KAMALUDDIN Vs. ABDUL SALIM

JUDGEMENT

(1.) THE controversy between the parties in this case centres round an Ambassador car K. L. V. 1303 which has been seized by the police on the complaint filed by one Abdul Salim alleging that an offence has been committed in respect of it by the accused, T. A. Kamaluddin, from whose possession it was seized. THE learned District Magistrate, on a consideration of the claims of the complainant and the accused has under S. 523 Cr. P. C. ordered the disbursement of the car to the complainant on security. THE accused has come up in revision. THE law on the point as thrashed out by the decisions of the various High Courts may be stated as follows;- "under S. 523 what the Magistrate has to consider, is who is entitled to the possession of property which has been seized by the police. Where it is proved that the person from whose possession the property was seized came by it dishonestly, the Magistrate may have to consider questions of title in order to determine the best right to possession. But where it appears that the police have seized property from a person who is not shown to have committed any offence in relation to that property, then the magistrate can only hold that that person is entitled to possession of the property. If another claims the property, his remedy is in a civil court and the burden will be upon him to prove his title, " (vide Rajamal v. Balmukund AIR, 1936 Bom. 171) More or less to the same effect is the pronouncement made by a Division Bench of the Allahabad High Court in Bux Singh v. State (AIR. 1956 All. 199 ). THE learned judges observed: "the words of the section are very clear and they specifically mention that the property should be delivered to a person who is entitled to its possession and not to a person who owns it. Where property is recovered from the possession of a person, a court for the purpose of an order under S. 523 must hold that he is entitled to its possession. It is only in certain circumstances that the property recovered from the possession of a person may be handed over to some other person, such as when the person from whose possession the property is recovered denies that it was recovered from his possession (such a situation might arise in those cases where some stolen property is recovered and the plea of the person from whose possession it is recovered is that it was planted) or where the property is recovered from the possession of a person, but this possession has been acquired either in a dishonest or unlawful manner, or where the person from whose possession the property is seized alleges that he is only in temporary custody of this property and it belongs to some one else. "

(2.) THE car in dispute was purchased by one Vasumathi under a hire purchase agreement with the Commercial Credit Corporation (P) Ltd. for Rs. 20,724-93, and it was taken delivery of by Vasumathi on 18-12-68. On the succeeding day Vasumathi, the registered owner sold the car to Ramla Beevi, authorising Ramla Beevi to pay the balance instalments due to the Commercial credit Corporation and get the registry transferred in her name. Ramla Beevi, thereafter, sold the car to her brother, the complainant, for Rs, 15,000/- and asking him to pay the balance due to the Corporation and get the registration transferred within two years from 1912 68. THE complainant's further case is that the car was put in the possession of the accused on 15 71969 for his use as he had to go to his office, (He is a post-graduate working in the Language institute, Trivandrum), on the definite understanding that it would be returned whenever demanded. But the accused in violation of the agreement hypothecated the car with M/s Krishnalal Bandhari, a financier of Madras forging Vasumathi's signature with the dishonest intention of misappropriating the car. THE complaint was, therefore, filed under S. 506, 419, 420, 465, 468 and 471 IPC. THE complaint was forwarded to the Police by the learned Magistrate under s. 156 (3) M. P. 1425/71 praying for me release of the car to him, while the accused filed Cr. M. P. 1547/71 praying for the disbursement of the car to him. THE court at first passed an order purporting to be one under s. 516a directing the entrustment of the car on'moonnamsthanam' but that order was vacated by this court in Cr. R P. 428/71 saying trial the proper section under which the Magistrate should have taken action was not S. 516-A but S. 523 of the Code and which that direction the matter was sent back. Now the learned district Magistrate after an enquiry has pissed order directing the release of the car to the complainant.

(3.) THE order of the learned Magistrate is hence set aside, and the car is directed to be released to the petitioner accused on his entering into a bond for Rs. 20,000/-with two solvent sureties each for a like sum to the satisfaction of the learned Magistrate and will also undertake to take proper care of the car and produce it in court whenever required. . .