DILIP KUMAR DAS Vs. STATE

JUDGEMENT

(1.) This petition has been filed under Sec. 482, Crimial P.C. praying that the bus as detailed in the petition and seized under the orders of the A.C. M.M.T., Kanpur Nagar, be directed to be released in favour of the applicant.

(2.) The facts of the case, as appear from the material placed on the record, are that opposite party No. 2 Satnam Singh filed a complaint in the court of the Magistrate concerned, naming two persons as accused. He alleged that he was dealing in the business of hire purchase of automobiles. The accused persons approached the complainant on 28.3.1983 and requested him to give the vehicle on lease. The terms of lease were settled between the parties and the accused persons were to pay Rs. 12,000.00 per month to the complainant and it was also agreed that they will use the vehicle as Bailee and Trustee on behalf of the complainant. A deed was executed between the parties and in accordance with the agreement the complainant entrusted Bus No. URU 5428 to the accused persons. The accused persons, however, stopped paying the monthly hire and dishonestly disposed off the vehicle to one Dilip Kumar, resident of Howrah (West Bengal) for Rs. 2,50,000.00 It was further asserted that the registration number of the vehicle has also been changed as WBR 2732., The complainant asserted that the accused persons have cheated him and have also mis-appropriated the vehicle. The Magistrate concerned issued a warrant for search and seizure in respect of the vehicle. The vehicle was actually seized by the police in West Bengal. The present applicant, there after, moved an application for release of the vehicle in his favour on the ground that he had purchased the vehicle and the registration of the same was in his name. The learned Magistrate by his order dated 18.4.90 rejected the application observing that as the matter relates to the commission of fraud and that the applicant has not produced any receipt about payment of money or any sale letter, the bus cannot be released in his favour merely because he is a registered owner.

(3.) In his petition the petitioner has asserted that the Automobiles Financing Corporation, which is a Financing Corporation of Kanpur, had financed the bus having registered No. BHZ 28 in the name of opposite party No. 2. The opposite party No. 2 along with his other family members are partners of the said firm. The applicant was approached by Satnam Singh for selling the vehicle and for this purpose the applicant entered into a hire purchase agreement with one Jain Finance Corporation, Calcutta. During the time when the applicant was negotiating with Satnam Singh for purchase of the Bus, the applicant received a letter from Automobiles Financing Corporation dated 31.3.86 disclosing therein that the Bus sought to be purchased by the applicant was under a hire purchase agreement with it and a sum of Rs. 1,50,000.00 should be paid to it so that it could issue necessary documents. In pursuance of this letter the applicant obtained a loan from Jain Finance Corporation and paid the amount of Rs. 1,50,000.00 by demand draft. The Automobiles Financing Corporation and Satnam Singh issued necessary papers for transfer of the vehicle and it was transferred in the name of the applicant showing Jain Financing Corporation as the Financier. The registered number of the Bus was changed from BHZ 28 to WBR 2732. In terms of the agreement with the Jain Finance Corporation the applicant deposited the monthly dues. Thereafter Jain Finance. Corporation issued a letter to the registration authority intimating that they had received the full payment and consequently their name was collected from the registration certificate. The applicant has further asserted that he is the sole owner of the vehicle which is registered in his name. The complaint filed by the opposite party No. 2, Satnam Singh was false. The Bus was liable to be released in favour of the complainant. The applicant filed his affidavit and copied of certain documents in support of his allegation. The opposite party No. 2 has filed counter affidavit denying the allegations made by the applicant. He has asserted that there was no agreement between him and the applicant nor the Bus was over transferred by him to the applicant. He has asserted that the bus in question belongs to him and the same is registered in his name and he is the registered owner of it which has bearing number URU 5428. It was financed by the Bank of Baroda, New Delhi. The entire payment was made by him to the Bank of Baroda. It was thereafter leased to accused Bharat Singh under the lease agreement dated 28.3.83. A true copy of the said agreement has been filed along with the affidavit. The opposite party No. 2 further asserted that in term of the lease agreement the accused persons wrongfully and fraudulently transferred the bus to the applicant who got the registration number of the bus changed. The opposite party No. 2 has also asserted that he was in no way concerned with Automobiles Financing Corporation, Kanpur nor the bus was ever financed by the firm. It was also asserted that the applicant has no right, title or interest in the bus in question and the learned Magistrate was correct in rejecting the application for release of the bus moved by the applicant. The applicant has filed rejoinder affidavit in reply to the counter affidavit by the opposite party No. 2.