SUNIL RATHORE Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS miscellaneous petition is directed against the order dated September 6, 1989, passed by the Additional Chief Judicial Magistrate No. 1, Jodhpur, by which the learned Additional Chief Judicial Magistrate allowed the application filed by Parvej Iraqi and ordered for the delivery of the truck to him on certain conditions and rejected the application filed by Sunil Rathore.

(2.) SUNIL Rathore, on February 17, 1989, filed a complaint in the Court of the Additional Chief Judicial Magistrate No. 1, Jodhpur, against Parvej Iraqi under Sections 420 and 406 I.P.C. It was alleged in the complaint that the complainant purchased truck No. RRN 5318 from Sattar Khan for a consideration of Rs. 68,000/ - and paid the entire amount to Sattar Khan, who handed -over the truck alongwith the duly signed letters and the registration etc. to the petitioner. After the purchase of the truck he got it repaired through Chootu Mistri and spent a considerable amount on it repairs. On January 13, 1988, he entered into an agreement for sale of this truck with Parvej Iraqi for a consideration of Rs. 1,00,000/ - sale deal was settled through Devi Chand Bafna in the workshop of Chhotu Mistri. As per the agreement, Rs. 40,000/ - was paid by the accused to him through Devi Chand Bafna and the' remaining amount of Rs. 60,000/ - was to be paid in monthly instalments of Rs. 4000/ - each, to be payable on 13th day of each month. As per this agreement, the delivery of the truck as 'AMANAT' was given to the accused. It was agreed at that time that as soon as the balance amount of Rs. 60,000/ - will be paid, the sale will be effected in favour of the accused and till the amount is not paid, the truck will remain as an 'Amanat' with the accused Parvej Iraqi and he will only use the truck for carrying the goods etc. but will not sell, alinate or damage the truck. If the balance instalments are not paid, the complainant will be entitled to take -away the truck from the accused. After taking the truck, the accused made payment of only one instalment of Rs. 4000/ - and stopped making payment of the balance instalments. When in the month of June, 1988 the amount of out -standing instalment was demanded from the accused he assured that the payment would be made in the month of July, 1988 and when in July, 1988 the amount was demanded then the accused told that he would make the payment, but did not make any payment till December, 1988; so in December, 1988, the complainant alongwith Devi Chand Bafnawent and asked the accused to make payment, but the accused did not make the payment on that day, also. It was further averred in the complaint that now the complainant has come to know that the accused is selling the truck in question with the 'KABARIES' as scrap. It was, therefore, prayed that the truck was given to the accused as an 'AMANAT' for carrying the goods etc. while the accused is now, selling the truck and he has, therefore, committed the offence, under Sections 420 and 406 I.P.C. and therefore, a proper action may be taken against the accused and the truck in question may be seized. The learned Magistrate sent the complaint for investigation to the Station House Officer, Police Station, Shastri Nagar, Jodhpur, under Section 156(3) Cr.P.C. The police, after necessary investigation, presented the challan against the accused under Sections 420 and 406 I.P.C. and the case is pending in the Court of the learned Additional Chief Judicial Magistrate No. 1, Jodhpur. During the investigation, the truck No. RRN 5318 was seized from the accused on February 18, 1989 and after seizure of the truck, Sunil Rathore moved an application for the custody of the truck. The same facts which are given in the complaint, were mentioned in the application and it was prayed that as he is the real owner of the truck, therefore, the custody of the truck, during the pendency of the trial, may be given to him. The accused Parvej Iraqi, also, moved an application for the custody of the truck. The learned Magistrate, after considering both the applications -one filed by Sunil Rathore and the another filed by Parvej Iraqi -came to the conclusion that Parvej Iraqi is the person best entitled for the custody of the truck. He, therefore, allowed the application filed by Parvej Iraqi and ordered for the delivery of the truck to Parvej Iraqi on certain conditions mentioned in the order and rejected the application of Sunil Rathore. It is against this order dated September 6, 1989, that the present petition under Section 482 Cr.P.C. has been filed.

(3.) IT is contended on behalf of the petitioner that the petitioner purchased the truck from Sattar Khan and he is the owner of the truck. He agreed to sell the truck to Parvej Iraqi for a consideration of Rs. 1,00,000/ - and Parvej Iraqi paid an amount of Rs. 40,000/ - and one monthly instalment of Rs. 4000/ - but the remaining amount has not been paid. The truck was given on 'AMANAT' to him but he, inspite of plying the truck on hire, is selling the truck as a scrap to the 'KAB ARIS'. He has, thus, committed the criminal breach of trust and cheated the complainant. As the complainant is the owner of the truck, therefore, the truck should have been ordered to be delivered to him. The learned Counsel for the petitioner has placed reliance over the judgments rendered in : U. Kariyappa v. P. Sreekantaiah and Anr. 1980 Cr.L.J. 422, Shri Narayan Agrawal v. The State of Madhya Pradesh and Anr. 1983 (V) Crimes 610, Mar Nath v. The State of Rajasthan 1984 R.C.C. 44 and S. Abdul Jabbar v. Khaleel Ahmed and Ors. 1986 (3) Crimes 111. The learned Counsel for the non -petitioner, on other hand, has submitted that the complainant is not the owner of the truck and the non -petitioner purchased the truck from Devi Chand Bafna. He has placed on record two receipts given by Devi Chand Bafna, acknowledging the receipt of Rs. 40,000/ - and Rs. 4000/ -. He, therefore, prayed that the truck in question was rightly ordered to be given to him. He has, further, submitted that he is the real owner of the truck in question because the agreement was arrived -at between Devi Chand Bafna and him and he is in possession of the truck in question. The truck was recovered from his possession and he is, therefore entitled for the custody of the truck. Reliance in support of the contention was placed on Mis. Automobile Transport (Rajasthan) Pvt. Ltd. v. Dewa Lal and Ors. 1977 (27) I.L.R. 177.