Rajasthan High Court - Jaipur
Beni Dan vs Laxmichand And Anr. on 3 July, 1995
Equivalent citations: 1996CRILJ1191, 1996WLC(RAJ)UC479
ORDER Rajendra Saxena, J.
1. This petition filed under Section 482, Cr. P. C. has been directed against the judgment dated 18-1-1995 passed by the learned Sessions Judge, Jaisalmer, whereby he allowed the appeal filed by non-petitioner Laxmi Chand, set aside the order dated 1-12-1994 passed by the learned Chief Judicial Magistrate, Jaisalmer and directed that Truck No. RJ-15 G 0093 be taken from the possession of petitioner Benidan and his driver Inder Singh and the same be handed over to non-petitioner Laxmichand.
2. Stated in succinct, the necessary facts for disposal of this petition are that on 22-6-93 the S. H. C., Police Station, Jaisalmer checked truck No. RJ 15 G 0093, which was being driven by Inder Singh, the driver of petitioner Beni Dan. The said driver did not possess the registration certificate, insurance certificate, and any other documents pertaining to the said truck. The S. H. O. seized the said truck under section 207, Motor Vehicles Act. On 23-6-94, he submitted a criminal complaint against petitioner Benidan, as the alleged owner of the said truck and Inder Singh, driver in the Court of learned Munsif and Judicial Magistrate, Jaisalmer. The case was transferred to the Court of learned Chief Judicial Magistrate. On 24-6-94, non-petitioner Laxmichand filed an application under Section 451, Cr. P. C. praying for the interim custody of the said truck alleging that initially the registration number of the said truck was GJ-2-T 7740, that it was registered in the name of Ishwar Bhai, that later on he purchased the said truck from Ishwar Bhai that its new registration number is RJ-15 G 0093, and that now he is its registered owner. He further mentioned that the police has now seized the said vehicle and that Beni Dan has also submitted an application for taking the said truck on Supardginama for which he is not entitled. He also mentioned in his application that he has deposited the road tax, that the insurance certificate has been issued in his favour and that if the said truck is given on Supardginama to any other person, still then he would be liable for all liabilities being its registered owner. Along with his application, he also submitted copy of registration certificate dated 19-11-93, permit for goods carrier valid for the period from 20-12-93 to 19-12-98 and a photostat copy of the order dated 1-9-93 of the learned Chief Judicial Magistrate passed in Civil Misc. Case No. 392/93, "Beni Dan v. State and Ishwar Bhai Keshav Bhai Patel," whereby the truck bearing Registration No. GJ-2T 7740, which was earlier seized by the S. H. O., Police Station, Jaisalmer under Section 207, Motor Vehicles Act, was ordered to be given on Supardginama under Section 451, Cr. P. C. to its the then registered owner Ishwar Bhai.
3. Petitioner Beni Dan in his reply dated 30-9-94 as also in the application averred that non-petitioner Laxmi Chand Rathi under the alleged capacity of power of attorney holder of Ishwar Bhai, the registered owner had already sold truck No. GJ 2-T 7740 to him in March 1992 and delivered the possession thereof and that thereafter he was in continuous possession of the said truck and plying the same, that earlier on 22-6-93, the said truck was seized by the S.H.O., Police Station, Jaisalmer under Section 207, Motor Vehicles Act and the learned Chief Judicial Magisttrate by his order dated 1-9-93 had directed that the said truck be given on Supardginama to its registered owner Ishwar Bhai. He further averred that against the said order dated 1-9-93 he filed a revision petition in the Court of learned Sessions Judge, but during the pendency of the said revision petition, a compromise was entered between him and Laxmi Chand and a fresh agreement dated 20-9-93 was excuted by them and the possession of the truck in dispute was handed over to him and as such in pursuance of the said compromise, he did not press his revision petition. He further averred that Laxmi Chand filed criminal complaint against him under Section 107, Cr. P. C, wherein he has clearly admitted that he had sold the said truck to petitioner. The petitioner pleaded that as per terms of the agreement dated 1-9-93 Laxmi Chand agreed to get the registration of the truck in dispute transferred in the name of arbitrator Sultan Singh, till he (the petitioner) deposited all the instalments, but instead he fraudulently got the said truck registered in his name and contravened the terms of the said agreement. He further pleaded that the said truck continued in his possession and was being plied by him and was seized by the police on 22-6-94 from his possession and that the road tax and the insurance of the motor vehicle were also paid by him. He alleged that Laxmi Chand had handed over the original registration certificate, permit and other documents of the truck to Inder Singh, driver, which were lost on 30-12-93 and for that he had lodged FIR dated 31-12-93 at Police Station, Barmer. However, later on he came to know that on 19-12-93 Laxmi Chand in contravention of the terms of the agreement illegally got the registration of said vehicle in his name. The petitioner further pleaded that non-petitioner Laxmi Chand in collusion with the police got the said truck seized, that in fact he is the de facto and true owner of the said truck and was prepared to execute undertaking and prayed that the said truck be handed over to him on Supardginama. In support of his application, he also submitted affidavits of Sultan Singh and Inder Singh, the photo state copy of the agreement dated 20-9-93, certified copy of the compromise application dated 22-4-93 filed by Laxmi Chand and Beni Dan before the S.D.M., Jaisalmer, certified copy of the order dated 23-9-93 of the S.D.M. Jaisalmer passed in Cr. Case No. 137/93, "State v. Benidan dropping the proceedings against the petitioner under Section 107, Cr. P. C. on the basis of compromise, the copy of the criminal complaint filed under Section 107, 116(3), Cr.P.C. copy of the statement of Laxmichand dated 23-7-93 recorded by the S.H.O. in inquiry under Sections 107,116(3), Cr. P. C, wherein the former admitted the factum of sale of the truck in question in favour of petitioner Beni Dan, the copy of complaint dated 23-7-93 filed by Laxmichand to the S.H.O. Police Station, Jaisalmer, the copy of road tax dated 19-4-94 for an amount of Rs. 1534/- deposited on behalf of Laxmi Narain by the petitioner, the copy of insurance over note valid from 15-3-94 to 14-3-95 of the said truck, its fitness certificate valid from 29-3-94 to 19-3-95, copy of the petitioner's application dated 24-4-94 to the District Transport Officer, Jaisalmer alleging that the disputed truck and its documents were with him and that duplicate copies of those documents be not issued in favour of Laxmi Narain, copy of report No. 162 dated 31 -12-93 of the daily diary of Police Station, Jaisalmer of petitioner Beni Dan alleging that the registration certificate and other documents of the truck in dispute have been lost and the copy of the notice dated 24-1-94 issued by Shri Rani Dan, Advocate to non-petitioner Laxmichand, application dated 28-12-93 filed by the petitioner to the D.T.O., Jaisalmer that the truck in dispute be not transferred to any other person's name, copy of application dated 9-2-94 filed by the petitioner in the District Consumer Forum, Jaisalmer against Laxmi Chand praying that the latter be directed to hand over the original registration certificate, permit, token etc. of the disputed truck to him, the copy of the reply dated 14-9-94 filed by Laxmichand and the copy of the order dated 28-10-94 passed by the District Consumer Forum rejecting petitioner's said application on the ground that the same was not maintainable.
4. It appears that on 24-8-94, the learned C.J.M. read over the accusation for the offences under Sections 192 & 194 of the Motor Vehicles Act and explained the same to petitioner Beni Dan and Inder Singh. They admitted that on 22-6-94 at the time of checking of the truck by the police its registration certificate and insurance certificate were not available with them and pleaded guilty. The learned Chief Judicial Magistrate, therefore, on the same day convicted them for the said offences and sentenced each one of them for Rs. 100/- on each count. The applications filed by Laxmichand and Beni Dan under Section 451, Cr. P. C. were also converted under Section 452, Cr. P. C. After hearing the parties, the learned Chief Judicial Magistrate by his order dated 1 -12-94 held that though Laxmichand was the registered owner of the disputed truck but the said truck was in lawful possession of the petitioner and that the same was also seized by the police from possession of his driver Inder Singh. He, therefore, directed that the said truck be handed over to petitioner Beni Dan and driver Inder Singh. Aggrieved by the said order Laxmichand filed an appeal before the learned Sessions Judge, who by his impugned judgment dated 18-1-95 set aside the order of the learned C.J.M. and directed that the possession of the said truck be taken from the petitioner and the same be handed over to Laxmichand. Hence this petition.
5. I have heard the learned counsel for the parties and the learned Public Prosecutor at length and carefully perused the record of the lower Courts.
6. Mr. L. D. Khatri has vehemently urged that the learned Sessions Judge has conveniently ignored the voluminous evidence, which was available on record and from which it stands firmly established that on 22-6-94 the police had seized the said truck from the possession of the petitioner through his driver Inder Singh and that petitioner's possession was not illegal. He has asserted that non-petitioner Laxmichand did not deny the excution of the agreement dated 20-9-93. On the other hand he specifically admitted in his complaint dated 23-7-93 as also in his statement recorded by the police in an inquiry under Section 107/116(3), Cr. P. C. that he had sold the truck in question to the petitioner and that amount of some instalments was due. Shri Khatri has claimed that as per terms of agreement dated 20-9-93, the said truck was sold to the petitioner by Laxmi Chand for an amount of Rs. 5,65,000/- and against that amount the petitioner had already paid an amount of Rs. 3,87,000/- upto 20-9-93 and that only an amount of Rs. 2,15,000/- remained to be paid. Accordingly to him, the petitioner paid Rs. 1,00,000/- on 30-9-93 to arbitrator Sultan Singh and also paid two further instalments, but Laxmichand in clear violation of the terms of the said agreement instead of getting the truck in question transferred in the name of Sultan Singh surreptitiously got its registration transferred in his name. Shri Khatri has submitted that the petitioner had already paid more than 80% amount of the sale price of the truck to Laxmichand and was in its continuous possession since 20-9-93 and, therefore, in such circumstances petitioner was the only person best entitled to take possession of the truck in question and that the learned C J.M. did not commit any illegality. However, the learned Sessions Judge, simply relying on the fact that the truck in question was registered in the name of Laxmichand, and ignoring the aforementioned relevant facts and material circumstances has committed patent illegality in setting aside the order of the learned C J.M. and in directing that the truck be delivered to Laxmichand.
7. On the other hand, Sarva Shri Surendra Surana and B. D. Sharma, have urged that admittedly Laxmichand is the registered owner of the truck in question, that earlier also the learned Chief Judicial Magistrate had handed over the said truck on Supardginama to its the then owner Ishwar Bhai and that in case the vehicle is delivered on Supardginama to Beni Dan then it has to be kept idle as only the registered owner can play the vehicle and it cannot be used on the road hence no purpose would be served in giving the truck of Supardginama. They have asserted that Laxmi Chand is the best person entitled to take the possession of the truck. They have also reiterated the reasonings given by the learned Sessions Judge.
8. Mr. D. S. Rathore, the learned Public Prosecutor has also supported the impugned judgment.
9. I have given my most thoughtful and anxious consideration to the rival submissions made before me.
10. From the pleadings and the documents submitted by the parties in the lower Court undisputed facts which emerge out are that initially registration number of the truck in dispute was GJ 2T 7740 and its registered owner was Ishwar Bhai Keshav Bahi Patel resident of Bijapur, Gujarat, that the said truck was earlier seized by S.H.O., Police Station, Jaisalmer on 26-6-93 under Section 207 Motor Vehicles Act, that in that case petitioner Beni Dand and Laxmi Chand in the capacity of power of attorney holder of Ishwar Bhai, filed separate applications under Section 451, Cr. P. C. for the Supardgi of the said truck, and that the learned C.J.M. by his order dated 1 -9-93 directed that the said truck be handed over on Supardginama to its registered owner Ishwar Bhai with certain conditions. Against that order the petitioner filed criminal revision petition No. 11/93 before the learned Sessions Judge, Jaisalmer. In that criminal revision, Beni Dan and Laxmichand filed a joint application dated 18-9-93 to the effect that they have compromised the matter through the medium of 'Lok Adalat' and as such the revision petition be dismissed. The learned Sessions Judge, therefore, dismissed that revision petition. It appears that on 23-7-93, non-petitioner Laxmichand filed an application before the S.H.O., Police Station, Jaisalmer for taking proceedings against the petitioner under Section 107 Cr. P. C, wherein he specifically mentioned that he had sold one truck to Beni Dan, that against the sale price thereof the latter had paid some amount in cash and promised to pay the remaining amount in instalments, but for last so many years, he neither paid any monthly instalment nor deposited the road tax, insurance premium and the permit fees-and that as and when he demanded the said amount from Beni Dan, he threatened to kill him and, therefore, he be bound down to keep peace. Laxmichand in his statement recorded by the S. H.O., Police Station, Jaisalmer in the said inquiry again repeated those averments and admitted to have sold the truck to Beni Dan. The police submitted a criminal complaint dated 24-7-93 under Section 107/116(3), Cr. P. C. against petitioner Beni Dan before the learned S.D.M., Jaisalmer, which was registered as Cr. Case No. 137/93. In that case Laxmichand as power of attorney holder of Ishwar Bhai and Beni Dan also submitted a joint application dated 22-9-93 before the S.D.M. to the effect that they have compromised the matter and prayed that these proceedings be dropped. Thereupon the learned S.D.M. by his order dated 23-9-93 dropped the proceedings under Section 107/116(3), Cr. P. C. against Beni Dan. It appears that on 20-9-93 Beni Dan and Laxmichand appointed Shri Sultan Singh as arbitrator, and entered into an agreement dated 20-9-93. It may be mentioned here that Laxmichand has neither filed any reply to the application filed by the petitioner under Section 451, Cr. P. C. nor denied the said agreement dated 20-9-93 nor filed any counter affidavit. He also did not controvert the terms of agreement dated 20-9-93 and the contents of affidavits filed by Beni Dan, Inder Singh, Sultan Singh and Devi Das. As per terms of the agreement dated 20-9-93, it transpires that the truck in dispute was sold in favour of petitioner Beni Dan for an amount of Rs. 5.65 lacs and against that sale amount, on 20-9-93 a sum of Rs. 2,15,000/- remained to be paid, the petitioner agreed to pay Rs. 1,00,000/- on 30-9-93 and the remaining amount in monthly instalments of Rs. 10,000/-. It was also agreed between the parties that till the said remaining amount was not paid by the petitioner, the registration of the truck in dispute shall be got transferred in the name of arbitrator Sultan Singh and thereafter the same will be re-transferred in favour of the petitioner. It appears that on 19-11 -93, Laxmichand got the registration of the said truck transferred in his name and the registration number of the truck was also changed to RJ 15 G 0093. The petitioner filed an application before the D.T.O. and also lodged a report in the police station for the loss of original registration certificate, permit, token etc. of the said vehicle. Thus prima facie, it appears that in pursuance of the agreement dated 20-9-93, the petitioner withdrew his criminal revision petition, which was pending before the learned Sessions Judge and Laxmichand Rathi filed an application before the S.D.M. that he did not want to press his criminal complaint under Section 107, Cr. P. C. with the result that both the proceedings were dismissed/dropped. Non-petitioner Laxmichand in the capacity of special power of attorney holder of Ishwar Bhai also filed an application dated 24-9-93 before the learned C.J.M., Jaisalmer in the Criminal Case No. 93/93 under Section 207 M.V. Act, wherein it was specifically mentioned that petitioner Beni Dan and Ishwar Bhai have compromised in the matter and that the said truck be given on Supardginama to him. The said truck thereafter was given in possession of petitioner Beni Dan in terms of the agreement dated 20-9-93 and since then he was plying the same and from his possession the S.H.O., Police Station, Jaisalmer again seized it on 22-6-94. It may also be mentioned here that Laxmichand did neither file any FIR nor complain to any authority that petitioner Beni Dan had taken the possession of the truck in dispute unauthorisedly or illegally. In view of the aforementioned documents and peculiar facts and circumstances, the only legitimate inference, which can be drawn is that petitioner Beni Dan was not in unlawful possession of the truck in dispute, when the same was seized by the police on 22-6-94. It is true that the registration certificate of the truck in question now stands in the name of non-petitioner Laxmichand Rathi w.e.f. 19-11-93. Similarly the permit in respect of goods carrier as also the fitness certificate of the truck stand in the name of Laxmichand, but positively on 22-6-94, when the said truck was seized by the police, it was not in his possession. On the other hand Devi Dan was in de facto and lawful possession of the truck on that day.
11. Now, the question arises as to who is the person best entitled to claim possession of the truck in dispute?
12. In Automobiles Transport (Raj.) Pvt. Ltd. v. Dewalal, AIR 1977 (Raj.) 121, it has been held that the sale of a motor vehicle is not governed by Section 64 of the Transfer of Property Act but it being a moveable property has to be governed by the provisions of the Sale of Goods Act. It was observed that the fallacy that the provisions of the Motor Vehicles Act require that the owner of a vehicle cannot use the vehicle unless it is registered under the M.V. Act or cannot carry passengers or goods in the vehicle unless a permit in that respect is obtained by the owner and which led to the conclusion that it is only the ostensible owner, who is to be considered to be the owner of the motor vehicle irrespective of the fact that the real ownership may be with somebody else, was pointed out in the Oriental Fire and General Insurance Co.'s case. It was further held that the provisions of Motor Vehicles Act regarding registration and issue of permit have nothing to do with the ownership of the vehicle, that those documents only provide for regulation of the use of the motor vehicles in public places and if the requirements of the Act are not fulfilled, penalties are attracted and that the endorsement of the transfer in the records of the Registering Authority is not a condition precedent to the transfer nor does it deal with the legality or validity of the transfer, which must be determined by other provisions of the law. Thus a registered owner is not necessarily the real owner of a vehicle and endorsement of transfer of a vehicle in the registration records under Motor Vehicles Act is not a condition precedent for an effective transfer.
13. It is needless to mention here that under Section 452, Cr. P. C. the ordinary rule is that the property should be returned to one, who is entitled to its possession unless his possession at the time of seizure was unlawful.
14. Section 452(1), Cr. P. C. proclaims that when an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal by is destruction, confiscation or deliver to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence. The scope of power under Section 452 is summary in nature and an order thereunder does not adjudicate upon the Civil rights of the parties. The person aggrieved is free to file suit for the enforcement of his right to property. The Magistrate is not a Civil Court and has no power to decide dispute about the title while passing an order for disposal of property at the conclusion of enquiry or trial under Section 452, Cr. P. C. The Court is not to adjudicate or decide as to which party is the owner of the property. On the other hand such enquiry is limited to find out as to who is prima facie entitled to the possession of such property. Once it is ascertained that such property was seized from the lawful possession of a person then such person should be held to be best entitled to possession thereof unless of course his possession was unlawful.
15. It is also well crystallised and trite law that a person should not be dispossessed of his property without due process of law. In the instant case, prima facie, it appears that petitioner Beni Dan was in lawful possession of the truck in question on 22-6-94, when it was seized by the police. He pleaded guilty and was convicted for the offences under Sections 192 and 194, Motor Vehicles Act. Therefore, after conclusion of the trial, he cannot be deprived of his lawful possession of the truck in question under the garb of the application filed by Laxmi Chand on the ground that its registration stands in his name. As mentioned earlier Laxmichand in his criminal complaint dated 24-7-93 as also in his statement recorded by the police in inquiry under Section 107/116(3), Cr. P. C. has specifically admitted that he had sold the truck in question to Beni Dan, but averred that the latter did not pay the due monthly instalments. It is true that the certificate of registration of the Motor Vehicle is primary, but not conclusive evidence, that the holder thereof is the owner of motor vehicle specified therein. It is also true that interim custody under Section 451, Cr. P. C. of the motor vehicle should generally be given to registered owner for use in the public road and that a heavy burden lies on a person, who claims that such vehicle has been sold to him or that he has superior claim, but there cannot be any inflexible rule that under Section 452, Cr. P. C. the vehicle should be invariably returned to its registered owner. On the other hand the Court while passing an order under Section 452, Cr. P. C. should find out as to who is the best person entitled to possession of such property.
16. In Kailash Chandra v. Parasmal, 1981 RLW 260, it has been held that the fact of registration is only relevant for inquiry of the title and the consequent possession. A final title to the property or right to possess the same can only be determined by the Civil Court of competent jurisdiction. Complicated and intricate question of ci vi 1 law are not required to be decided by the Magistrate, before whom the single question is to which of the party is best entitled for possession and after considering the right to possess claimed by either party if the Magistrate decides in favour of one and against the other that should be the end of the matter as far as his Court is concerned.
17. It is curious to note that Laxmichand in his application dated 24-6-94 has also not claimed that the truck in dispute was in his possession. He has simply claimed that he being the registered owner should be given the delivery of the truck. As mentioned earlier the truck was seized from the possession of petitioner Beni Dan through his driver Inder Singh and after conclusion of the trial he cannot be deprived of its possession without due process of law. If Beni Dan has not paid the remaining sale amount of the truck mentioned in agreement dated 20-9-93, non-petitioner Laxmi Chand should seek his remedy in the Civil Court in accordance with law. The factor of equity and good conscience also tilt in favour of the petitioner, who was not in unlawful possession of the truck in question, when the police seized the same. As per terms of the agreement dated 22-9-93, which has not been denied by non-petitioner Laxmichand, the registration of the truck was to be effected in favour of arbitrator Sultan Singh till the final payment of due amount, but non-petitioner Laxmi Chand got its registration transferred in his name without notice of the petitioner. Therefore in view of these peculiar facts and documents submitted by the petitioner the presumptive evidence of the registration certificate in favour of non-petitioner Laxmichand prima facie gets rebutted.
18. In Banne Singh v. State of Rajasthan, 1985 RCC 297, there was a sale agreement of a vehicle between A and B. B was recipient of part of sale consideration made by A. Vehicle was in possession of B. There was non-payment of instalments under the agreement for sale by B. The Magistrate under Section 451, Cr. P. C. directed the delivery of vehicle to A. It was held that the delivery of the Bus to A could not be maintained. It was held that the learned Magistrate clearly fell into an error because the question before him was not about the title of the Bus but it was only with regard to the possession and when admittedly the possession of the bus was with B at the time he was alleged to have been deprived of the possession by accused A, the mere fact that the registration had not been transferred in B's name was not enough to disentitle him to the possession of the Bus.
19. Shri Surana has relied on the case, of Kavaluri Sidda Reddy v. Bathala Rangaswamy Naidu 1981 Cri LJ 1543. It was a case under Section 451, Cr. P. C. for custody and disposal of a motor vehicle pending trial in a criminal case. It was held that the motor vehicle should be released to one in whose name the registration certificate and permits stand in preference to the rival claimaint and in view of the Motor Vehicles Act.
20. The next case cited by him is Kariyappa v. P. Sreekantaiah, 1980 Cr LJ 422 (Karnataka). It was also a case under Section 451, Cr. P. C. for interim custody, wherein it was reiterated that normally registered owner is a proper person for interim custody of the vehicle pending trial of a criminal case.
21. The next case is that of Jacob v. Jayabharat Credit and Investment Co. Ltd. 1983 Cr LJ 1584 (Kerala). Again it was a case under Section 451, Cr. P. C. for interim custody of the motor vehicle pending trial. It was held that the interim custody of the motor vehicle should be given to the registered owner and at any rate should not be given to a person, who is not a registered owner, even if the police took possession of the same from him. This is because the vehicle will have to be kept idle as only a registered owner can ply the same and if the vehicle cannot be used on the road, no purpose will be served in giving interim custody to anybody.
22. Shri Surana has also relied on the case Ishar Nath v. State of Rajasthan, 1984, Cr. LR (Raj) 259. It was a case under Section 451, Cr. P. C. The registration of the tractor stood in the name of Ishar Nath while he was driving the said tractor. Accused Bhanwara Ram accompanied with others used violence and forcefully took away the said tractor from him. He lodged FIR and the police seized the said tractor. Bhanwara Ram moved an application before the Magistrate for interim custody/delivery of the tractor on the ground that the said tractor was sold to him by Ishar Nath, but in the sale-deed no sale price was mentioned. The sale deed was a typed document. This Court held that on its face value the saledeed did not appear to be genuine and real. In such circumstances this Court set aside the order of the Magistrate and directed that the interim custody of the tractor should be given to Ishar Nath the registered owner.
23. Another case cited on behalf of non-petitioner Laxmi Chand is that Sikander Beg v. State of Rajasthan, 1993 Cr. LJ 1114. Again it was a case for interim custody of the bus under Section 451, Cr. P. C. It was held that normally the interim custody of a seized vehicle should be given to its registered owner and that in absence of clear, cogent, convincing and reliable evidence a motor vehicle should not be given to a person, who is neither its registered owner nor has a permit issued for plying the vehicle.
24. I respectfully agree with the principle of law propounded in the aforementioned cases for giving interim custody of a motor vehicle under Section 451, Cr. P. C. pending trial of a criminal case. But in the case on hand, the trial of the criminal complaint filed against petitioner Beni Dan and his driver Inder Singh has already been concluded and the learned Magistrate passed the order under Section 452 Cr. P. C. holding that the possession of Beni Dan at the time of seizure of truck was not unlawful and that he was the person best entitled for possession. The facts of the aforementioned cases are also clearly distinguishable from the facts of the instant case. Therefore, these cases do not come to the rescue of nonpetitioner Laxmichand.
25. Another case cited by Shri Surana is that of Champalal v. Ramchander, . It was a second civil appeal, wherein it was held that until transfer of ownership is entered in certificate of registration, person in whose favour such certificate stands is presumed to be the owner under Section 114, Evidence Act. There is no dispute about the correctness of this dictum of law. As mentioned earlier under Section 452, Cr. P. C. a Magistrate has not to decide about ownership of the property seized by the police and produced in the Court, but has to find out while ordering for disposal of the property at the conclusion of the trial as to who is the person entitled to possession thereof to whom the delivery of such property is to be made. He is not required to decide intricate question of ownership of the property, which is the demain of Civil Court. Hence this case renders no assistance to Laxmichand.
26. In my considered opinion the learned Sessions Judge has conveniently ignored the aforementioned material facts and circumstances of this case. He has committed grave error in ignoring the fact that the truck in question was not in possession of Laxmichand, but was in lawful possession of petitioner Beni Dan on 22-6-94, which the police had seized the same. He has, therefore, committed an illegality in setting aside the well reasoned order of the learned Chief Judicial Magistrate, which amounts to abuse of the process of Court and to secure the ends of Justice the impugned judgment can not be sustained.
27. The upshot of the above discussion is that this petition is allowed and the judgment dated 18-1 -95 passed by the learned Sessions Judge, Jaisalmer is set aside and the order dated 1 -12-94 passed by the Chief Judicial Magistrate, Jaisalmer is hereby stored and affirmed. In the interest of Justice it is also directed that the petitioner shall execute a Supardginama for an amount of Rs. four lacs to the satisfaction of the learned Chief Judicial Magistrate, Jaisalmer to the effect that he shall keep the truck in question in workable and safe condition and shall produce the said truck before the Court as and when directed to do so. It is also made clear that any observation made in this order regarding the agreement dated 20-9-93 shall not in any way bind the Civil Court in deciding the title of ownership of the truck, the dispute regarding the unpaid sale amount of the truck in question and also for determining the civil rights of the parties.