NOORKHAN JAFARKHAN Vs. SK JAKEER SK AKBAR

JUDGEMENT

(1.) HEARD learned Counsel for the applicant and respondent No. 1, who are genuinely contesting parties. Shri Naik, learned A. P. P. , has supported the arguments of respondent No. 1, being the original owner and consequently prayed for upholding the impugned order.

(2.) RULE. By consent. Rule is made returnable forthwith.

(3.) ORDER passed by the learned II Judicial Magistrate, F. C. , Nanded on 21-11-2002 directing return of Vehicle No. MH-21/3445 by applicant in favour of respondent No. 1 is being challenged by present application under section 482 of the Criminal Procedure Code, 1973 (Cri. P. C.) read with Article 227 of the Constitution of India. Admittedly respondent No. 1 (Sk. Jakeer) is the owner of the vehicle in question. It is claim of applicant (Noorkhan) that by an agreement of sale executed on 11-9-2000 respondent No. 1 agreed to sell the vehicle to him for consideration of Rs. 4,11,786/- by accepting the part consideration of Rs. 1,55,483/- and it was agreed that the balance consideration would be satisfied by applicant by paying the remaining bank instalments of the loan obtained by respondent No. 1 for the purpose of purchasing the said vehicle. It is claim of applicant that he apprehended of some other customer having approached respondent No. 1 by offering higher price and therefore, he filed the regular Civil Suit No. 424 of 2001 for injunction restraining respondent No. 1 from taking custody of vehicle from the applicant. On 4-7-2001, applicant was successful in obtaining ad interim ex parte injunction. After respondent No. 1 appeared, upon hearing both the parties, learned Civil Judge, Nanded was pleased to vacate the injunction by order dated 27-8-2002. On or around 25-1-2002, applicant had filed a complaint about theft of the vehicle and during the course of investigation of that complaint, the vehicle was seized by police, admittedly from custody of respondent No. 1; on 7-1-2002. Both, applicant and respondent No. 1, moved Judicial Magistrate, (F. C.), with applications for custody of the vehicle. Both the applications were heard together and decided by common order dated 14-2-2002. The operative part of the order may usefully be referred herein below.