Rajasthan High Court - Jaipur
Chandi Dan vs State Of Rajasthan And Anr. on 20 October, 1989
Equivalent citations: 1990(1)WLN599
JUDGMENT Mrs. Mohini Kapoor, J.
1. This petition relatee to the custody of a truck Number RRQ 3396. The Addl. Chief Judicial Magistrate, Balotra has directed that the truck be handed over to the non-petitioner No. 2, Satya Narayan, who is the registered owner of the truck and in whose favour the permit of the truck been issued.
2. This decision of the Addl. Chief Judicial Magistrate dated 18th Feb., 1988 has been challenged by the petitioner who claims that he was in possession of the truck when it was seized by the police in a case of that in which Umrao Dan and Hinglazdan are the accused.
3. It is an admitted position that the registered owner of the truck is Statya Narain, non-petitioner No. 2 and on 25th July, 1986, he had entered into an agreement with the petitioner to sell the truck for a sum of Rs., 1,30,000/- and Rs. 50,000/- was paid at that time and the remaining amount was to be paid in instalments. Documents of the truck were handed over to the petitioners.
4. The petitioner's contention is that, be has paid Rs 1,30,551/- from time to time but this faat is disputed by non-petitioner No. 2, who has admitted receipt of two instalments only and the remaining receipts are said to be forged.
5. The circumstances, in which the vehicle came to be seized by, the police are that the driver of the petitioner took the vehicle from Jaipur to Balotra on 26-7-87 and on the next day, while he was at Jodhpur and had left the vehicle in the custody of Khalasi Doongerd in, the vehicle was taken by Umrao Dan and Hinglaz Dan, accused, on a false protext. Thereafter, the vehicle was seized from a filed in village Bhandu.
6. While arguing the matter, the learned Counsel for the petitioner has emphasised that the vehicle was admittedly in possession of the petitioner end even if the instalments were not paid in time, fie non-petitioner could not take the custody of the vehicle under the agreement without following the course of law. In support of his contention, reliance has been placed on Maqbool Khan v. State of Rajasthan and Ors. 1983 RCC 98. In this case, the Ectual possession of the truck at the time it was seized by the police was of the non-petitioner, and he had also managed to get the registration transferred in his name ft was held that the actual possession of the truck at the time it was seized by the police could be a relevant factor but not conclusive to determine the question which party was entitled to possession thereof." It was observed that the non-petitioner against whom investigation of a criminal case is pending and was suspected of having committed crime could not be given ths custody of the vehicle.
7. In Banney Singh v. The State of Rajasthan and Prakash Singh v. The State of Rajasthan 1985 RCC 297, there was dispute between three persons about the custody of a vehicle which was originally registered in the name of Prakash Singh, who transferred it under hire purchase agreement to Mohanlal. The registration and the permit were also transferred in the name of Mohanlal. Thereafter, Mohanlal transferred the vehicle to Abdul Rehman but the registration and the permit were not transferred Abdul Rehman again sold the bus to Bannay Singh by an agreement aad some amount was still butstanding against Banney Singh On the date in question, Banney Singh was playing the bus when it was intercepted by Abdul Rehman, who forcibly took possession over it. Prakash Singh, Abdul Rahman and Banney Singh all claimed the custody of the vehicle Under Section 451 Cr. PC Prakash Singh claimed the vehicle on the ground that he had been the registered owner side his amount was still outstanding to BanneySingh took the stand that the vehicle was in his possession when the accused Abdul Rehman took it away and Abdul Rehman took the place that it was seized from in his possession and he is the best person to whom the vehile should be handed over. Considering the situation, it was held that the accused could not get f be premium of the alleged crime of theft and that Prakash Singh had already transferred the registration and permit and if his amount was outstanding than he had a remedy before civil court. Banney Singh was found to be in possession and he could be given the custody of the vehicle.
8. In Isher Nath v. The State of Rajasthan 1984 Cr. L.R. 259; the truck was delivered to the registered owner in a case wherein the sale deed produced by the accused was on plane paper which did not even state the sale price in which the tractor was alleged to have been sold.
9. In Hasti Mal v. Bhoja and State of Rajasthan 1987 Cr. LR (Raj) 741, considering the facts and circumstances, the vehicle was ordered to be delivered to the non-petitioner, Bhoja who had paid part of the sale price end cleared the back loan.
10. In Jag tar Singh v. The State 1987 RCC 314, the claimant of a truck on the one hand was the person in whose favour registration certificate stood on the other bard, was the person in whose favour there was an agreement of sale. Considering the circumstances and the fact that the truck was in the possession of the person in whose favour there was an agreement of safe and the vehicle was delivered to him with the further condition that he would be liable for the amount due to the RFC, who had financed the purchase of the vehicles.
11. The learned Counsel for the non-petitioner No 2 has contended that the vehicle stood in his name and the permit in also in his name and as such, he is the only entitled person to play the same, it is also contended that the sale price has not been paid to him and after getting the possession of the vehicle through the court he has again invested money in far the truck to make it road worthy. On this basis it is claimed that he should be given the possession of the vehicle.
12. In Kaushalya Devi Agarwalla and Ors. v. Hari Prasad Agarwalla and Ors., 1981 Cr.LR (NOC) 101, it was observed that the factum of possession and certificate of registration were relevant considerations for deciding as to which party should get interim custody of truck pending trial.
13. In V. Prakashan v. K P. Pankajakshan and Anr., 1985 Cr.LJ page 951, the principles governing interim custody of immovable property were discused and it was held that the interim custody can be given to a person even if not a registered owner and permit holder and if other circumstances established his ownership.
14. The case law cited by the learned Counsel for the parties has been looked into and it is to be seen whether the order passed by the learned Addl. Chief Judicial Magistrate requires any interference. The present case is one wherein it is an admitted position that the non petitioner No. 2, Satya Narain, who was the registered owner, had transferred this vehicle to the petitioner under an agreement for sale and the actual possession of the vehicle was also delivered this him. Receipt of Rs. 50,000/- plus two instalments is also admitted by non-petitioner No 2. His claim to the vehicle is on account of the fact that he has not been paid the full amount under the agreement and there is a clause in the agreement that he could take possession of the vehicle if the instalments were not paid in time.
15. The petitioner on the other hand, is not the registered owner but he was in lawful possession of the vehicle. If he had failed in payment of instalments then non-petitioner No. 2 could not have obtained custody of the vehicle by forcibly taking it in his possession by sending some man to steal the vehicle. If sale price had not been paid to him then his remedy is to approach the civil court and if necessary, get the vehicle attached and sold. He cannot became a party to proceedings where in the petitioner is complainant and same other persons are accused and get possession over the vehicle through the court. He was not in possession at the time when the property was seized and admittedly, he has transferred the same to the petitioner under an agreement for sale. After receiving about half the sale price and giving possession of the vehicle to the purchaser, he cannot be said to be a person entitled to get the possession of the vehicle. Considering the circumstance, the decision of the lower court deserves to be set-aside."
16. It may be mentioned here that the non petitioner No. 2 has claimed that he has invested certain amounts on the repairs of tha truck after obtaining delivery from the court. This aspect of the matter shall be looked into by the Addl. Chief Judicial Magistrate, who shall decide as to what amount shall be paid by the petitioner on this account.
17. In the result, this petition is accepted and it is ordered that the truck No. RRQ 3396 shall be delivered to the petitioner on his furnishing a Superdiginama in the sum of Rs. 1,50,000/- to the satisfaction of the court below for keeping the vehicle in good order and producing it in that court as and when called upon to do so.