JASHWANTSINH PUNJABHAI PARMAR Vs. DOLATSINH SOMABHAI CHAUHAN

JUDGEMENT

(1.) This petition has been filed by the petitioner under Art 227 of the Constitution of India with a request set aside the judgment and order dated 23-6-1980 passed by the learned Sessions Judge Kaira in Criminal Revision Application no. 13 of 1980 and 22 of 1980 by which he set aside the order of the learned Judicial Magistrate First Class Umreth dated 10-1-1980 in Criminal Miscellaneous Application no. 20 of 1979. By that order the learned Magistrate had ordered that tractor bearing no. G.T.M. 6463 involved in the dispute between the parties be handed over to the present petitioner.

(2.) In order to appreciate the dispute it will be worthwhile to refer to the facts. On 18-7-1979 the petitioner lodged a complaint in the Court of the learned Judicial Magistrate First Class Umreth against the present respondent no. 1 for the offence punishable under sec. 420 of the Indian Penal Code on the allegation that the petitioner was cheated by respondent no. 1 Dolatsinh Somabhai Chauhan so far as the transaction of the tractor was concerned. It should be noted that respondent no. 1 had agreed to sell the tractor to the petitioner and that tractor was hypothecated by the respondent no. 1 to the State Bank of India. It was agreed between the parties i.e. the petitioner and respondent no. 1 that the tractor in question was to be sold to the petitioner for Rs. 22 551 and accordingly it is the allegation that the petitioner paid Rs. 10 0 as earnest money and then deposited Rs. 14 509 the Bank. But ultimately respondent no. 1 decided to sell the said tractor to one Patel Arvindbhai Ishwarbhai of Dholka (present respondent no. 2) and therefore a criminal complaint was filed by the petitioner.

(3.) The learned Magistrate before whom the complaint was filed instead of issuing the process against respondent no. 1 registered the complaint as Criminal Miscellaneous Application no. 60 of 1979 and sent the same for investigation to the Police Sub Inspector Umreth under sec. 156 (3) of the Code of Criminal Procedure 1973 (hereinafter referred to as the code). The Investigating Officer registered the same as Crime no. 20 of 1979 and seized the tractor in question on 31-7-1979. On 1-8-1979 one Vajesinh Mohansinh on behalf of the petitioner filed an application Ex. 3 for the custody of the tractor to be handed over to the petitioner. In view of this the learned Magistrate directed the P.S.I. to submit his report. On the same day respondent no. 2 filed application Ex. 4 and requested the Court to hand over the tractor in question to him. It was his case that Dolatsinh respondent no. 1 had sold that tractor to him on 17 for Rs. 23 500 and that the (respondent no. 2) got the said tractor transferred in his name in the records of the Regional Transport Authority and therefore the ownership rights are transferred in his favour. Then by Ex. 12 on 17-7-1979 respondent no. 1 moved the Court to hand over the tractor to him as he was the rightful owner. The learned Magistrate after hearing the parties ordered to hand over the possession of the tractor in question to the petitioner by taking a security of Rs. 10 0 from him with a direction to produce the tractor whenever required by the Court. Apparently this is an order passed by the learned Magistrate under sec. 451 of the Code.