(1.) THE question of disposal of motor track after conclusion of the trial is involved in this revision. A truck bearing registration No. BYY 7071 was owned by non-applicant Onkarmal Dwarkadas. He entered into an agreement to sell the said truck for Rs. 23,500/- to the present applicants. A document came to be executed on 2-12-1974. As a part of consideration Rs. 4,000/- were paid to the owner by the applicants. It is stated that on the same date, the truck was given in possession of the applicants for its use. However, the owner Onkarmal filed a complaint alleging that his truck was forcibly taken by the accused on 26-4-1976 from Chikhli and therefore a prosecution was started against the applicants in the trial Court on a police report. After recording the evidence, the trial Court found that the accused have not committed any offence. The accused were said to be in possession of the truck on the basis of the agreement dated 2-12-1974. It is after the conclusion of the trial while passing the order of disposal of property that the learned Magistrate held that the said truck has now been in possession of the complainant, as per the interim order of the Court during the pendency of the prosecution is entitled to retain possession as he has not received the price of it from the accused persons. However, the trial Court observed that the proper remedy for the accused is to claim back the amount paid to the complainant by approaching the civil court. Ultimately, the trial Court allowed the possession of complainant Onkarmal as regards the aforesaid truck.
(2.) THE accused preferred an appeal in the Sessions Court. The finding of the trial Court regarding the disposal of the property was maintained by the Sessions Judge. In his order, the learned Sessions Judge has taken the view that the complainant is entitled to possess the property as the vehicle stands registered in his name in the records of registering authority. The Sessions Judge confirmed the order of the trial Court on the basis of the proposition of law that even though the accused are acquitted, the motor vehicle should be given to the person who is the owner of the property. The normal rule of retaining the property to the person who possessed it at the time of its seizure has been departed in view of the fact that the property in question is a motor vehicle. While taking this view, the learned Sessions Judge relied on two decisions (1) Issac Samuel v. State of Kerala and Anr. and (2) Nandiram v. State of Gujarat and Ors. . The Gujarat High Court in Nandiram's case has taken the view that:
(3.) IN the instant case, the discretion which a Magistrate has Under Section 452 Cr.P.C. cannot be said to have been exercised judicially. The facts of this case show that in the agreement Exhibit 87 dated 2-12-1974 it was stipulated between the parties that the balance amount of the price of the truck was to be paid in monthly instalments by the accused persons at the rate of Rs. 1500/- per month from 7-12-1974. But the accused persons defaulted in payment of the balance amount and has not placed on record anything to show that they have paid the entire consideration as stated in Exhibit 87. There is on record the certificate of registration of the aforesaid truck issued by the R.T.O., Amravati. The truck was shown in the name of Surajmal Hurmal. Thereafter, the said truck came to be transferred in the name of Sitabai w/o Onkarmal Chamedia the present non-applicant on 1-4-1974. The entry is accordingly made in the registration certificate. Then, on 6-6-1974, the said truck came to be transferred in the name of M.P. Industrial Commercial Corporation Pvt. Ltd. That is the last entry showing the ownership of the truck. The road tax of the said truck also appears have been paid. The certificate of registration in respect of the truck in question was never shown in the name of the applicant. Thus, it is clear that the ownership of the truck never passed in favour of the applicants on the basis of Exhibit 87 the agreement in question. The appellate Court has also stated in the order that the M.P. Industrial Commercial Corporation Pvt. Ltd. which is shows as the owner of the truck, possessed it and sold it to the complainant on 2-3-1976. The other documents establish the fact that the complainant purchased and possessed the said truck on 2-3-1976 .The documentary evidence on this point remains unchallenged. Thus, except the alleged possession by the applicants, there is no documentary evidence on record to show that they owned the truck and therefore, were entitled for its disposal in their favour.