MANOJ KUMAR SHARMA Vs. SADHAN ROY

JUDGEMENT

(1.) This criminal revision by the complainant is from the order dated 8-4-92 passed by Sri P.C. Borpujari, Sessions Judge, Nagaon, in C.M. No. 20(N-1) 92 reversing the order dated 1-2-92 passed by Sri P. K. Choudhury, Judicial Magistrate 1st Class, Nagaon in C.R. Case No. 508/92.

(2.) The petitioner is a manager of the firm M/s. Purbanchal Motor Finance Co. which does financing in hire purchase of vehicles. It is alleged that the opposite party No. 1 (Sadhan Roy) purchased a truck from the petitioner under a hire purchase agreement in which an amount was fixed at Rs. 49,140.00 and made payable in 12 monthly installments starting from 27-9-87. The truck was then registered in the name of opposite party No. 1 by showing the petitioner firm as financier. Subsequently, the opposite party No. 1, without paying the installment and without the knowledge of the petitioner, transferred the registration to the name of his wife, Smt. Anima Roy Baglary (O.P. No. 2) by deleting the name of the financier. In this registration, the opposite party No. 2 was not shown as wife of opposite party No. 1 and they also got the registration number changed into NLW 3323. The petitioner on enquiry, came to know that the opposite parties were trying to sell the truck to a third party. On this allegation, the petitioner filed a complaint before the Court. On this complaint, the trial Court found prima facie case and took cognizance of the case under Ss. 406/420 of the Indian Penal Code. The truck was then seized and by order dated 1-2-92, the trial Magistrate gave custody of the truck to the petitioner under S. 451, Cr. P.C. Against this order, the opposite parties preferred a criminal motion in the Court of Sessions Judge at Nagaon. By the impugned order, the learned Sessions Judge found that the prosecution was not barred by law, but he was of the view that the person in whose name the registration presently stands is entitled to get the custody of the truck under S. 451, Cr. P.C. Accordingly, he set aside the Magistrate's order and directed to give the custody of the truck to the opposite party No. 2. Thereafter, the opposite party No. 2 got the custody.

(3.) Mr. G. N. Sahewalla, learned counsel for the petitioner, contends before me that the real owner in the instant case is the petitioner to whom the opposite party No. 1 is liable to pay Rs. 49,140.00 on account of hire purchase. He contended that the opposite party No. 1 having illegally transferred the truck, the opposite party No. 2 by deleting the name of the financier and the trial Court having taken the cognizance under Ss. 406/420, I.P.C. against both the opposite parties, it was illegal to give custody to opposite party No. 2. For this, he relied on Gopiram v. Basudeo, (1911) 1 GLJ 420. In that case, one Basudeo was the owner of the truck No. AMA 6231. Rakesh Goyal purchased this truck. Basudeo alleged that some balance amount was to be paid to him within 3/4 months, but without paying the amount, Rakesh Goyal registered the truck in his name in Nagaland, by forging some documents, as NLM 8551 and later on sold the truck to Gopiram who then registered it in his name in Delhi as DL-1G 1807. Basudeo gave F.I.R. alleging that Rakesh Goyal without being the owner of the vehicle sold it to Gopiram by forging documents. The vehicle was then seized and brought to Guwahati. The trial Magistrate gave the custody of the vehicle to Basudeo. On revision, this Court found that no balance was payable by Rakesh Goyal to Basudeo. This Court held that while passing the interim custody, Court has to act in a judicial manner though the power is discretionary and in selecting the person for giving such custody, Court has to act very carefully because, if the custody is given to a wrong person, he may cause damage to the property. With this observation, this Court set aside the Magistrate's order and directed him to decide the matter afresh. To meet this contention, Mr. B. C. Das, learned counsel for the opposite parties, submitted that under the law and in practice, a registered owner is usually given interim custody of the vehicle, no matter whether one is accused or the complainant. He submitted that the trial Magistrate has properly given interim custody to opposite party No. 2 as she was the registered owner and, therefore, no exception could be taken against it. To support this, he placed reliance on Om Prakash v. Bina Saha, AIR 1984 Pat 77. That decision was rendered in claim case for motor accident and it was held that a person in whose name the registration stands was liable for compensation. It was not the case of interim custody in a criminal case. The decision, therefore, cannot be applied to the instant case.