EICHER MOTORS LTD Vs. MOHAMMED YUSUF G NADAF

JUDGEMENT

(1.) THESE three applications under Section 482 of the Criminal Procedure Code can be conveniently disposed of by a single judgment as they involve identical facts and common questions of law and otherwise challenge the common order dated 23rd December, 1988 made by the J. M. F. C. , Panaji deciding three applications under Section 457 of the Criminal Procedure Code.

(2.) M/s. Eicher Motors Limited are the Manufacturers of light commercial vehicles known as Canter Mitsubishi having their factory at Pithampur in the District of Dhar, in Madhya Pradesh. M/s. Shiv and Shiva Earthmovers Pvt. Ltd. with its office at Panaji, Goa are the Authorised Representative of the aforementioned manufacturers on non-exclusive basis from the year 1985 within the State of Goa. One K. S. Rajashekar is the Managing Director of the said Authorised Representative. As Authorised Representative, M/s. Shiv and Shiva used to book orders for the vehicles manufactured by M/s. Eicher Motors Ltd. for short the Manufacturers, on certain terms and conditions. Proforma forms had to be filed while booking vehicles and the sales are effected ex-factory at Pithampur, M. P. so as to avoid local Sales Tax of the State of Goa. At the time of booking a sum of Rs. 25,000. 00 is to be paid and the balance amount later. Payments had to be made to the Manufacturers but all the transactions had to be through M/s. Shiv and Shiva. The first respondent in each of the petitions are purchasers of Canter Mitsubishi vehicles and booked through Authorised Representative. Each admittedly paid Rs. 25,000. 00 the hands of K. S. Rajashekar of M/s. Shiv and Shiva and which amounts were admittedly made over to the Manufacturers. However, subsequently the balance amount of the consideration nearly Rs. 1,97,000/- was also paid by each one of them. However, there is a small variation in the manner of payment. Whereas M/s. K. V. M. Products the first respondent in Cr. Misc. Application No 196/88 obtained a Bank Draft for the balance payment payable to M/s. Eicher Motors Ltd. , in other two cases Mahadev Shaha Gaonkar and Mohammed Yusuf Nadaf, the 1st respondents therein made payments of balance to M/s. Shiv and Shiva. It is equally common ground that one vehicle in favour of aforementioned M/s. K. V. M. Products came to be registered in their name pursuant to the sale letter and transfer form signed by M/s. Shiv and Shiva, whereas in the case of Mahadev Shaha Gaonkar and Mohammed Yusuf Nadaf the vehicles are transferred in their names in the R. T. O by one Nandkishore Volvoikar. This was done sometime in the first weak of November, 1988 and the vehicles were in their possession for quite sometime.

(3.) IT appears as the allegations now stand from the Manufacturer that M/s. Shiv and Shiva did not remit the sale proceeds for the balance amounts in respect of all the three vehicles in favour of the Manufacturers. On behalf of the Manufacturer an inquiry was made in Goa which revealed that the vehicles were not with M/s. Shiv and Shiva. After lapse of some time the Manufacturer learnt that the vehicles were already transferred to and in the names of the buyers but however the sale proceeds were retained by M/s. Shiv and Shiva and refusing to part with the same. The inquiry further revealed that the vehicles were transferred to and in the names of Mahadev Shaha Gaonkar and Mohammed Yusuf Nadaf by the sale letter and transfer form signed by Nandkishore Volvoikar in whose favour earlier M/s. Shiv and Shiva had transferred. Seeing that no money was forthcoming a complaint was lodged to the officer-in-charge of the Panaji Police Station at Panaji on 8th December, 1988 alleging offences of criminal misappropriation, criminal breach of trust and cheating. Soon thereafter the Panaji Police seized the vehicles. Before anything more happened an application under Section 457 of the Criminal Procedure Code was made on 9th Dec. , 1988 by the Manufacturer to the J. M. F. C. , Panaji, Goa. The Magistrate when directed the Police to submit their say the police however obliged the applicants by endorsing that there is no objection to release the vehicles as desired by the Manufacturer and accordingly the vehicles were released in favour of the Manufacturer on the executing a security bond for Rs. 1,00,000. 00 with a further condition that they shall produce the vehicles before the Court as and when necessary.