RAMRAJ CHOUDHURY Vs. RAM UJAGER CHOUDHURY

JUDGEMENT

(1.) This revisional application is directed against an order dated 30th May, 1984 passed by the 13th Additional Sessions Judge. Alipore in Criminal Motion No. 51 of 1984.

(2.) Admittedly Lorry No. WMK 1929 belonged to the respondent No. 1. Ram Ujager. He lodged a complaint in the court of the S.D.J.M., Barrackpore under section 406/420, I.P.C. alleging that he had handed over the Lorry and all documents to the present petitioner, his own uncle in pursuance of a contract under the terms of which the latter would ply the lorry and pay Rs. 3,000.00 p.m. to him in lieu thereof and that the petitioner neither paid him any money and refused to return the lorry. It appears that incourse of investigation the lorry was seized and both the parties prayed for its possession. On a consideration of the circumstances of the case Shri D.K. Nayak, learned S.D.J.M., Barrackpore released the vehicle in favour of the present petitioner. The respondent preferred Criminal Motion No. 51 of 1984 in the court of the Sessions Judge, Alipore against this order. On a consideration of all the circumstances Shri B.K. Dutta, Additional Sessions Judge, 13th Court, Alipore by his order dated 30.5.84 has set aside the order passed by the learned S.D., J.M. and directed that the vehicle be placed in the custody of the respondent. Hence this revisional application before this court, from the side of the petitioner.

(3.) Before the learned S.D.J.M. the case of the petitioner was that in the terms of an agreement of sale, of the vehicle in question he paid Rs. 60,000.00 to the respondent -Rs. 40,000.00 on 7.8.82 and the balance of Rs. 20,000.00 on 12.1.83 - in consideration of which the vehicle in question was handed over to him by the respondent who also sent a sale intimation to the Public Vehicles Department by a letter dated 13.1.83. It appears that he holds receipts against the aforementioned payments containing allegedly the signature of the respondent, the genuineness of which however, has been denied by the respondent. It appears that the learned S.D.J.M. placed his relience upon Sarder Singh Vs. Messrs Swastik Financial Corporation, (1964)2 Cr LJ 292 which was a case under section 516-A of the old Cr. P. C. which has been re-numbered as section 451 of the new Crimial P.C. In this decision following Brojendra Vs. K.S. Sama, 35 Cal WN 198 : AIR 1931 Cal 455 and Nally Swami Reddy Vs. Nallammal, AIR 1943 Mad 392 , it has been held by a Division Bench of the Honourable Patna High Court that it is only just and proper that the person who is in actual possession of a property at the time when a case is started and not the person who has title to it, must get it for the duration of the enquiry or trial - provided he did not obtain possession of the property by violance or deceit in which case the property must be returned to the person subjected to deceit or violance. It was observed in this judgment that the certificate of registration and road permits have a presumption that the holder thereof was in possession of the vehicle. The present petitioner being admittedly in possession of the vehicle at the time it was seized by the Investigating Officer, the learned S.D.J.M. released the vehicle in his favour following the decision of the Honourable Patna High Court.