MOHAMMED HUSSAIN Vs. STATE OF RAJ

JUDGEMENT

(1.) This revision petition has been filed by the petitioner Mohammed Hussain, against the order dated August 25, 1989 passed by Judge (Communal Riot Cases) Special Court and Addl. Sessions Judge Tonk in Criminal Appeal No. 12/97 (37 of 1993) whereby he allowed the appeal filed against the judgment dated May 3, 1993 of Judicial Magistrate No. 1 uniara in Criminal Case No. 148 of 1985 under Section 420 and 406 IPC, whereby he acquitted the accused respondent and granted the custody of Truck RRL 5141 to him.

(2.) Brief facts of the case are that complainant respondent No. 2 Jaskaran filed a complaint in the Court of Judicial Magistrate uniara on June 1, 1984 stating therein that on July 19, 1983 the accused petitioner came to him at Aligarh and stated that he is owner of Truck No. RRL 5141 Model 1970 and as he is in financial crisis, he wants to sell out his said truck and accordingly the complainant agreed to purchase the said truck for Rs. 62,251/- and he paid Rs. 10,000/- as advance to the accused. It was stated that truck in question is lying at Jaipur. The accused has not handed over the said truck and subsequently the complainant respondent No. 2 took possession of the truck at Jaipur and plied the truck up to May 26, 1984. Subsequently the petitioner came to Aligarh and took away the truck and has not handed over the possession of the truck and ultimately cheated the complainant. The said complaint was sent under Section 156(3) Cr.P.C. to the Police Station, Aligarh. Thereafter the police registered a case No. 26 of 1984 under Sections 406 and 420 IPC. and investigation commenced. During the course of investigation the truck was recovered from the possession of the accused petitioner at Sawai Madhopur and subsequently the police filed challan against the accused petitioner under Section 420 and 406 IPC. The Judicial Magistrate framed charges against the accused petitioner under Sections 420 and 406 IPC. The accused petitioner denied the charges and claimed trial. The prosecution examined 18 witnesses. Accused petitioner was also examined under Section 313 Cr.P.C. After concluding the trial and after hearing both the parties, the Judicial Magistrate Uniara acquitted the accused petitioner vide judgment dated May 3, 1993 and further ordered to hand over the possession of the disputed truck to the petitioner as the truck in question was recovered from the accused petitioner. The State has not filed any appeal against the order of acquittal but subsequently the complainant filed appeal before the Sessions Judge Tonk against the judgment giving custody of the said truck to the accused petitioner. The Sessions Judge after hearing both the parties, set aside the order of the Judicial Magistrate dated May 3, 1993 and ordered to give custody of the disputed truck to the complainant respondent No. 2 vide judgment dated August 25, 1999. Against this order of the Sessions Judge, the present revision petition has been filed.

(3.) Mr. S.S. Hasan, learned Counsel for the petitioner submitted that the truck was recovered from possession of the accused petitioner on June 18, 1984 at Sawai Madhopur. The accused petitioner was having custody of the truck as an owner of the said truck and the petitioner was acquitted from the charge of Sections 406 and 420 IPC, as such the Judicial Magistrate had rightly passed the order as per the provisions of law to hand over the custody of the said to the petitioner, but the special Judge acted beyond the jurisdiction while passing the impugned order dated August 25, 1999 whereby given the custody of the disputed truck to the complainant respondent. Thus the judgment of the special Judge is liable to be set aside and the truck in question should be delivered to him. The learned Counsel placed reliance on Lumba Ram v. State,1998 CrLR(Raj) 589 and Babulal v. State of Rajasthan,1999 CrLR(Raj) 368.