RANKANATH PRADHARN Vs. RATIKANTA MOHAPATRA AND ORS.

JUDGEMENT

(1.) THE Petitioner has approached this Court against the dismissal of his complaint against the opposite parties who are respectively the Manager, the Driver and the Recovery Officer of the Andhra Bank at Balugaon. Admittedly the Petitioner had purchased a Trekker with finance from the Andhra Bank. It is his case that because of allegations of default in payment of the Bank's dues the vehicle was seized by the Bank's officers from near a petrol pump for which he filed the complaint against the opposite parties under Sections 379/323/294, I.P.C. During the pendency of the complaint before the Magistrate he filed a petition under Section 94, Code of Criminal Procedure in pursuance of which the vehicle was seized from the possession of the opposite parties and was produced before the Court. On application being filed by the opposite parties the vehicle was directed to released in their favour which order was challenged by the Petitioner before this Court in Criminal Revision No. 288/86 since disposed of on 20 -4 -1990 upholding the order of the learned Magistrate. On 12 -8 -1986 the learned Magistrate passed order on perusal of the complaint petition, initial statement of the complainant as also the evidence adduced by him that he was not satisfied about the truth of the allegations made in the complaint and no prima facie case under Section 379, I.P.C. had been made out. Since the vehicle had been seized as per the deed of agreement, he dismissed the complaint under Section 203, Code of Criminal Procedure and further ordered that as the vehicle had been seized by the Bank under proper authority prior to the filing of the complaint and since the Petitioner had failed to pay the dues in respect of the hypothecated vehicle, it was just and proper that the vehicle should be released in favour of the Barik and accordingly released the vehicle in favour of the opposite parties.

(2.) MR . Mohanty, learned Counsel for the Petitioner assails the order saying that in law he is the owner of the vehicle and the Bank having taken away possession of the same it must be held that a case under Section 379, I.P.C. was made out and the complaint therefore could not have been dismissed. It is his further submission that since the complaint had been filed also in respect of offences under Sections 323 and 294 I.P.C. but the learned magistrate did not state anything about the offences under those sections, the dismissal of the complaint in to was illegal. It is his last submission that even if the complaint is dismissed, yet he being the owner of the vehicle under the provisions of the Motor Vehicles Act, it should have been directed to be released in his favour.

(3.) SINCE the complaint under section 379, I.P.C. was not itself maintainable the learned Magistrate was also right in releasing the vehicle in favour of the bank as the seizure of the vehicle had occurred prior to the complaint before the Court. As a matter of fact, even during the pendency of the case the release of the vehicle in favour of the bank as ordered by the learned Magistrate was upheld by this Court in criminal Revision No. 288 of 1986 (supra) on a discussion of the case law on the subject. It is the submission of Mr. Mohanty that such decision in the Criminal, Revision arose out of a proceeding regarding the interim custody of the vehicle and would not have any application as regards final orders to be passed on dismissal of the complaint. Such submission is wholly misconceived since once it is held that the release of the vehicle in favour of the opposite parties was legal and proper and that the bank bad the right to seize the vehicle on account of default of the Petitioner to pay the installment duly the only order that could have been passed regarding disposal of the property was to release it in favour of the opposite parties. This submission of Mr. Mohanty must also accordingly be negatived.