MAHOMMED ZARIFF Vs. SK ZINAULLAH

JUDGEMENT

(1.) In this revision under S.482 of the Cri. P.C. read with S.401 thereof, the petitioners seek the quashing of an order passed by the Sessions Judge, Puri, directing release of a truck to the opposite party, reversing the direction of the Magistrate releasing the truck in favour of petitioner No.1.

(2.) Truck bearing registration number OSP.3707 belonged to the opposite party. He purchased the same after obtaining financial assistance from the State Bank of India, City Branch, Cuttack. He entered into an agreement with the petitioners on 15-1-1981 for sale of the truck. Consideration for the sale was fixed at Rs.1,70,000/-. The dues of the State Bank of India were to be included in the amount of consideration fixed. The arrangement was that after payment of the dues of the Bank, the opposite party would receive Rs.82,000/-, out of which he was paid Rs.20,000/- in cash that day and possession of the vehicle in running condition was delivered to the petitioners. It was stipulated that on and from the date of agreement the petitioners would be the owners of the vehicle and exercise their right as such owners. Pursuant to the agreement, the petitioners paid Rs.5,000/- in February, 1981. On 17-7-1981 an F.I.R. was lodged at the Saheednagar Police Station in the District of Puri by the opposite party alleging commission of criminal breach of trust punishable under S.408 of the Indian Penal Code. It was alleged that though under the agreement the petitioners were to pay Rs.62,000/- by 31-3-1981, they paid a sum of Rs.5,000/- only. Despite requests of the opposite party, they did not clear the balance dues. Hence, they had violated the contract, but did not return the vehicle. While investigation into the allegations made in the F.I.R. was in progress, a motion was made to the learned S.D.J.M. to pass an interim order to release the vehicle in favour of the petitioners upon their executing a bond and giving an undertaking to produce the vehicle whenever called upon. The opposite party carried Criminal Revision No.135 of 1981. The learned Sessions Judge set aside the interim order passed by the learned Magistrate and directed release of the vehicle in favour of the opposite party. The matter came to this Court in Criminal Revision No.126 of 1982. On 25-3-1982 this Court passed an interim order staying operation of the order passed by the learned Sessions Judge. But in the meanwhile the order of the learned Sessions Judge was given effect to and the vehicle was delivered to the opposite party. Police submitted final report indicating that the case was one of mistake of law and that the matter was of a civil nature. The opposite party filed a protest petition which was registered as I.C.C. No.165 of 1982. On 13-1-1983 the final report was accepted. Later on, the protest petition was also dismissed. On 7-9-1983 this Court disposed of Criminal Revision No.126 of 1982. This Court observed that inasmuch as final report had been accepted by the learned S.D.J.M., the interim orders passed by him and the learned Sessions Judge had spent up their force. The learned S.D.J.M. should take up for consideration and dispose of the matter relating to release of the truck in accordance with law. Thereupon the learned S.D.J.M. heard the parties and by his final order dt.29-11-1983 the learned Magistrate directed release of the vehicle in favour of petitioner No.1. Opposite party carried Criminal Appeal No.1 of 1984 to the learned Sessions Judge. It is alleged that the appeal was heard ex parte, notice of the appeal was not served on the petitioners who were the respondents in the appeal and by the final order, the learned Sessions Judge directed release of the vehicle in favour of opposite party.

(3.) Mr. S.K. Padhi who appeared for the petitioners at the time of hearing vehemently urged that the opposite party stole a march by suppressing notice on the petitioners and managed to obtain an ex parte order in his favour. The learned Sessions Judge missed the law as clearly enunciated by this Court, namely, the exercise under S.457, Cr.P.C. was to find the person who was entitled to possession of the vehicle. The learned Sessions Judge missed the proper perspective and has gravely erred in the conclusion reached by him. Mr. Palit, learned Counsel for the opposite party, repelled the attack arguing that the opposite party was the registered owner. He was under an obligation to the Bank to clear up the dues. He was liable for any infraction of the permit or license. Hence, direction of the Sessions Judge releasing the vehicle to his client, the rightful owner, could not be found fault with.