SHARIF MOHAMMED Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Since both these petitions arise out of a common order and raises same questions of law and facts, therefore, are being disposed of by this common order.

(2.) Brief facts leading to the presentation of these petitions are as follows. Admittedly, Bus No. HP 32-3786 was owned by the petitioner. He entered into an agreement with respondent No. 2 (in Cr. M.M.O. No. 1 of 2003, hereafter referred to as 'respondent No. 2') on 9-7-2002 agreeing to sell the Bus to respondent No. 2 for a consideration of Rs. 7,25,000.00. On execution of the said agreement, the Bus was handed over by the petitioner to respondent No. 2 and out of the agreed sale consideration a sum of rupees two lacs was received by the petitioner on the same day. Regarding the remainder, suitable conditions were made in the agreement. One of the conditions in the agreement was that in the event of default in payment of the sale consideration as agreed to by respondent No. 2, the petitioner would be entitled to take possession of the Bus. It is not in dispute that pursuant to the alleged breach of the agreement, the petitioner took over the possession of the Bus which led respondent No. 2 to lodge FIR No. 29/2003 dated 27-1-2003 under Section 382 of the Indian Penal Code. In the said FIR, the Bus was seized by the police. The petitioner moved an application i.e. Cr. M.A. No. 24-4 of 2003, under Section 457 of the Code of Criminal Procedure (hereafter referred to as 'the Code') for the release of the Bus along with the documents in the Court of Additional Chief Judicial Magistrate, Sundernagar on the grounds that he is the registered owner in possession of the vehicle and since the investigation in the case is complete, therefore, the vehicle be released to him on such terms and conditions as may be deemed fit and proper by the Court. Respondent No. 2 also applied for the release of the Bus along with documents etc. vide Cr. M.A. No. 23-4/2003. It is averred in the application moved by respondent No. 2 that the RC of the Bus in question is in the name of the petitioner who vide agreement dated 9-7-2002 sold it to him for Rs. 7,25,000.00 and the Bus was handed over to him and out of the settled sale consideration, he paid rupees two lacs to the petitioner in cash and the remaining amount of Rs. 5,25,000.00 was agreed to be paid as per conditions contained in the agreement. It has further been claimed that he has not committed any breach of the conditions of the agreement between the parties and the Bus was being plied by him. However, the petitioner took possession of the Bus along with its documents and cash Rs. 2800.00 from the driver and conductor of respondent No. 2 at Kanaid forcibly and fraudulently. It is further averred that the investigation in the case is complete and the Bus is no more required by the Investigating Agency for any purpose and since the Bus was in the lawful custody of the petitioner, therefore, it be released to him subject to such terms and conditions as may be imposed by the Court.

(3.) The learned Additional Chief Judicial Magistrate, after taking into account the rival contentions of the parties and the material whatever was placed before him and the police report, ordered the release of the Bus along with its documents etc. to respondent No. 2 on 'Spurdari' on furnishing a bond to the tune of rupees eight lacs with one surety in the like amount subject to the further conditions that he would not alienate/dispose of the Bus to another person and would not change or tamper with its components and will produce the same when so directed by the Court. Thus, the application of respondent No. 2 for release of the vehicle was allowed and that of the petitioner was dismissed. Being aggrieved, the petitioner in these petitions has assailed allowing of the application of respondent No. 2 and dismissal of his application for release of the Bus.