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6.2. The respondent no.2, under the said HP agreement was under an obligation to pay the amount/instalment and in that terms of the HP agreement, the vehicle was handed over to the accused. On realizing that the petitioner company is being cheated as the cheques given by the accused were bounced for insufficient funds in the relevant bank account, above said complaint was filed. The petitioner also filed an application under section 93 of Cr.P.C. being Cri.Misc.Application NO. 49 of 2002 inter alia prayed for issuance of a search warrant to the Police Inspector, Salabatpura Police Station to seize the above said motor car and after hearing the complainant-applicant, the learned Magistrate passed orders for issuance of warrant and seizure of the car in question. But before the motor car could be handed over to the petitioner on further orders, respondent no.2 raised objections and submitted that custody of the vehicle in question may be restored to him as he was enjoying possession of the motor car under a contract as a registered owner and there is bonafide dispute as to the terms and amount of payment. As per Mr. Bharda order under section 93 Cr.P.C. was not legal or proper.

9. The decision-common order allowing the Criminal Revision Application of respondent no.2 and rejecting the say of the original complainant-finance company has given rise to both these pending proceedings.

10. The say of Mr. Bharda learned counsel is that the petitioner company has attempted to misuse the process of the court. The finance company could have taken over the custody of the vehicle in question under the HP Agreement. There was no need to brand the respondent as cheater or a person offender of criminal breach of trust. Many installments have been paid and when there was no offences of either cheating or criminal breach of trust , there was no need for the petitioner company to file a criminal complaint or to move an application for seizure of the vehicle in question under section 93 Cr.P.C. Therefore, pending hearing and final disposal of the criminal case the custody of the vehicle in question should be handed over to him, as per terms and as he is the registered owner.

18. The learned Sessions Judge has not appreciated the facts in the light of the relevant law applicable and/or terms of the HP agreement available on record. When the learned Magistrate has passed an order of seizure of the vehicle in question, on merits, while dealing with the application under section 93 of Cr.P.C. he ought to have accepted the request made by the petitioner company at the initial stage. But the learned Magistrate committed a serious error in rejecting both the applications i.e. application of the petitioner company as well as the application preferred by the registered owner ignoring resultant effect. No Special reasons are offered for keeping the vehile with the court. A valuable vehicle unnecessarily is lying with the police and the value of the vehicle is getting deteriorated day by day. The learned Magistrate ought to have appreciated one aspect that the vehicle in question needs to be handed over at least to one party so that the same can be maintained in good shape and condition till the disposal of the case and final order on muddamal. So both the courts below have committed error of law as well as jurisdiction. When discretion is required to be exercised then the same should be exercised in the light of the facts available on record and the law applicable to the facts of the case. Balanced and objective appreciation is only importrant arm where discretionary decision is called for.

19. It is true that ordinarily when any property such as motor vehicle is attached or seized by the police or is produced before a court in compliance of the warrant issued by the court under section 93 of Cr.P.C., one has to consider the effect of the provisions of Motor Vehicles Act (MV Act for short) for finding out the claimant. The provisions relating to registration of motor vehicles, if seen, it is clear that registration and issuing of registration certificate are essential for any such motor vehicles , before it is put to use that any person in whose favour such a certificate of registration is issued, obviously, the registered owner . It would ordinarily be prudent and in consensus with the provisions of MV Act. Until, transfer of ownership, is entered in the certificate of registration, in accordance with relevant rule, the person in whose favour such certificate of registration is issued, is the owner and entitled to possession of the said vehicle. But in the light of scheme of sections 48,50 and 51 of the MV Act, this ordinary principle would not help a third person claiming to be the bonafide purchaser with value without notice against a financier having written HP agreement executed in its favour by purchaser in whose favour/benefit the finance has been disbursed. Same is the case under lease agreement or hypothecation agreement. In the present case, the say of the petitioner company is that the vehicle in question has been financed by it and there is a clear agreement between the company and the registered owner. So, unless the amount is paid, and formality of transfer of vehicle is concluded, the registered owner would remain only ostensible owner. The case of such owner would be on a better footing against a third party when genuineness of No Objection Certificate, required to be issued under section 48 of MV Act or a deed of transfer is under serious dispute; but not against a financier - the real owner of the vehicle.