Calcutta High Court (Appellete Side)
Tarun Kumar Das vs The State Of West Bengal & Another on 17 July, 2015
Author: Shib Sadhan Sadhu
Bench: Shib Sadhan Sadhu
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Shib Sadhan Sadhu, J.
C.R.R. No.343 of 2015 with CRAN No.556 of 2015 Tarun Kumar Das ... Petitioner Versus The State of West Bengal & Another ...Opposite Parties For the Petitioner : Mr. Tirthankar Ghosh Mr. Arindam Jana Mr. Sougata Banerjee For the O.P. No.2 : Mr. Sudipto Moitra Mr. Kallol Kumar Maity Heard on : June 26, 2015.
Judgment on : July 17, 2015 Shib Sadhan Sadhu, J
1. This Criminal Revision is directed against the impugned order No.10 dated 21st January, 2015 passed by the Learned Additional Chief Judicial Magistrate, Contai, District: Purba Medinipur in G.R. Case No.1016 of 2013 by which the custody of a vehicle (Truck) bearing Registration No.WB-31/4636 seized in a case registered under Sections 419/420/379 of the Indian Penal Code ( hereinafter referred to as IPC for the sake of brevity )in Contai P.S. Case No.283 dated 27.08.2013 was handed over to the O.P. No.2. After entering into appearance the O.P. No.2 filed an application being CRAN No.556 of 2015 for vacating the interim order passed on 05.02.2015. Both these applications were heard together and are being disposed of by a common judgment as those are inter-linked and also for the sake of convenience and brevity.
2. The legality and validity of the impugned order has been assailed by the petitioner on the grounds inter alia that custody of the vehicle could have not at all been given to the O.P.No.2, being not lawful owner thereof nor in lawful possession. On the other hand, the petitioner is the registered owner of the vehicle and he has the authority to retain the vehicle and he cannot be deprived of the possession of the vehicle. The vehicle, as a matter of fact, was stolen by the O.P. No.2 for which the petitioner lodged a written complaint on the basis of which FIR No.283/13 was registered under Sections 419/420/379 IPC against the present O.P. No.2 in police station, Contai, District: Purba Medinipur and during the course of investigation the police seized the vehicle.
3. The factual matrix leading to the instant Revisional Application in a nutshell, is that the petitioner is the registered owner of the said vehicle bearing Registration No.WB-31/4636. An agreement was executed between the petitioner and the O.P. No.2 on 3rd July, 2013 for sale of the said vehicle and the consideration price was fixed at Rs.12,30,000/- (Twelve lakh thirty thousand) only. The condition of the agreement was that steps has to be taken by the O.P. No.2 within one month from the date of execution of the agreement for payment of the loan amount or transfer of the loan amount from the first party/petitioner to the second party/O.P. No.2. Such condition was not fulfilled within the stipulated period and thus the vehicle was in the custody of the petitioner being the registered owner. The O.P. No.2 stole the vehicle from the garage of Tutu in the Digha Bye Pass Road just in front of the Bajaj Show Room for which the petitioner lodged a complaint on the basis of which the aforesaid Contai P.S. Case No.283/13 was started.
Another complaint was lodged by Sagarika Pradhan, wife of O.P. No.2 on 4th September, 2013 on the basis of which Contai P.S. Case No.302/2013 dated 05.09.2013 under Sections 465/468/420/120B/34 IPC was registered. It was alleged that Rs.4,30,000/- (Four lakh thirty thousand) only was paid in cash to the petitioner by her husband/O.P. No.2 and the outstanding loan account of the petitioner for Rs.8,00,000/- (Eight lakh) only was transferred in the name of the O.P. No.2 by opening a loan account in his name in the Contai Cooperative Bank Ltd, Nanda Kumar Branch (hereinafter referred to as the said Bank) and money receipt was issued. Thereafter the petitioner handed over the vehicle to the O.P. No.2 who sent it to 'Chowdhury Body Builders Garage' for repair, painting etc. and the O.P. NO.2 took the vehicle to his house from the said garage after completion of the work. On 23.07.2013 the said bank issued a letter to the RTA, Contai for changing the Loan Hypothecation and incorporating the name of the O.P. No.2 in place of the petitioner. Her husband on good faith handed over that letter to the petitioner but he did not do anything and he kept that letter with him and lodged a false complaint in P.S. and got the vehicle seized.
4. On the application made by the present petitioner praying for return of the seized vehicle the Learned Court below allowed such application by its order dated 03.03.2014 and directed that the seized vehicle be returned to the registered owner along with papers and documents on execution of a zimma bond of Rs.13,00,000/- (Thirteen lakh) only and on further condition not to change the nature and character of the vehicle and not to dispose of the same without prior permission of the Court and to produce the vehicle as and when called for. The O.P. No.2 challenged such order before this Court by filing a Revisional Application which was registered as C.R.R. No.1013 of 2014 and this Court on hearing the arguments advanced by the Learned Advocates appearing for the parties set aside the said order and directed the Learned Magistrate to reconsider the prayers for return of the seized vehicle made by both the petitioner and the present O.P. No.2 afresh and to come to a reasoned decision thereon. In compliance with such direction the Learned Court below heard the matter afresh and passed the impugned order directing return of the seized vehicle to the O.P. No.2 on furnishing a bond of Rs.20,00,000/- (Twenty lakh) only and on certain other conditions. Being aggrieved by and dissatisfied with such order the petitioner has come up with the instant Revisional Application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C. for the sake of brevity).
5. I have heard Mr. Sudipta Moitra, Learned Senior Counsel appearing on behalf of the O.P. No.2 and Mr. Tirthankar Ghosh, Learned Counsel appearing on behalf of the petitioner. None appeared for the State. I have also perused all the available materials on record including the impugned orders with meticulous care.
6. Mr. Moitra, Learned Counsel appearing on behalf of the O.P. No.2 submitted that in pursuance of the agreement entered into by and between the parties on 3rd July, 2013 the O.P.No.2 paid the entire consideration money to the petitioner - Rs.4,30,000/- in cash on 20.07.2013 and Rs.8,00,000/- on 22.07.2013 by transfer of the loan account of the petitioner to the loan account of the O.P.No.2 opened on 22.07.2013 and the petitioner issued money receipts which were duly attested by the Branch Manager of the said bank in whose presence the money was paid. Thereafter the petitioner handed over the possession of the vehicle to the O.P. No.2 and he also signed the Sale Certificate and other requisite Forms under the Motor Vehicles Act and Rules. The O.P.No.2 got the vehicle repaired and painted by spending a huge amount. Thereafter the petitioner made a false complaint and got the vehicle seized by police on 27.08.2013. Therefore, according to him, in all legal and practical sense the vehicle was transferred by the petitioner who is its registered owner pursuant to a lawful agreement to the transferee/O.P.No.2 and the custody of the vehicle was entrusted by the petitioner, registered owner of the vehicle, to the O.P. No.2.
7. The Learned Senior Counsel further submitted that the vollies of documents brought on record (vide Annexures to the CRAN 556 of 2015) clearly show that ownership of the motor vehicle and lawful possession thereof had both passed to the O.P. No.2/transferee. The entire consideration amount had also passed and the petitioner had intimated to the authorities that he had sold the vehicle and had no objection to the transfer of registration. Application for transfer of vehicle in the name of O.P. No.2 also bore signature of the petitioner. Confirmation of such fact can be found from the letter dated 02.09.2013 issued by the Branch Manager of the said bank who by that letter intimated to the Inspector-in- Charge of Contai P.S. that as per the agreement dated 3rd July, 2013 the bank loan of the petitioner had been fully liquidated out of the bank loan of O.P. No.2 on 22.07.2013 and all the requisite papers like Form Nos.29, 30, 34 & 35 duly signed together with bank's forwarding letter for transfer of ownership in favour of O.P. No.2 were given to the petitioner but he only furnished the Form No.35 to the M.V. Office which is highly detrimental to the interest of the bank. Thus it is apparent that the petitioner withheld those documents with dishonest intention and cheated the O.P.No.2 by betraying the trust. All these materials available on record are, therefore, suggestive of the fact that the O.P. NO.2 is the owner in lawful custody of the vehicle.
8. Mr. Moitra argued that there is no absolute rule or law which provides that vehicle should invariably be given in custody of the person in whose name it is registered, but where the rival claimant has been able to establish superior claim or title over the vehicle, its custody can be entrusted to him. The Learned Magistrate has exactly done that after taking into consideration of all those documents and being satisfied that the vehicle has been transferred to the O.P. No.2 by agreement dated 3rd July, 2013, that he has acquired right to posses the vehicle and that the vehicle was seized from his possession and directed return of the vehicle to the O.P.No.2 by passing the impugned order which is an eloquent and reasoned order. He, thus concludingly submitted that the impugned order being just, proper and legal, no interference is warranted and the Revisional Application be dismissed and the stay order be vacated. He placed reliance on the decisions reported in AIR 1979 Karnataka 182 (Nemanna Yellappa Khanaji Vs. Syndicate Bank, Ankola & Ors.); AIR 1980 Supreme Court 871 (Panna Lal Vs. Chand Mal & Ors.); 1985 Cri L J 951 (V.Parakashan Vs. K.P. Pankajakshan & Anr.); 1995 (1) Crimes Orissa High Court 803 (Basanti Pradhan Vs. State of Orissa & Ors.); AIR 1998 Kerala 128 (Mathew Thankachan Vs. V. G.Manoharan & Ors.); 2001 Cri LJ 3024 (Prakash Tarachand Sakhre Vs. Ashok Pundloikrao Wajge & Anr.) and 2007 Cri L J 819 (Rabindra Kumar Pati Vs. State of Orissa & Anr.) in order to substantiate his submission.
9. Mr. Tirthankar Ghosh, Learned Counsel appearing on behalf of the petitioner, on the other hand, contended that although the agreement between the parties was executed on 3rd July, 2013 but nothing fruitful happened out of it. Neither the consideration was paid nor the transfer of the loan amount of the petitioner to that of the O.P. No.2 was made within the stipulated period of one month. Therefore, the conditions being not fulfilled there was no concluded contract and there was no transfer of ownership or possession and the custody of the vehicle remained with the petitioner who is its registered owner. But the O.P. No.2 took possession of the vehicle by theft and so the petitioner filed a complaint and the police seized the vehicle. He further contended that the petitioner has not received a single farthing from the O.P. No.2 and money receipts produced by the O.P. No.2 are forged documents and so those cannot be relied upon without examination and opinion of Handwriting Expert. Since the petitioner is the registered owner of the vehicle he is legally entitled to get back the vehicle and the Learned Magistrate rightly directed return of the vehicle to the petitioner by his order dated 03.03.2014. The O.P. No.2 challenged such order before this Court in CRR No.1013 of 2014 making out a new case of payment of the entire consideration by annexing those forged money receipts. This Court after hearing the parties set aside that order and directed the Learned Magistrate to reconsider the application for return of the vehicle and the Learned Magistrate passed the impugned order directing the petitioner to return the vehicle to the O.P. No.2. According to Mr. Ghosh, the impugned order was passed without applying judicial mind and without considering the provisions of the Motor Vehicles Act and thus it is bad in law and is liable to be set aside. He cited the decisions reported in AIR 1968 Calcutta 564 (Smt. Mahamaya Dasi Vs. Sanat Kumar Law); 1986 CCrLR (Cal) 63 (Ramraj Choudhury Vs. Ram Ujager Choudhury); 1988 Cri L J 810 (S.Abdul Jabbar Vs.Khaleel Ahamed & Ors.); 1989 Cri LJ 2537 (Parveen Kumar Vs. The State of Himachal Pradesh & Anr.) and (2015) 2 SCC (Cri) 408 : (2015)3 SCC 679 (HDFC Bank Ltd. Vs. Reshma & Ors.) in support of his contention.
10. Having regard to the rival submission and contention advanced by the Learned Counsel appearing for the parties in the light of the decisions placed by them, I would like to say at the very outset that the law is well- settled on the point that the transfer of ownership of a vehicle is a matter governed not by the provisions of the Motor Vehicles Act but by the provisions of the Sale of Goods Act. Motor Vehicle being a movable, transfer of ownership takes effect from the date of the sale and not from the date on which transferee's name is recorded. As between the transferor and the transferee the sale is complete before the transfer of the Registration Certificate. Immediately the sale is effected with intention to pass title, the registered owner loses his right and the ownership vests with the transferee. The completion of sale of motor vehicle is not dependent on the transfer of its registration certificate. Failure to report to the Registering Authority may involve penalty prescribed by Section 50 or by Section 177 of the Act but such failure to report does not prevent title passing from the transferor to transferee. Nowhere in the Motor Vehicles Act it is stated that non-reporting of the fact of transfer of ownership will render the transfer inoperative or ineffective. Further established position is that the actual owner can be different from the registered owner and if it is proved that the registered owner has transferred the ownership to a different person, the tortious liability will have to be borne by the transferee despite the non-transfer of the registration and in such cases, the registered owner cannot be made liable.
11. In this context I think it appropriate to refer to the observation of Delhi High Court in the Oriental Fire and General Insurance Co. Ltd. Vs. Smt Vimal Rai and Ors. (AIR 1973 Delhi 115) to the effect that the sale of motor vehicle is governed by the Sale of Goods Act and is complete when the consideration is paid and the vehicle is delivered irrespective of the fact whether the sale has been registered with the Registering Authority or not. Also the Himachal Pradesh High Court in Krishan Lal Vs. State of H.P. and Anr. (1994 Cri L J 2539) held that where the purchaser was in lawful custody of vehicle in pursuance of an agreement for sale entered into between the purchaser and the owner, the later is not entitled to possession of the vehicle merely because the Registration Certificate is in his name.
12. The Hon'ble Supreme Court in the case of M/S. K.L.Johar and Company Vs. The Deputy Commercial Tax Officer, Coimbatore III reported in AIR 1965 Supreme Court 1082 while distinguishing a hire-purchase agreement and a sale held as under:
"11. A hire-purchase agreement is distinct from a sale in which the price is to be paid later by instalments. In the case of a sale in which the price is to be paid by instalments, the property passes as soon as the sale is made, even though the price has not been fully paid and may later be paid in instalments. The essence of a sale is that the property is transferred from the seller to the buyer for a price, whether paid at once or paid later in instalments. On the other hand, a hire-purchase agreement, as its very name implies, has two aspects. There is first an aspect of bailment of the goods subjected to the hire-purchase agreement, and there is next an element of sale which fructifies when the option to purchase, which is usually a term of hire-purchase agreements, is exercised by the intending purchaser."
It was further observed by Their Lordships that the fact of registration by itself in one name or another may not be determinative of the ownership of the vehicle.
13. Before entering into the arena of merits of the matter I think it would be useful to refer to the relevant provisions of law which have a direct bearing upon the issue of controversy with which we are now concerned.
i) Section 451 of the Cr PC deal with the custody and disposal of property during an enquiry or trial. The Explanation appended in the Section gives a very wide meaning to the word property which includes property of any kind or document in respect of which an offence appears to have been committed or which appears to have been used in commission of an offence or which has been produced before the Court or which is in custody of the Court.
The mode of disposal of property may include its destruction, confiscation, delivery to the person having title or possession of property, restoration to the person dispossessed or sale etc. This Section gives power to the Court to order the custody and disposal of property pending enquiry or trial which has been exhibited. The Court may order it to be given in custody to any party during inquiry or trial on furnishing an indemnity bond. This Section applies to any kind of aforesaid property, which is produced before the Court or is in custody of the Court during enquiry or trial in a criminal case.
This Section empowers the Magistrate to order the custody and disposal of property pending investigation or trial using his discretion and such discretion should not be arbitrary. He should also give an opportunity to the parties claiming interest in the seized property to be heard in the matter.
The order of interim custody shall, however, depend on the nature of the property and the circumstances of the case. Where the Magistrate finds that the person who is given custody of the property under this Section is not taking proper care to look after it or misusing it, he may pass fresh order regarding the custody of such property.
It must be stated that while passing an order under Section 451, the Court merely decides about the custody or disposal of the property involved in the case, but does not decide the question of title or rights of the parties over the property. The term "production before the Court" with reference to the property used in this Section does not necessarily mean actual physical possession or custody by the Court. The Court may have control over the property even without its actual possession or custody.
ii) Section 5 of the Sale of Goods Act : "5. Contract of sale how made.--
(1) A contract of sale is made by an offer to buy or sell goods for a price and the acceptance of such offer. The contract may provide for the immediate delivery of the goods or immediate payment of the price or both, or for the delivery or payment by instalments, or that the delivery or payment or both shall be postponed.
(2) Subject to the provisions of any law for the time being in force, a contract of sale may be made in writing or by word of mouth, or partly in writing and partly by word of mouth or may be implied from the conduct of the parties.
iii) Section 50 of the Motor Vehicles Act: " Transfer of ownership -
Where the ownership of any motor vehicle registered under this Chapter is transferred,"
(a) the transferor shall
(i) within fourteen days of the transfer, report the fact of transfer to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee;
(ii) within forty-five days of the transfer, forward to the registering authority referred to in sub-clause (I) -
(A) a no objection certificate obtained under Section 48;
or (B) in a case where no such certificate has been obtained,- (I) a receipt obtained under sub-section (2) of Section 48; or (II) a postal acknowledgment received by the transferor if he has sent an application in this behalf by registered post acknowledgment due to the registering authority referred to in Section 48, together with a declaration that he has not received any communication from such authority refusing to grant such certificate or requiring him to comply with any direction subject to which such certificate may be granted;
(b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he resides, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration."
14. On the backdrop of aforestated position of law let me now proceed to examine the materials on record in order to see whether the agreement dated 3rd July, 2013 was acted upon and the sale of the vehicle was effected. Undertaking such exercise I find that although the petitioner stigmatized the money receipts as manufactured before the Learned Court below but he did not raise any voice of protest against the other documents. I further find that the petitioner has not filed any counter- affidavit controverting the averments made in the vacating petition (CRAN No.556/15) and the veracity of the documents annexed to it. Be that as it may let me look into the agreement dated 3rd July, 2013 which is an undisputed document and execution of which is admitted. It appears that such agreement was executed on 3rd July, 2013 by and between the petitioner as the first party and the O.P. No.2 as the second party pertaining to the vehicle under reference on the terms and conditions referred in the agreement which are detailed as under:-
"1. Consideration - That the consideration of the said 1st party's Truck has been settled and fixed as Rs.12,30,000/- (Rupees Twelve lakhs thirty thousand only), which is to be paid by 2nd party to 1st party for having purchased the said Truck.
2. Payment of consideration - Entire payment of consideration will be made by the 2nd party, particularly on the date, when the 1st party will transfer the ownership of the vehicle in favour of the 2nd party in the Motor Vehicles Department of the State of West Bengal at Contai.
3. Bank due and mode of payment of rest consideration and bank loan - That the 1st party purchased the Truck through Contai Co-operative Bank Ltd. Contai branch by hypothecating the said truck to the bank and presently Rs.9,47,000/- (Rupees Nine lakhs forty seven thousand) only remained outstanding against the 1st party as on 15.04.13 and the 2nd party agreed to the condition that he will either pay the entire outstanding amount to the Bank fully or pay the outstanding loan amount of 1st party according to Bank's instalment and thereby instalment by instalment, or the 2nd party will transfer the loan amount in his name from the name of 1st party, positively within one month from the date 03.07.2013 and both parties agreed with that whatever the Amount paid to bank by 2nd party in connection with the 1st party's loan, will be adjusted against the payment of consideration fully and in that case the 1st party will clear out his fixed deposit, which has been deposited to the Bank as down payment, at the time of hypothecation of the said Truck. However, the 2nd party will be at liberty to take loan from Contai Co-operative Bank, Nanda Kumar Branch or from any other branch of any other reputed bank for clear out or repayment of entire outstanding loan of the vehicle, remained in the name of 1st party.
4. Handover of physical possession and thereby no liability - As the physical possession of the said Truck has been handed over by 1st party to the 2nd party having the Advance amount from him on 03.07.2013 on good faith along with all original documents of the said Truck, henceforth the 1st party will have no liability and responsibility with the said Truck. However, if anything wrong (accident) be happened on road, the 1st party will help the 2nd party for removal of the said problem, without the money help. However the 2nd party will not move the Truck anywhere till the transfer of ownership will be made.
5.Insurance - As the Insurance of the said Truck remains in the name of 1st Party, if any insurance claim is required to be raised, so far as the said Truck is concerned, those will be raised in the name of 1st party but those amount will be payable to the 2nd party entirely offer realisation of the same from insurance company.
6. Garage dues or market dues - There is no garage dues or market dues remains outstanding against the said Truck and if such dues be explored later on, those will be paid by 1st party till 03.07.2013 and henceforth those will be paid by the 2nd party.
7. Transfer of ownership - After clearance of all or entire consideration price to be paid by the 2nd party, either by payment of the same to 1st party or to the Bank in connection with said hypothecation, The 1st party will be bound to transfer the ownership of the vehicle in the name of the 2nd party in the Contai Motor Vehicles Deptt. of the State."
The agreement was signed by both the parties. The aforesaid conditions of agreement have been reproduced in verbatim as detailed in Annexure-A.
15. On the basis of the aforesaid agreement and as per case put up by the 2nd Party/O.P.No.2, a sum of Rs.4,30,000/- was paid in cash by the 2nd Party/O.P. No.2 to the 1st Party/Petitioner as Advance and thereafter he paid Rs.8,00,000/- to the 1st Party/Petitioner by liquidating the loan of the vehicle by getting the loan account of the 1st Party/petitioner transferred in his newly opened loan account. On the basis of the said agreement, possession of the vehicle had been handed over to the 2nd Party/O.P. No.2 and it was agreed that onward, 2nd Party/O.P. No.2 shall be responsible for all the accidents, insurance claim etc. and the 1st Party/Petitioner shall have no liability and responsibility with the said truck. The money receipts (Annexure-B and Annexure-C), Sale Receipt (Annexure-E) and the Loan Pass Book bearing account No.8011915 in the name of the borrower O.P. No.2 show that the entire consideration of Rs.12,30,000/- was paid and received in terms of the agreement. Form No.29 executed by the 1st Party/Petitioner shows that he had sold the truck to the 2nd Party/O.P. No.2 and also delivered its possession to him. Form No.30 which is report of transfer of ownership of motor vehicle shows that the 1st Party/ petitioner had declared that he had sold the truck to the 2nd Party/O.P.No.2. The letter dated 09.07.2013 spells out that the petitioner wrote a letter to the State Transport Authority, West Bengal praying for cancellation of permit No.NP/94186/2011 in respect of the vehicle under reference and his prayer was allowed and the permit was cancelled. Letter dated 23.07.2013 (Annexure-F) issued by the Branch Manager of the said bank to the Registering Authority, Motor Vehicles, Contai reflects that the loan issued to the petitioner against hypothecation of the vehicle was liquidated in full on 22.07.2013 out of loan amount disbursed to the O.P. No.2 and so request was made for change of the hypothecation and for transfer of the vehicle in favour of the O.P. No.2. Similar intimation was sent by the said Branch Manager to the Inspector-in-Charge, Contai P.S. by his letter dated 02.09.2013. Also the report submitted by the Investigating Officer before the Learned Court below confirmed the factum of sale of the truck on payment of the consideration in terms of the agreement between the parties. It was further submitted in that report that the petitioner collected the whole lots of original documents of transfer from O.P. No.2 and kept in his own custody on 23.07.2013 and he was playing this game. Exercising the powers under Section 73 of the Indian Evidence Act, 1872 I find that the signatures of the petitioner appearing on various documents as have already been discussed tally with the admitted signature of the petitioner on the agreement. Therefore, from the materials on record it becomes established without having any room for doubt that the truck was sold by the petitioner to the O.P.No.2 and he also handed over its possession to the O.P. No.2.
16. The possession of the vehicle at the time of occurrence was with the O.P. No.2 and that too on the basis of an agreement to sell as detailed above. In other words, the O.P. No.2 has acquired his right of possessing the vehicle in question on the strength of a valid contract between him and the petitioner and not by theft as alleged by the petitioner. That is to say that the O.P. No.2 was in lawful possession of the truck. In this context I think it appropriate to refer to the decision of the Nagpur High Court reported in AIR (29) 1942 Nagpur 82 (Budhulal Harnarayan Agarwal Vs. Sukhman) wherein it was held as under:
"The expression "person claiming to be entitled to possession" does not mean the owner. Ownership involves a question of title, whereas possession does not. Where the articles were seized from the custody of the pledgee and it has been found that he did not come into possession of it by illegal means, the articles must be returned to the pledgee. The pledgee's possession being under a contract must be regarded as legal possession and, if the contract is valid, it must be assumed that he would be the person entitled to possession thereof as against the other party to the contract." Also under Section 110 of the Indian Evidence Act there is always a presumption that a person who is in actual physical possession of the property is the owner of such property unless contrary is established. The petitioner cannot be permitted to get back possession of the vehicle through this Criminal Proceeding and the remedy, if any, of the grievance floated by him lies elsewhere. Therefore, the O.P. No.2 is entitled to possession of the vehicle.
17. Before concluding the discussion, I would like to add that the decision in the case of Parveen Kumar Vs. The State of H.P. & Anr.(supra) cited by Mr. Ghosh, Learned Counsel appearing for the petitioner, the claimant/ petitioner failed to prove either the possession of the vehicle or payment of Rs.40,000/- to the respondent No.2 in terms of the agreement. In the case of Smt.Mahamaya Dasi Vs.Sanat Kumar Law (supra) the petitioner claimed title to the disputed vehicle and all the requisite papers including the Blue Book were in her name but the car was in possession of the respondents. Petitioner alleged that the respondents borrowed the car but refused to return it. The respondents failed to account for their possession satisfactorily. In the case of S. Abdul Jabbar Vs. Khaleel Ahamed and Others (supra) the respondent claimed to have purchased the vehicle from the petitioner and produced some documents regarding such purchase but the petitioner denied having executed any agreement of transfer or of having signed Form No.29 for transfer of the vehicle. In that case there is reference of a decision reported in 1984 Cri LJ 1580 (Kant) wherein it was pointed out that there is also possibility of some other person undisputedly being owner of the vehicle though not registered owner being entitled to interim custody. In the case of HDFC Bank Limited Vs. Reshma & Ors. (supra) the question arose whether the Financier is liable to pay compensation in cases of accidents caused by vehicle when vehicle under hypothecation is not insured by the borrower who is in possession of the vehicle and it was held by the Hon'ble Supreme Court that it is established law that the person in possession of the vehicle under hypothecation agreement is treated as owner and that the terms in hypothecation agreement did not convey that the appellant financier had become owner and was in control and possession of the vehicle. The other decision cited by Mr. Ghosh being 1986 C CR LR (Cal) 63 (supra) relates to custody of the seized property during the period of investigation and trial under Section 451 Cr.P.C. In that case a lorry belonging to the respondent No.1 was recovered from the possession of the petitioner. The lorry and the connected documents were handed over to the petitioner by the Respondent No.1 in pursuance of a contract on condition of payment of Rs.3,000/- per month. But the petitioner did not pay and refused to return the lorry. The petitioner's contention however was that on the basis of an agreement for sale he paid Rs.60,000/- and the vehicle was handed over to him and he thus claimed return of the vehicle to his custody. The Trial Court returned the vehicle to the petitioner from whose possession it was recovered. The Additional Sessions Judge set aside that order and this Court held that custody of the seized article for the duration of the enquiry or trial should be restored to the party who was actually in possession at the time of inception of the proceeding provided such possession was not obtained by deceit or violence and an acceptable plea justifying his possession is established. Thus it is apparent that all the aforesaid cases are distinguishable from the case on hand by a special feature that the vehicle was transferred and its possession was handed over to the O.P. No.2 in pursuance of an agreement. Therefore, those decisions can have no manner of application in the instant case. On the contrary the decisions referred to by Mr. Moitra, the Learned Senior Counsel appearing for the O.P. No.2, are quite relevant and on the point and thus have a sound bearing upon the present case.
18. In view of the aforestated reasons, I do not find any illegality in the order under reference which has been passed after correctly appreciating the law and facts in this particular behalf by the Learned Additional Chief Judicial Magistrate, Contai, District Purba Medinipur. The present Revisional Application being devoid of any merit is accordingly dismissed. The existing stay order stands vacated.
19. Both the Revisional Application and the CRAN being No. 556 of 2015 are thus disposed of accordingly.
20. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.
(Shib Sadhan Sadhu, J.)