SRI RAMACHANDRA BANIA Vs. GOURAHARI DAS

JUDGEMENT

(1.) THE Petitioner has challenged the order dated 12 -8 -1985 passed by the learned Chief Judicial Magistrate, Jeypore holding therein that the opposite party is entitled to the possession of the truck bearing registration No. ORR 2259.

(2.) THE opposite party had lodged an F.I.R. on 2 -1 -1981 which was registered as jeypore P.S. Case No. 7 of 1981 under Section 379 and 408, IPC on the allegation that he had purchased the truck bearing No. ORR 2259 from the Petitioner and after purchase had entrusted the truck to him to manage the same. While in custody of the truck as a manager, with intention of misappropriating, he has taken it away. On this information G.R. Case No. 7 of 1988 was registered in the Court of the S.D.J.M. jeypore. The police seized the truck on 3 -1 -1981 and gave it in the zimanama of the opposite party. Challenging the order of interim custody the Petitioner preferred Criminal Revision No. 68 of 1981 in this Court. The said revision was disposed of by this Court by order dated 12 -5 -1981 with a direction that the opposite party is to furnish Section unity for being the zimadar. All these orders were passed during the pendency of investigation The police after completion of investigation submitted Final Form in the G.R. Case and the same was accepted by the learned Magistrate vide order dated 20 10 -1981 Before acceptance of the Final Form in G.R. Case No. 7 of 1981, the informant had filed a protest petition on 19 -10 -1981 which had been registered as a complaint being numbered I.C.C. Case No. 78 of 1981. While accepting, the final Form, the learned Magistrate had passed no order on the protest petition, The learned Chief Judicial Magistrate, koraput took cognisance in I.C.C. Case No. 78 of 1981 fide order dated 7 -1 -1982. I he Petitioner filed an application for release of the truck after acceptance of the Final Form in the G.R. Case and the learned Magistrate passed order rejecting prayer for release of the truck by his order dated 7 -8 -1982. The Petitioner filed two criminal revisions in this Court, one against rejecting prayer for release of the truck and the other challenging taking of cognisance on the basis of the protest petition and both the revisions were registered as Criminal Revision Nos. 369 of 1982 and Criminal Revision No. 370 of 1982 respectively. Both the revisions were taken up together for hearing. So far as prayer for quashing the order taking cognisance was concerned his lordship rejected the prayer holding that the learned Magistrate had jurisdiction to take cognisance though Final Form had been accepted and ordered that I.C.C. Case No. 78 of 1981 shall proceed on merits So far as the order of refusing prayer for release of the truck was concerned, his lordship held that the observation in Criminal Revision No. 68 of 1981 remained valid so long as G.R Case instituted on the basis of the F.I.R. continued Since the Final Form filed by the investigating agency has been accepted by the Court, the said G.R. Case has come to an end On 20 -10 -1981. His lordship was fun her of the opinion:

(3.) ON the other hand, learned Advocate for the opposite party submitted that the Petitioner had entered into an agreement for sale of the truck with the opposite party on 30.9.1979 and in pursuance of the said agreement the Petitioner received a Sum of Rs. 21,000/ - on 30 -9 -1979 from the opposite party which has been endorsed in the said agreement. It was further agreed that Rs. 53,000/ - which was due of the Financer Deepak and Co. on being paid by the opposite party clearance certificate was to be obtained. After obtaining the clearance certificate, the Petitioner was to formally transfer the truck in the name of the opposite party. Under the terms of the agreement the title and possession passed from the Petitioner to the opposite party from that day. After execution of the agreement clearance certificate had been obtained from the Financier. The opposite party has also produced some vouchers to prove that he was in possession of the truck. The opposite party has further produced an application addressed by the Petitioner to the Regional Transport Officer, Koraput praying therein to grant permission for transfer of permit in respect of the vehicle No. ORR 2259 in favour of the opposite party. In the said application Rama Chandra Bania had stated that he wanted to sell his truck ORR 2259 to Gourahari Das Besides these documents, one Nabina Chandra Patra and Subash Chandra Patra have stated in their 161 Code of Criminal Procedure statement that in their presence agreement between Rama Chandra Bania and Gourahari Das was executed under which title of the truck was transferred in favour of Gourahari Das. On the date of agreement, Rs. 21,000/ - was also paid by Gourahari Das to Rama Chandra Bania Relying on this document and statement, the opposite party submitted that he was entitled to possession of the truck under Section 457, Code of Criminal Procedure for the above submission, learned Counsel for the opposite party placed reliance on : 52 (1981) CLT 445 Kulamani Swain v. Ghanshyam Sahu, : 60 (1985) CLT 72. Debendra Kumar Nayak v. Abdul Rahaman Khah and Ors. : 50 (1980) CLT 415 Sri Prabhat Kumar Das v. Sri Bijaya Prasad Das and Anr. : AIR 1978 S.C. 1282 Ram Prakash Sharma v. State of Haryana, : 1978 Cri. L.J. 405 Ghafoor Bhai Nabbu Bhai Tawar v. Motiram Keshaorao Bongirwar and Ors. and : 30 (1964) CLT 493 Arjun Padhy and 2 Ors. v. State and Anr.