GURAPPA HANAMANTHAPPA KATNALLI Vs. SHIVALINGAPPA DUNDAPPA TADKE

JUDGEMENT

(1.) In this petition filed under Sec.482 of the CrlPC, 1973 (hereinafter referred to as CrlPC), what is assailed and sought to be quashed is an order purporting to have been made under S.451 CrlPC by the Chief Judicial Magistrate, Bijapur on 17-7-1976 in Criminal Case 961/1976, which has been confirmed by the Sessions Judge, Bijapur, by his order dated 29-10-1976.

(2.) The learned Magistrate, by the impugned order, has directed the Tractor bearing MYJ-5467 and the Trailer bearing MYJ-5468 to be given to the custody of the respondent Shivalingappa on his executing a bond in a sum of Rs. 25,000 and on condition that he should produce them before Court whenever required, and, that order he passed in the following circumstances : The respondent, it is undisputed, purchased the said Tractor and Trailer for a sum of Rs.60,000 and paid a sum of Rs.13,000 and for the balance he raised a loan of Rs. 47,000 from the primary Land Development Bank, Bijapur, by hypothecating the said Tractor and Trailer and on the security of his lands, and paid it. However, on 28-6-76 the petitioner Gurappa filed a complaint before the learned Magistrate against the respondent, inter alia alleging that on 17-10-1975 the respondent agreed to sell to him the said Tractor and Trailer for a sum of Rs.47,000 and executed an agreement of sale, that on the same day he paid a sum of Rs.2,000 to the respondent and on the next day i.e. 18-10-75 the respondent put him in possession of the said Tractor and Trailer, and that thereafter he paid a further sum of Rs.11.500 as per the terms of the said agreement both to the respondent and the Bank in all amounting to Rs.13,500, and despite the same to his surprise on 4-6-1976 the respondent dishonestly took away the Tractor and Trailerfrom Ganapath Chowk at Bijapur where they were stationed, without his knowledge or consent. On the basis of the allegations contained in the said complaint and the sworn statement of the petitioner the learned Magistrate registered a case for an offence under S.420 of IPC and directed issue of summons to the respondent. Then on the request made by the petitioner for issuing a search warrant, the learned Magistrate acceeded to his request and directed the concerned police to search the said Tractor and Trailer and produce them before Court. Pursuant thereto the police seized the Tractor and Trailer which were in the possession of the respondent and produced them before Court on 3-6-1976 and later the learned Magistrate delivered them to the police for safe custody. Then the petitioner moved the learned Magistrate with an application filed presumably under S 451 CrlPC to make an order in his favour for the interim custody of the Tractor and Trailer. It appears, while opposing that application the respondent too filed a similar application and sought for a similar order; what he contended was that the alleged agreement of sale is a sham and colourable transaction and in view of the provisions of S.32 of the Co-operative Societies Act and S.23 of the Indian Contract Act the said agreement is void and unenforceable and the petitioner had not acquired any right, title or interest in or over the said Tractor and Trailer and the same is not binding on him; he denied that he put the petitioner in possession of the Tractor and Trailer or that the petitioner paid a sum of Rs.13,500 in all as alleged. Regarding the R.C.Books and the receipts showing the purchases of oil and repairs to the said Tractor and Trailer, which the petitioner claim to be in possession, what the respondent contended was that he had given them to the petitioner so that he may pay taxes etc as he was looking after them on his behalf. Having considered the rival contentions the learned Magistrate took the view that it is just and proper to direct the Tractor and Trailer to be given to the custody of the respondent as according to him they were hypothecated to the said Bank and the respondent was required to repay the balance of the loan amount raised by him. What further weighed with the learned Magistrate while taking that view was the fact that the alleged agreement of sale was hit by the provisions of S.32 of the Co-operative Societies Act and S.23 of the Indian Contract Act. In the view he took he made the impugned order. The learned Sessions Judge before whom that order was challenged took the same view and confirmed that order and while doing so this is what he stated :

(3.) Sri K.A.Swami appearing for the petitioner while assailing the said two orders submitted that the Courts below were clearly in error in directing the Tractor and Trailer to be given to the custody of the respondent who is accused of an offence under Section 420 of IPC and against whom process is also issued for that offence. In other words, his argument was that in a case of this kind and in view of the provisions contained in S.451 CrPC. it was not open to the Courts below to make such an order in favour of a person who is himself an accused, and as such the said orders are illegal and are liable to be quashed, and in support of his submission he relied upon the following observations of this Court in B.S.Shyama v. P.K.Rajashekhar, 1968 1 MysLJ. 81.: