therefore, the custody of the vehicle with the complainant and to ply the same on road would definitely be in violation of Section 39 of the Motor Vehicles Act. It is held so by the High Court of Allahabad in Shafiq Ahmad versus State of U.P., 2000 Criminal Law Journal, 1350. The Apex Court in Rajindera Prasad versus State of Bihar and another (2001) 10, Supreme Court Cases, 88 has held that at the stage of consideration of an application under Section 451 Cr.P.C., the question of title of the vehicle has not to be decided and rather its custody should be entrusted temporarily during the pendency of the case to the person who is owner thereof, as per Registration Certificate. The judgment of this Court in Krishan Lal versus State of H.P and another 1994 Criminal Law Journal, 2539 relied upon by learned trial Magistrate while allowing the application filed by the complainant, is distinguishable on facts, for the reason that in the present case nothing is whispered about the lawful custody of the complainant, so far as the vehicle is concerned. The judgment of the Orissa High Court in Revana Siddappa versus State of Orissa, 2011 Cri.L.J. 1675, is also distinguishable on facts. The judgment of the Orissa High Court in Revana Siddappa versus State of Orissa, 2011 Cri.L.J. 1675, is also distinguishable on facts. 6.In view of what has been stated hereinabove, the only irresistible conclusion would be that the learned trial Magistrate has committed illegality and irregularity while allowing the application for release of vehicle filed by complainant M/s Hydro Construction Power Pvt. Ltd., through its Director Shri Megh Singh and releasing the vehicle to the complainant. The impugned order is, therefore, neither legally nor factually sustainable and as such the same deserves to be quashed and set aside. 7.Consequently, this petition succeeds and the same is accordingly allowed. It is directed that interim custody of the vehicle shall be entrusted to M/s Tripura Colonizers Pvt. Ltd., the petitioner-Company through its authorized representative, on his furnishing personal bonds in the sum of Rs. 30,00,000/- (rupees thirty lacs) with one surety in the like amount to the satisfaction of learned trial Magistrate, on a specific undertaking that colour etc., of the vehicle shall not be changed in any manner whatsoever nor the same is sold or otherwise encumbered in any manner whatsoever during the pendency of the trial and also that the petitioner shall produce the same, if required either by the police or the Court. 8.The petition stands accordingly disposed of, so also the pending application(s), if any.