MAFFIZUL RAHAMAN Vs. STATE

JUDGEMENT

(1.) IN this revisional petition, an order dated September 27, 1995 passed by Shri P.K. Sarkar, Sub -Divisional Judicial Magistrate, Tamluk, District Midnapure in G.R. Case No. 543 of 1995 arising out of Tamluk P.S. Case No. 175 of 1995 dated 20.8.95 has been challenged. The police case has been registered for the offences under Sections 420/379/120 (B)/34 of the Cr.P.C. and it involves the custody of a bus bearing No. WGB 6774 by the impugned order.

(2.) THE contextual facts depict that soon after the institution of the aforesaid police case, the police seized the bus -in -question from Srirampore during the investigation. Soon thereafter. the petitioner and the O.P. No. 3 put rival claim for custody and release of the bus in their favour. By the impugned order dated 27.9.95 the S.D.J.M., Tamluk, however directed the bus to be released in favour of the O.P. No. 3 i.e. Kartik Ch. Samanta. Being aggrieved by this order, the petitioner, Maffizul Rahaman, filed the instant revisional petition and, thereupon, a stay of the impugned order was granted by an order dated 22.2.96 of this Court. Subsequently on a petition filed by the petitioner for release of the bus, this Court (with S.K. Tiwari, J.) by an order dated 12.12.96 set aside the impugned order of the S.D.J.M. and directed to release the bus in favour of the petitioner, Maffizul Rahman. The O.P. No. 3, Kartik Ch. Samanta thereafter moved the Supreme Court, which, by an order dated 9.5.97 passed in Criminal Appeal No. 558 of 1997 set aside the above order of this Court, considering it as to be an ex parte order, and directed this Court to hear the application after due notice to both the parties but, at the same time, it was father observed that if the order dated 12.12.96 of this Court has been given effect to, the status quo in respect of the custody of the bus shall be maintained till the disposal of the instant revisional petition. It may be added here that the bus -in -question had already been released in favour of the petitioner, Maffizul Rahaman, and, accordingly, the status quo as such, was still continuing with respect to the custody of the bus. The matter, thereupon, again came before this Court (with Vidyanand, J.) on 10.9.97 when this revisional petition was again disposed of with directions in terms of certain settlements between the parties said to have been then consented before this Court. As per this agreed order between the parties, the O.P. No. 3, Kartik Ch. Samanta was to pay a sum of Rs. 1,32,720/ - to the petitioner, Maffizul Rahaman, who on his turn was to hand over the bus to the O.P. No. 3 in running condition. Before this agreed order was acted upon, there was submission made on behalf of the petitioner, Maffizul Rahaman that in fact, there was no agreement made between the parties and that, under some misunderstanding the order dated 10.9.97 was passed, the implication of which could not be understood at the time when it was made. In a circumstance like that, this Court (with Vidyanan", J.) recalled the order dated 10.9.97 and, ultimately, the matter was assigned to this Bench.

(3.) UPON hearing the Ld. Counsel for the parties as also on looking into the records I do find certain facts quite un controverted and those were the admitted hard facts in the contentions raised from the either side. Those facts were as follows : The bus -in -question was actually purchased by the petitioner, Maffizul Rahaman for a consideration of certain amount on being partly financed to the extent of Rs. 2,40,000/ - by Contai Cooperative Bank, Durgachawk Branch, Midnapore and he was, accordingly, the registered owner of the bus. Thereafter, the petitioner, Maffizul Rahaman, and the O.P. No. 3 entered into an agreement for sale of the bus at a consideration of Rs. 3,39, 000/ - as per a written agreement wherein certain terms and regulations were incorporated. As per the terms, the purchaser, O.P.No. 3, Kartik Ch. Samanta was to liquidate the loan of the Bank on payment of the required instalments within time schedule and also to pay a sum of Rs. 1,32,720/ - in cash or the Bank Draft in two instalments directly to the petitioner, Maffizul Rahaman. The Bank debt over the vehicle is said to have been liquidated by the O.P. No. 3, Kartik Ch. Samanta with the only controversy between the parties whether there was payment of the instalments in time and whether there was some additional liability incurred by the either side to be paid to the bank. There was, of course, no controversy on the point that so far the balance of the consideration money being Rs. 1,32,720/ - was concerned, there was no payment made by the O.P. No. 3, Kartik Ch. Samanta in favour of the petitioner, Maffizul Rahaman.