Ghulam Mohd. Shah vs Mohd. Shafi and Another

S.K. Gupta, J.—By means of this reference, learned Additional Sessions Judge, Jammu, has recommended the setting aside of the order

dated 10-10-2002 formulated by 3rd Additional Munsiff, Jammu, whereby the motor vehicle No. 5781-JK02G (Tipper) has been released on the

Supardnama of J&K Bank Ltd. Branch Tootan Di Khui, Jammu. It is also recommended that instead of placing on the Supardnama of the Bank,

the said vehicle be placed on the temporary Supardnama of registered owner-Mohd. Shafi, resident of Bye-Pass Sidhra, Jammu with further

condition contained in the order of reference on the ground that the Bank will not be in a position to use the vehicle nor it can put it to auction as

the same has been seized in criminal proceedings and resultantly the utility of the vehicle would diminish everyday, thereby making the recovery of

the loan by the Bank virtually impracticable.

It appears that in a criminal case, registered on the complaint of Mohd. Shafi, who claims to be the registered owner of the vehicle No. 5781-

JK02G (Tipper) which is stated to have been fraudulently taken away by Ghulam Mohd. Shah from the custody of the registered owner and stood

recovered & parked in Police Station, Nagrota, an application came to be initiated for the temporary custody of the said vehicle during the

pendency of the trial. It was stated before 3rd Additional Munsiff, Jammu, that the vehicle is exposed to heat while lying in the compound of the

Police Station and the automobile is likely to be lost to all in such situations in case the vehicle is not put to use.

Similar application for the release of the custody of the vehicle was also made by Ghulam Mohd. Shah in alleging that the said vehicle has been

purchased by him and he paid the entire amount to the registered owner and also cleared the liability of the Bank. Another application was moved

by the J&K Bank Ltd., Branch Tootan Di Khui, Jammu, claiming the release of the vehicle on the Supardnama as the truck in question was

financed by the Bank in the name of Mohd. Shafi on the execution of requisite documents in their favour, for having loan not yet liquidated till date.

The learned Magistrate, however, after hearing the parties directed the vehicle No. 5781-JK02G to be released on the Supardnama of J&K

Bank Ltd, Branch Tootan Di Khui, Jammu, on the condition not to alienate, transfer for deal with it in any manner without prior permission of the

Court and produce the same as and when required.

Aggrieved by the aforesaid order, two revisions came to be preferred, one by Ghulam Mohd. Shah and the other by Mohd. Shafi, admittedly

the registered owner of the motor vehicle No. 5781-JK02G, before the Additional Sessions Judge, Jammu, who after hearing the parties

recommended the quashing of the order dated 10-10-2002 passed by 3rd Additional Munsiff, Jammu, pertaining to the release of the vehicle in

question of Supardnama, in this reference.

I have heard learned Counsel for the parties and meticulously perused the record of both the Courts below in the matter. It is not in dispute that

Mohd. Shafi is the registered owner of the motor vehicle No. 5781-JK02G and the vehicle stands in his name. Therefore, a heavy burden lies on a

person, who claims that such a vehicle has been sold to him or that he has a superior title. In the absence of convincing, reliable and clear evidence,

a motor vehicle should not be ordinarily given to a person, who is neither a registered owner, nor has valid permit for plying the vehicle, nor has

been duly and validly entrusted with it, even if the police took possession of the same from him. This is because only the registered owner can ply

the same and if it is not used on the road no purpose would be served in giving the interim/temporary custody of the motor vehicle to such a

person.

It has been held in catena of cases by the various High Courts including the Apex Court that until transfer of ownership is entered in the

certificate of registration, person in whose name the vehicle is registered under the Motor Vehicle Act, is prima facie, entitled to the

temporary/interim custody of such motor vehicle u/s 516-A Cr.P.C. Further, the issuance of Registration Certificate of a motor vehicle is an

essential requirement before any such motor vehicle can be made use of and that any person in whose favour such certificate of registration is

issued would obviously be the ostensible owner thereof. In case of any transfer of ownership of a motor vehicle, the procedure contemplated

under the Motor Vehicles Act has to be followed and till any such transfer is entered in the certificate of registration, it has to be presumed that the

person in whose favour such certificate of registration stands, is the owner.

Thus, the preponderance of judicial pronouncements is that interim custody of motor vehicle should generally be given to the registered owner or

in whose name the permit stands.

This Court is not deciding the question as to the title of the vehicle in question nor the correctness of the rival versions regarding the transactions

relating to the vehicle. The only concern of the Court is that the vehicle should not remain in the compound of the Police Station or the Bank,

exposed to heat and cold because the automobile is likely to be lost to all in such situation. The reasons given by the Additional Sessions Judge,

Jammu, recommending quashing of the order dated 10-10-2002 passed by 3rd Additional Munsiff, Jammu, are cogent and are on sound basis. To

avert and avoid such a situation in which the automobile is likely to loss its utility, if allowed to remain stationary and without putting it into use, I am

inclined to entrust the motor vehicle in question to Mohd. Shafi, who is the ostensible name holder in the registration certificate. The custody of the

vehicle with Mohd. Shafi, registered owner, will be on behalf of the Court and this arrangement is only till the stage when the Court passes the

order regarding disposal of the property on conclusion of the trial. The vehicle is ordered to be released to Mohd. Shafi on the following

conditions:

He will produce the original registration certificate (as issued by the Transport Office). If it is a 'duplicate' he must obtain a certificate from RTO

that duplicate was issued from the office.

The registered owner shall also execute a bond in a sum of Rs. 2 lakhs with one solvent surety that he will produce the vehicle back in the Court

whenever required by the Court. This reference is answered, accordingly.