Bhanwar Lal vs State of Rajasthan and Another

Harbans Lal, J.—This criminal misc. petition u/s 482 Cr.P.C. is directed against the order dated 14.8.2001 of the learned Chief Judicial Magistrate, 1st Class, Jaitaran passed on an application u/s 451 Cr.P.C. for the release of the truck in F.I.R. No. 31/2001, Police Station, Raipur.

Briefly stated, the relevant facts are that on a complaint filed by petitioner Bhanwar Lal for the offences Under Sections 420 and 406 I.P.C., an F.I.R. No. 31/2001 was registered against the accused non-petitioner Arjun Puri. During investigation of the case the truck No. RNQ 4601 which was registered in the name of petitioner was recovered. The petitioner moved an application on 14.3.2001 and the non-petitioner moved an application on 13.3.2001 for the release of the said truck on ''Superdiginama'' during the pendency of the case but the learned court below refused the application of petitioner Bhanwar Lal and accepted the application of accused non-petitioner Arjun Puri and ordered the release of the truck on ''Superdiginama'' in his favour. Hence, this petition.

Learned Counsel for the petitioner has argued that the petitioner is a registered owner of the truck in question and is best entitled to the release of the truck on interim custody and the learned court below has passed the order mechanically without going into the entire record and without considering the fact that the receipt dated 24.2.2001 filed by Arjun Puri was forged and fabricated document about which the petitioner had lodged an F.I.R. which is under investigation. According to him the order of learned court below is illegal and without jurisdiction and amount to abuse of the process of the court which may be quashed in exercise of inherent powers vested in this Court u/s 482 Cr.P.C.

He has placed reliance on following cases:

1996 Cri. L.R. 148, Ashoka Leyland Finance Co. Ltd. Jaipur v. State of Raj. wherein the truck in question was financed by Ashoka Leyland Finance Co. Jaipur and when the instalments were not paid by Indra Singh then as per the conditions of hire purchase agreement, custody of the truck was taken by the company and, therefore, the company was found to be the best entitled person as per the conditions of hire purchase agreement for the delivery of the said truck and the contention of the learned Public Prosecutor that Indra Singh, who was registered owner of the truck was entitled to its delivery was repealed.

1996 Cri.L.R. 265, Shiv Dan Singh v. State of Raj. where one Ram Kumar, who was the registered owner of the tractor had allegedly sold it to Bhanwar Lal, who in turn sold it to Shiv Dan Singh but the tractor remained registered in the name of Ram Kumar and under these circumstances it was held that transferor could not transfer better title the than he had and Bllanwar Lal flatly denied that he ever sold the tractor to the petitioner. In this case, neither Bhanwar Lal nor Shiv Dan Singh could produce any sale deed or other document in support of their possessory title. 3. 1999 (2) R.C.C. 771, Hanuman Sahai v. State of Raj. wherein Bhanwar lal Sharma obtained the possession of the jeep after making part payment but the registered owner dispossessed him when the balance amount the remained unpaid. The police seized the vehicle and the High Court ordered the vehicle to be delivered on ''Superdiginama'' to one Hanuman Sahai, who in the meanwhile purchased the vehicle and got it registered in his own name.

2001(4) Crimes 26 Bhanwar Lal Sharma v. State of Raj. wherein, it has been held that leasing firm can repossess defaulter''s car given on hire purchase agreement as per terms of the agreement and it does not amount to any criminal offence like criminal breach of trust, cheating, theft, dacoity criminal house trespass or their abetment or conspiracy.

Thus, the facts of these cases are clearly distinguishable from the facts of the case in hand where the case of the petitioner himself is that he has sold the truck to purchaser after receiving part payment of the consideration and the remaining payment was to be made as per the agreement.

Learned Counsel for the non-petitioner has, on the other hand, contended that even as per the case of the petitioner the truck in question was sold and handedover to the non-petitioner and part of the consideration had already been paid to him and the remaining amount was to be paid in instalments. It is a case of purely civil nature and the police has abused its powers by seizing the truck and by filing a charge sheet against the non- petitioner for the alleged offences which are not prima facie disclosed from the allegations in the F.I.R. He has also submitted that the learned court below has yet not taken the cognizance in the matter. He has also pointed out that in another F.I.R. lodged by the petitioner for fabricating and forging the receipt dated 24.2.2001, F.R. has been filed by the police and the said receipt of payment of Rs. 85,151/- has been found to be genuine. According to him the order of the learned court below is a detailed and well considered order and is based on the authorities of this Court applicable to the case and there is no illegality or perversity in the order so as to call for exercise of inherent powers of this Court.

He has placed reliance on the following cases:

1984 Cr.L.R. (Raj.) 343, Harbhagwandass v. State of Raj. and another

1990 (2) R.L.W. 105, Bheem Raj v. The State of Raj.

1991 Cr. L.R. (Raj.) 8, Kulwant Singh v. State of Raj.

I have given my anxious and thoughful consideration to the rival submissions made at the bar and have also considered thoroughly and carefully the facts of the case.

It may be stated at the out set that the learned court below has considered the materials placed before it in sufficient detail and has prima facie found that though the petitioner is the registered owner of the truck in question yet the said truck was sold by him to non-petitioner Arjun Puri for a total consideration of Rs. 1,85,151/- out of which he had paid him Rs, 21,051/- at the time of delivery of the truck and remaining amount was to be paid as per the terms of the agreement dated 14.11.2001 and he had already paid total Rs. 85,151/-to the petitioner, as was evident from the receipt dated 24.2.2001 filed by him.

Learned Counsel for the petitioner has argued that the said receipt dated 24.2.2001 is false, forged and fabricated about which an F.I.R. was lodged by the petitioner which is under investigation, but the learned Counsel for the non-petitioner has categorically and in no uncertain terms refuted that the said receipt was forged or fabricated and has submitted that the police, after investigation, has found the receipt as genuine and has accordingly submitted F.R. in the case and neither party has produced any document with regard thereto and, therefore, it cannot be said what is the out come of the investigation in the said case. Be that as it may, the court below has relied upon the receipt dated 24.2.2001 and in the absence of any material to the contrary, I do not find any valid and cogent reason to take a different view from the one taken by the learned court below in this regard. The petitioner himself has come with a case that he had sold and delivered the truck to the non-petitioner for a consideration of Rs. 1,85,151/-out of which the non-petitioner had paid him Rs. 21,051/- at the time of agreement to sale was executed and the truck was delivered. As per the receipt dated 24.2.2001 a total of Rs. 85,151/- appears to have been paid to the petitioner in part payment of the consideration of the truck.

From the certified copies of the order sheets placed before me by the learned Counsel for the non-petitioner it is also evident that the learned court below has not passed any order with regard to taking of cognizance against the non- petitioner for the alleged offences. Learned lower court in the impugned order has observed and rightly so that the authorities relied upon by the learned Counsel for the petitioner are distinguishable on facts and the authorities relied upon the learned Counsel for the non-petitioner being similar to the facts of the present case are applicable to the present case.

Indeed, in Harbhagwandass v. State of Raj. and another (supra) the truck was seized from the possession of Jakaullah Khan, who had paid huge amount to the petitioner Harbhagwandass towards the agreed sale price of the truck and although Petitioner Harbhagwandass is a registered owner of the truck in question the learned Magistrate had ordered the release of the truck in favour of purchaser Jakaullah Khan and this Court found that there was no illegality in the order of the learned Magistrate and the order of learned Magistrate was upheld. Similarly, in the case of Bheem Raj v. State of Raj. (supra) the truck in question was sold by Kishori Lal to Bheem Raj and an agreement was executed between the parties on 26.6.1989 and the possession of the truck was also handedover to the petitioner who had paid an amount of Rs. 50,001/- on the same date as part consideration of the price of the truck and remaining amount was to be paid in instalments. The truck was seized from the custody of petitioner in pursuance to the F.I.R. lodged by the non-petitioner. Under these facts and circumstances of the case, it was held that if any amount remained outstanding then the non-petitioner could recover the same by way of filing civil suit or otherwise but criminal proceedings are not meant for such a recourse. In the facts and circumstances of the case the truck in question should have been given to Bheem Raj who was the bonafide purchaser of the truck and the respondent No. 2, the registered owner, was not entitled for delivery of the truck.

In Kulwant Singh v. State of Raj. (supra) the truck was seized in pursuance to the F.I.R. from the possession of petitioner Kulwant Singh. The application for release of the truck was rejected by the learned Chief Judicial Magistrate but in criminal misc. petition filed before this Court it was held that the truck was seized in pursuance to the F.I.R. from the possession of petitioner Kulwant Singh to whom the truck was given on hire for consideration of Rs. 3000/- per month, who had paid the hire charges upto June, 1989 and thereafter refused to pay the contractual amount and also got the truck transferred in his name. In these facts and circumstances, of the case, this Court directed the release of the truck in favour of petitioner Kulwant Singh on his furnishing solvent security for its safe custody and production.

Thus, from a perusal of aforesaid authorities and the facts of this case, there is no illegality or perversity in the order passed by the learned lower court and it cannot be said that there is any abuse of the process of the Court so as to lead to any miscarriage of justice or intervention by this Court is essential for securing the ends of justice.

It is well settled principle of law that inherent powers vested in this Court u/s 482 Cr.P.C. ought to be exercised sparingly and with circumspection and only for the purpose and object provided in the said Section and not otherwise.

In the instant case, none of the conditions mentioned in the Section are even prima facie made out and this petition being devoid of merit and substance deserves to be dismissed.

Consequently, this petition is hereby dismissed.