K T ABRAHAM Vs. P J VERGESE

JUDGEMENT

(1.) THE short question involved in this revision relates to the correctness of the order dated 27.5.1981 in Criminal Appeal No. 53/53K -80 of the appellate Court directing the property in question, a tyre retrading machine, to be returned to the opposite party.

(2.) G . R. Case No. 473/1977 (T. C. No. 173/78) was initiated against the opposite party on the information lodged by the petitioner. The allegations made by the petitioner were that he purchased a tyre retrading machine and leased it out with its accessories to the opposite party on a monthly tent of Rs. 1,000/ - on 17. 2. 1974 for a period of three years i. e., till 16. 2. 1977. Subsequently, the period of lease was reduced to two years i. e., till 16. 2. 1976, by a supplementary agreement. The opposite party paid rent upto 17. 2. 1975 in accordance with the terms of the agreement and stopped payment thereafter. After expiry of the lease period the petitioner approached the opposite party to hand over the machine and its accessories but the latter did not do so. On getting the information that the opposite party was negotiating with others for sale of the machine, the petitioner lodged information with the Police as stated above. The opposite party faced trial on a charge under Sec, 406, Indian Penal Code. The trial Court on consideration of the evidence on record came to hold that the petitioner is the owner of the machine and the same was entrusted by him to the opposite patty. He acquitted the opposite party of the charge under Sec. 406, Indian Penal Code, taking the view that the machine was not a movable property at the time of lodging of the case. The Court observed that when the machine was seized from the place of installation it was affixed to the cement floor with bolts and nuts. The trial Court while passing the judgment directed that the machine be returned to the petitioner since he is admittedly the owner of the property. On appeal by the opposite party, the appellate Court reversed the order of the trial Court relating to the property and directed the property to be returned to the opposite party on his entering into a bond of Rs. 1,500/ - to the satisfaction of the Subdivisional Judicial Magistrate. This order of the appellate Court is impugned in this revision petition. On a perusal of the order of the appellate Court it appears that the consideration that weighed with the Court was that the machine was seized from the possession of the accused -opposite party. The appellate Court has not reversed the finding of the trial Court that the petitioner is the owner of the property in question. He has not taken into consideration the fact that the teems stipulated in the agreement between the parties has expired since February, 1976 sod that the parties who are related to each other (the wife of the petitioner is the sister of the opposite party) were jointly doing business prior to 1975 when the petitioner started his independent business in the same premises where the machine was installed and the said position continued till the initiation of the criminal proceeding, In these circumstances, thought the machine was shown in the seizure list to have been seized from the custody of the opposite party, it could ha said to be in his exclusive possession,

(3.) IN the result, the revision petition succeeds and the same is allowed. The order of the appellate Court is set aside and that of the trial Court is restored.