NIRANJAN SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner in this revision challenges the order dated 2.7.2005 passed in Criminal Trial No.73 of 2005 by learned S.D.J.M., Athmallik rejecting the prayer of the petitioner made under Section 457, Cr.P.C. for release of a Bajaj Boxer Motorcycle bearing Registration No.OR -19 -A -5187 seized in connection with the above noted criminal trial.

(2.) THE relevant facts are as follows : Opposite party No.2 lodged an F.I.R. before the O.I.C. Athmallik Police Station alleging therein that the petitioner was working as Project Coordinator in an N.G.O. namely, VARD and as the Director of that N.G.O., he had given the above noted motorcycle and cash of Rs.5,000/ - to the petitioner to look after the coordination work of the N.G.O., but the petitioner committed criminal breach of trust and fled away with the motorcycle, cash and some documents of the N.G.O. Basing on this report Athmallik P.S. Case No.11 of 2005 under Section 406, I.P.C. was registered. During investigation of that case the aforesaid motorcycle was seized from the possession of the petitioner. The petitioner then filed an application under Section 457, Cr.P.C. praying for release of the seized motorcycle in his favour on the plea that he had purchased the motorcycle from opposite party No.2 by paying Rs.20,000/ - and being the owner in possession, he is entitled to possession of the vehicle. Opposite party No.2 also filed a petition under Section 457, Cr.P.C. claiming release of the motorcycle in his favour on the plea that he is the registered owner of the motorcycle and that the petitioner had not purchased the motorcycle, but had entered into an agreement that an amount of Rs.20,000/ - in the shape of monthly instalment of Rs.1,000/ - which would be deducted from his salary and on payment of such amount he would become the owner of the motorcycle. Opposite party No.2 alleged that without paying any such instalment the petitioner fled away with the motorcycle, cash and documents of the N.G.O. Learned S.D.J.M., Athamallik heard both the petitions together and by the common order dated 2.7.2005 rejected the prayer of the petitioner and allowed the prayer of opposite party No.2 and directed release of the seized vehicle in favour of opposite party No.2 on the later furnishing a property security of Rs.50,000/ - along with an indemnity bond indicating that he shall keep the vehicle in running condition, shall not sell or dispose of the vehicle pending disposal of the C.T. Case and shall produce the vehicle before the I.O. and Court, as and when required for the purpose of investigation, inquiry or trial. That order is under challenge in this revision.

(3.) MR . A. K. Mishra, learned Standing Counsel appearing for opposite party No.1 and Mr. G. K. Mohanty, learned counsel appearing for opposite party No.2 on the other hand contend that admittedly the seized motorcycle had been purchased by opposite party No.2 by obtaining loan from ICICI Bank and the Registration documents of the vehicle even today stand in the name of opposite party No.2 and he had given the motorcycle to the petitioner when the petitioner was working in the N.G.O. under him. Learned counsels submit that the agreement dated 17.7.2004 clearly reveals that the petitioner had not paid the required instalments and the loan amount of the Bank was still outstanding and for that reason the petitioner was never the person entitled to possession of the vehicle. Learned Counsels support the impugned order and further contend that the present revision is not maintainable as an order rejecting prayer for release of vehicle under Section 457 of the Cr.P.C. is an interlocutory order. In support of their stand, learned Standing Counsel cited the cases of Balaram Nayak v. Bijaya Kumar Nayak (supra) and Mr. Mohanty cited the cases of Chandra Sekhar Misra v. Smt. Pravat Nalini Misra and others, 53 (1982) C.L.T. 240; Mahavir Guru v. Himansu Guru and 2 others, 68 (1989) C.L.T. 213 and the case of Debendra Kumar Nayak v. Abdul Rahaman Khan and others, 60 (1985) C.L.T. 72.