PRAVAKAR BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This petition filed by the petitioner under S.482, Cr. P.C.challenging the order of the learned Sessions Judge, Puri passed in Criminal Revision No. 42 of 1997 on 3-6-1997 is taken up for final disposal at the time of admission with the consent of the parties.

(2.) On behalf of the petitioner it is submitted that the petitioner entered into an agreement Annexure-1 with the opposite party No. 2 on 25-10-1996 to hire the tractor bearing registration No. OSX 9288 and the trolley bearing registration No. OSX 9289 with the ploughing accessories belonging to the opposite party No. 2 on a monthly hiring charge of Rs. 8,000/-. It was also agreed that the present petitioner would pay Rs. 25,000/- as advance which could be adjusted towards the hiring charges in case of default of the petitioner in paying the monthly charges for three months. The agreement was for a period of eleven months. According to the agreement, the possession of the tractor, the trolley and its ploughing accessories were given to the petitioner. Subsequently, on 18-2-1997 the present opposite party No. 2 lodged an FIR, Annexure-2 at Puri Sadar Police Station alleging that the petitioner did not pay the monthly hire charges as agreed and kept the tractor and trolley concealed in some place. Accordingly, a case under S.406, IPC was registered and in course of investigation, the tractor and the trolley were seized. After the seizure, the present opposite party No. 2 advanced his claim to take possession of the aforesaid vehicles. The petitioner also moved a petition before the learned S.D.J.M.to release the vehicle and the trolley in his favour. The learned S.D.J.M.after hearing both the sides passed order releasing the vehicles to the custody of the present opposite party No. 2. The present petitioner being aggrieved by the aforesaid order filed the revision as mentioned earlier and being unsuccessful has now come up with this petition challenging the orders passed by the lower Courts and seeking an order in his favour.

(3.) The learned counsel appearing for the petitioner submits that since the vehicles were seized from the possession of the petitioner who was in lawful possession of the vehicles at the time of seizure, the possession of the vehicle should have been given to the petitioner. The learned counsel appearing for the opposite party No. 2 submits that the opposite party No. 2 being the registered owner of the seized vehicles the learned S.D.J.M.has rightly passed the order restoring the same in favour of the opposite party No. 1. It is also contended that the order passed by the learned Sessions Judge in upholding the order of the learned S.D.J.M.is also sustainable for the aforesaid reason. It appears from the seizure list, a copy of which has been filed as Annexure-3, that the vehicles were seized from the possession of the petitioner on 18-2-1997. On a perusal of the agreement (Annexure-1), it is found that possession of the vehicle was to remain with the petitioner from 26-10-1996 for eleven months for the use of the petitioner on payment of Rs. 8,000/- per month. It is the case of the opposite party No. 2 that the petitioner defaulted in payment of the charges which the petitioner does not dispute. Under the terms of the agreement in the event of default the opposite party No. 2 is entitled to cancel the agreement and take back possession of the vehicles. Relying on the above clause of the agreement the learned counsel for the opposite party No. 2 contended that the Court below have rightly restored the possession in favour of the opposite party No. 2. It is also contended that as there is a criminal case against the petitioner for an offence under S.406, IPC in respect of the seized vehicles, the petitioner is not entitled to take possession of the same. Learned counsel for the petitioner on the other hand contended that since the petitioner was in possession of the vehicles pursuant to an agreement his possession cannot be termed as unlawful. It is also contended by the learned counsel for the petitioner that even if a criminal case has been registered against him that may not be a consideration for not releasing the vehicles in his favour when he was in possession of the vehicles lawfully at the time of seizure.