S KAPUR Vs. BHALCHANDRA G NAIK

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution of India and under section 482 of Criminal Procedure Code the applicant seeks to get the order made by Judicial Magistrate First Class, Mapusa, dated 15th January, 1985 granting possession of a Motor Vehicle bearing No. MWU 2789 to the respondent No. 2 quashed and set aside. By that order the Judicial Magistrate, First Class directed the applicant to produce the said truck before the Court within 10 days from the date of the order and hand it over to the respondent No. 2.

(2.) When this matter came for admission, rule was granted and status quo was ordered.

(3.) From the stances taken by the parties it would be convenient to state facts. On 11th June, 1984 the applicant through his representative filed a complaint against the first respondent at the Mapusa Police Station that respondent No. 1 had removed the truck unlawfully and committed theft of the same. Hence the F.I.R. disclosed an offence under section 379 of Indian Penal Code. It is averred in the petition that the applicant is a proprietor of Yesh Constructions, Bombay and as such the owner of that truck bearing No. MWU 2789, that the respondent No. 1 after introducing himself through one Mr. M.D. Shah, a finance broker of Bombay, representing that he is the Managing Director of M/s. Dahej Minerals Ltd., owning mining concessions in Goa. For that matter some documents were shown which were in Portuguese purporting to be the concessions in relation to mines and that on account of some litigations the respondent No. 1 was in financial difficulties. It is then averred that from time to time large sums of money were given by the applicant to the first respondent totalling to Rs. 1,30,000/-; next on 17th November, 1983 the first respondent also requested the petitioner to give him the said truck on hire basis for the purposes of mining operations and believing in the representations made the petitioner gave his truck to M/s. Dahej Minerals Ltd. for one month only. No hire charges were paid nor the truck was returned and on 13th February, 1984 the first respondent informed the petitioner that the truck had met with an accident and the same has been removed to the garage for repairs. The some time in March 1984, the first respondent alongwith said M.D. Shah met the petitioner and made further representations that all legal battles concerning mining concessions have been decided in favour of the first respondent; that said M.D. Shah also represented that he is arranging an interest free deposit of Rs. 20 lakhs and once that is done the applicant would be paid of whatever advances made to respondent No. 1 as also the price of the said truck. The petitioner then mentions that accordingly an agreement was signed on 2nd April, 1984; that said M.D. Shah could not arrange the finance for the first respondent and, therefore, the first respondent failed to pay whatever advances he had received as also the price of the said truck. It is then averred that the applicant came to know that respondent No. 1 was not a trustworthy person and that M/s. Dahej Minerals Ltd.; was only a hoax as in the meantime the respondent No. 1 sent a letter dated 30th April, 1984. In the meantime the owner of Standard Garage, Porvorim, where the truck was being repaired, was contacted by the petitioners representative and on showing him the ownership documents of registration requested the said garage owner not to hand over the truck to anybody or to the respondent No. 1; that when the petitioners representative visited the said garage for taking delivery the said truck was missing from the garage and the garage owner told him that the first respondent had removed the truck on 12th May, 1984 in his absence without his knowledge. Accordingly, F.I.R. was lodged on 11th June, 1984 that there was a theft in respect of the said truck.