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2014 DIGILAW 392 (CAL)

Ramendra Kumar Rai v. Md. Jahangir

2014-04-29

R.K.BAG

body2014
JUDGMENT R.K. Bag, J. 1. This criminal revision is preferred by the petitioner challenging the judgment and order dated 30th July, 2013 passed by learned Additional Sessions Judge, 4th Court, Paschim Medinipur in Criminal Revision No. 160 of 2013, by which learned Judge of the trial Court handed over the seized vehicle in favour of the opposite party no.1 on execution of bond to the satisfaction of the Court of the learned Magistrate. 2. It is necessary to narrate in brief the background of filing of the criminal case for proper appreciation of the order of the custody in respect of the seized vehicle. The petitioner is the dealer of R.K. Motors having showroom at Rupnarayanpur, National Highway No.6, Post Office-Jakpur, District-Paschim Medinipur. The opposite party, Md. Jahangir approached the petitioner for purchase of ‘Ape’ Auto Rickshaw (BS – III) on 27th March, 2012 with finance from the United Bank of India, Golebazar Branch, Kharagpur. The petitioner made payment of Rs. 15,000/- for the purpose of registration and insurance of the said auto rickshaw in the showroom of the petitioner, but the opposite party, Md. Jahangir did not make payment of the balance amount of Rs. 1,73,000/-. Accordingly, the petitioner started criminal case against the opposite party, Md. Jahangir by reporting the incident in writing to the Officer-in-Charge of the Police Station of Kharagpur Local on 8th March, 2013 and a criminal case being Kharagpur Local Police Station Case No. 127 of 2013 dated 8th March, 2013 was started against the opposite party, Md. Jahangir. The police investigated the said criminal case, seized the auto-rickshaw in question and submitted charge sheet against the opposite party, Md. Jahangir on 30th May, 2013. This criminal case gave rise to G.R. Case No. 730 of 2013 before the Court of learned Chief Judicial Magistrate, Paschim Medinipur. 3. It appears from the materials on record that the opposite party, Md. Jahangir submitted an application before the Court of learned Chief Judicial Magistrate praying for return of the seized auto rickshaw from the custody of the police and his prayer was rejected by learned Magistrate on 10th May, 2013. The opposite party, Md. Jahangir challenged the order dated 10th May, 2013 passed by learned Chief Judicial Magistrate, Paschim Medinipur by filing Criminal Revision No. 160 of 2013 on 20th May, 2013. The opposite party, Md. Jahangir challenged the order dated 10th May, 2013 passed by learned Chief Judicial Magistrate, Paschim Medinipur by filing Criminal Revision No. 160 of 2013 on 20th May, 2013. Learned Sessions Judge called for the lower court’s record and the same was received by learned Sessions Judge on 15th June, 2013. However, it also appears from the record that on 6th July, 2013, the petitioner filed an application before the Court of learned Magistrate for return of the seized vehicle and on 20th July, 2013, learned Magistrate passed the order for return of the seized vehicle in favour of the petitioner on execution of bond of Rs. 2,00000/-. It also appears from the record that on the same date i.e. on 20th July, 2013, the petitioner executed the bond in compliance with the direction of the learned Magistrate and obtained the custody of the seized vehicle. 4. With the above factual matrix, this Court will have to decide whether the judgment and order passed by learned Additional Sessions Judge, 4th Court, Paschim Medinipur in Criminal Revision No. 160 of 2013 is legally valid. 5. Mr. Sudipta Moitra, learned counsel appearing on behalf of the petitioner submits that the petitioner was not impleaded as the opposite party in the Criminal Revision No. 160 of 2013 and as such, the petitioner was not in a position to bring to the notice of the revisional Court about the order dated 20th July, 2013, by which the seized vehicle was returned in favour of the petitioner by learned Magistrate. Mr. Moitra also submits that learned Sessions Judge should have considered the report of the investigating officer, the background of commission of the offence and the role played by the opposite party, Md. Janangir in procuring the registration of the auto rickshaw without making payment of balance amount of Rs. 1,73,000/- to the petitioner and by practicing fraud on the registration authority. According to Mr. Moitra, the interim custody of the seized vehicle should remain with the petitioner till the disposal of the criminal case. 6. Mr. Nurul Islam Khan, learned counsel appearing for the opposite party, Md. Jahangir submits that the opposite party, Md. 1,73,000/- to the petitioner and by practicing fraud on the registration authority. According to Mr. Moitra, the interim custody of the seized vehicle should remain with the petitioner till the disposal of the criminal case. 6. Mr. Nurul Islam Khan, learned counsel appearing for the opposite party, Md. Jahangir submits that the opposite party, Md. Jahangir has complied with the provisions of Section 39 of the Motor Vehicles Act, 1988 for the purpose of procuring the registration of auto rickshaw and as such, the interim custody of the auto rickshaw should be given in favour of the opposite party, Md. Jahangir, as directed by learned Additional Sessions Judge. 7. Mr. Manjit Singh, learned Public Prosecutor appearing on behalf of the State submits that learned Magistrate must have passed the order of return of the seized vehicle in favour of the petitioner on 20th July, 2013 on the skeleton record, because the original lower court’s record was received by the office of the learned Sessions Judge before 20th July, 2013, and as such learned Magistrate committed gross irregularity in passing order about custody of the seized autorickshaw during pendency of criminal revision before the Court of learned Additional Sessions Judge. 8. Having heard learned counsels representing the respective parties and on consideration of the materials on record, I find that the charge sheet has been submitted against the opposite party, Md. Jahangir on 30th May, 2013 on the allegation of committing offence under Sections 420/406/468 of the Indian Penal Code. The auto rickshaw in question was seized in connection with this criminal case which is pending for hearing before the Court of learned Chief Judicial Magistrate, Paschim Medinipur. It appears from the materials on record that there is allegation of making interpolation on the sale certificate by the opposite party, Md. Jahangir for the purpose of procuring the registration of the auto rickshaw. There is also allegation against the opposite party, Md. Jahangir that he made application to the local Branch of the United Bank of India for procuring loan of Rs. 1,47,000/- but the said amount was not disbursed by the bank as no initiative was taken from the end of the opposite party, Md. Jahangir. It is also alleged that the opposite party, Md. Jahangir did not make payment of Rs. 1,73,000/- to the petitioner for purchase of the auto rickshaw seized in connection with this criminal case. 9. 1,47,000/- but the said amount was not disbursed by the bank as no initiative was taken from the end of the opposite party, Md. Jahangir. It is also alleged that the opposite party, Md. Jahangir did not make payment of Rs. 1,73,000/- to the petitioner for purchase of the auto rickshaw seized in connection with this criminal case. 9. It is evident from the order dated 20th July, 2013 passed by learned Chief Judicial Magistrate in G.R. Case No. 730 of 2013 that learned Magistrate passed the order of return of the seized vehicle in favour of the petitioner without giving any opportunity of hearing to the opposite party, Md. Jahangir. It is also evident that Md. Jahangir did not implead the petitioner as the opposite party in the Criminal Revision No. 160 of 2013 and learned Additional Sessions Judge, 4th Court, Paschim Medinipur passed the order for return of the seized auto rickshaw in favour of the opposite party, Md. Jahangir without giving the petitioner being the de facto complainant of the criminal case an opportunity of hearing. It is relevant to point out that learned Magistrate must have knowledge about the pendency of the Criminal Revision No. 160 of 2013 at the time of passing the order dated 20th July, 2013, because the lower court’s record was sent to the Court of learned Sessions Judge before passing the order by learned Magistrate on 20th July, 2013. Since both learned Magistrate and learned Additional Sessions Judge passed the conflicting order about return of the seized auto rickshaw without giving opportunity of hearing to the other side, I am inclined to pass the order in respect of the interim custody of the auto rickshaw pending final decision of the criminal case. On consideration of the background of commission of the offence and on consideration of the materials collected by the investigating agency for the purpose of prosecuting the opposite party, Md. Jahangir on the allegation of committing offence under Sections 420/406/468 of the Indian Penal Code, I am of the opinion that the interim custody of the seized auto rickshaw should be given in favour of the petitioner. 10. In view of my above findings the judgment and order passed by learned Additional Sessions Judge, 4th Court, Paschim Medinipur on 30th July, 2013 in Criminal Revision No. 160 of 2013 is set aside. 10. In view of my above findings the judgment and order passed by learned Additional Sessions Judge, 4th Court, Paschim Medinipur on 30th July, 2013 in Criminal Revision No. 160 of 2013 is set aside. The seized auto rickshaw will remain in the custody of the petitioner till finalization of the criminal case by learned Magistrate. The criminal revision and the application being CRAN No.1630 of 2014 are, thus, disposed of. The department is directed to send down the copy of this judgment and order to learned court below for favour of information and necessary action. Criminal Section is directed to supply urgent Photostat certified copies of this order to the parties, if applied for, after compliance with all necessary formalities.