AYUOB KHAN Vs. MUSHTAQ AHMAD DAR

JUDGEMENT

(1.) Petitioner has invoked the jurisdiction of this Court in terms of the provisions of Section 561-A of Code of Criminal Procedure, (for brevity 'Cr.P.C.') for quashing the order dated 21.10.2013 passed by the learned Judicial Magistrate, Pulwama, on the application of Respondent-Mushtaq Ahmad Dar for release of seized tipper bearing registration No. JK13-5511, on the ground that the impugned order has been passed without application of mind ignoring the fact that the petitioner was the registered owner of the seized vehicle entitled to its custody pending inquiry into the allegations in the complaint. It appears that the petitioner approached the court below with a complaint alleging therein that he had purchased the tipper bearing registration No. JK13-5511, in the year 2001, after obtaining the loan from the Bank and engaged the respondent as driver for plying the tipper and submitting its accounts every week to the petitioner. But the respondent had, after adhering to the terms of his engagement for sometime, allegedly committed misappropriation in respect of the vehicle and the income derived from the vehicle. It appears that the learned Judicial Magistrate, after taking cognizance of the offence under sections 406, 420 of RPC deemed it appropriate to get the complaint investigated in order to ascertain truth or falsehood of allegations leveled therein. The learned Magistrate, accordingly, postponed the issue of process against the respondent and directed the SHO, Police Station, Awantipora, to investigate into the allegations in the complaint. The investigation was directed by invoking the provisions embodied in section 202 Cr.P.C. Pending inquiry into the complaint, the vehicle in question came to be seized during the course of investigation. Both the parties approached the learned Judicial Magistrate with the applications seeking release of the seized vehicle. On consideration of the rival claims of the parties, the learned Magistrate passed the order which is impugned herein.

(2.) What emerges is that before the learned Magistrate the claim of the petitioner was that he was the registered owner of the seized tipper and that he had not sold the vehicle to the respondent. He claimed that since the vehicle was financed by the Bank and he was under obligation to liquidate the loan amount, continued detention of vehicle was depriving him of its income inflicting heavy losses upon him.

(3.) Per contra, the respondent staked his claim to the custody of seized vehicle on the ground that he had purchased the vehicle from father in law of the petitioner namely Haji Bashir Ahmad on 11.07.2011, against the consideration amount of Rs. 15.60 lacs; that there was an outstanding liability of financer Bank to the tune of Rs. 8.30 lacs in the name of the petitioner and the respondent had agreed to liquidate the outstanding liability. The respondent claimed that he had deposited the cash component of sale consideration to the tune of Rs. 7,10,215/- through cheques in the Cooperative Bank, Branch Litter, which had issued cheques in the name of the Jammu & Kashmir Bank, Branch Awantipora, for collection in the account of said Haji Bashir Ahmad. Respondent also claimed that he had deposited the various installments of loan amount towards the Bank and thus he was the bona fide purchaser of the tipper entitled to its custody.