Bombay High Court
Haribhau Dhondiba Chavan vs Balkrishna Bhikoba Ballal on 9 January, 1987
Equivalent citations: 1988(4)BOMCR185, (1987)89BOMLR197
JUDGMENT H.H. Kantharia, J.
1. An agreement was entered into between the petitioner and respondent No. 1 under which the petitioner agreed to sell a tractor and a trolly bearing No. MHI 5059 to respondent No. 1. It was agreed between the parties that the transaction was to be completed by 15th of April, 1982 and in the event of it being not completed the petitioner was at liberty to take back the tractor and the trolly and the amount of earnest money was to be forfeited. As per the said agreement, respondent No. 1 paid Rs. 2000/- as earnest money and subsequently paid certain amounts from time to time thus amounting to Rs. 28,001/- to the petitioner. However, the final instalment which was due on 15th of April, 1982 was not paid. The petitioner waited for a considerable time thereafter and then in the month of April 1983 he took possession of the tractor and the trolly and has been using the same from then. However, on 18th January, 1984, the said tractor and trolly came to be seized from the custody of the petitioner by the police. It appears that respondent No. 1 had lodged a complaint against him of theft of this property on 11th January, 1984 for which a criminal case bearing No. 8 of 1984 was pending in the Court of learned Judicial Magistrate, 1st Class, Medha.
2. In the said case, both the petitioner and respondent No. 1 made applications for custody of the tractor and the trolly. According to the petitioner, he was the registered owner of the vehicle and the same was in his possession in pursuance of the terms of the agreement and, therefore, the question of theft did not arise and since the articles were seized from his custody he should be given possession of the same. According to respondent No. 1, he had paid Rs. 58,000/- to the petitioner towards purchase price and that the petitioner should not have taken away the vehicle in question from him and that is how he committed theft of the vehicles and that the same should be handed over to him. The applications filed by both the parties were disposed of by the learned trial Magistrate who by his judgment and order dated 21st April, 1984 granted the application of the petitioner and directed that the vehicle be given in his custody on he executing a bond of Rs. 60,000/- with one or two sureties in the like amount and an undertaking to produce the same as and when required.
3. Being aggrieved, respondent No. 1 filed Criminal Revision Application No. 7 of 1985 in the Sessions Court at Satara. The learned Sessions Judge, Satara, who heard the said revision application, allowed it as he was of the opinion that the learned trial Magistrate was not justified in giving custody of the vehicle to the petitioner although the petitioner was the registered owner. According to the learned Sessions Judge, respondent No. 1 was in lawful possession of the vehicle and since the vehicle was in his possession the custody ought to have been given to him. He accordingly directed that the vehicle in question be handed over to respondent No. 1 on his furnishing the bond of Rs. 60,000 (Rupees Sixty Thousand), with one surety in the like amount and that he would produce the vehicle before the Court whenever required. The learned Sessions Judge's order dated 1st March, 1986 is impugned in this writ petition.
4. Mr. Jahagirdar, learned Advocate appearing on behalf of the petitioner, urged that the possession of the vehicle was taken by the petitioner under the terms of the agreement and it cannot be said that respondent No. 1 was in lawful possession of the vehicle because he had committed breach of the agreement. Mr. Jahagirdar also submitted that normally in case of motor vehicles the possession should be handed over to the registered owner because if the motor vehicle remains in the possession of a person who is not a registered owner and if some accident takes place, the registered owner would be held responsible. Controverting these submissions, Mr. Raje, learned Advocate appearing on behalf of respondent No. 1, submitted that just because respondent No. 1 could not pay the amount of the instalments, as per the agreement, the petitioner could not have taken law in his own hands and removed the vehicle from the possession of respondent No. 1 and, therefore, the learned Sessions Judge was right in handing over the possession of the vehicle to his client.
5. Now, it is to be seen that the order of the learned trial Magistrate was an interlocutory order inasmuch as the interim possession of the vehicle was handed over to the registered owner by the learned Magistrate and in that case the learned Sessions Judge was not correct in law to have interfered with such interlocutory order. It was held by the Karnataka High Court in the case of U. Kariyappa v. P. Sreekantaiah and others, 1980 Cri.L.J. 422 that though the criminal Court has discretion to make any order as it thinks fit for the proper custody of such property such a discretion has to be exercised judiciously and not arbitrarily and when the trial Court makes any such order regarding the interim custody of the property in exercise of judicial discretion as provided under section 451 of the Criminal Procedure Code, the revisional Court would be very slow to interfere with that order made by the Magistrate in proper exercise of the judicial discretion. In our case also, the order by the learned Magistrate was made after exercising proper judicial discretion as he was of the opinion that the vehicle should be handed over to the registered owner which, in my opinion, was a reasonable and correct approach with which the learned trial Magistrate had dealt with the matter. Therefore, the learned Sessions Judge was not right in interfering with such an order passed in accordance with law and especially when the order in question was an interlocutory order.
6. But that apart, the Karnataka High Court in the same case and the Calcutta High Court, in the case of Smt. Mayamaya Dasi v. Sanat Kumar Law and ors., and Gujarat High Court in the case of Nandiram v. State of Gujarat, held that normally the registered owner is the proper person for the interim custody of the vehicle. I, therefore, find lot of substance in the argument of Mr. Jahagirdar that the learned Sessions Judge erred in setting aside the order passed by the learned trial Magistrate by which he had handed over the vehicle in question to the registered owner.
7. In this view of the matter and the position in law, I hold that the impugned order passed by the learned Sessions Judge is bad in law and deserves to be set aside. It is accordingly quashed and set aside and the one passed by the learned trial Magistrate is restored.
8. Rule is accordingly made absolute.