JUDGMENT
Y.R. Meena, J.
1. This Miscellaneous Petition is directed against the order of the. learned Judicial Magistrate, No. 2, Jodhpur, whereby, he ordered that vehicle No. RJ-19G 0755 be released on ‘Supurdginama’ to Manoj Kumar (respondent No. 2) provided he furnishes a personal bond In the sum of Rs. 6 lacs with one surety In the like amount.
2. The relevant facts to be notice, In short are that the vehicle bearing No, RJ 19-G 0755 Model-1988 was sold by one Manoj Kumar (respondent No. 2) to the petitioner for a sum of Rs. 3 lacs only and that vehicle was handed-over to the petitioner on 11.12.91. On the same day, the petitioner paid Rs. 2 Lacs and balance sum of Rs. 1 lac was paid on 30.3.92. The Registration of the vehicle was also transferred in the name of the petitioner on the same day. Since 11.12.91, the petitioner was playing that vehicle. On 14.6.92 the S.H.O. Sardarpura, Police Station, Jodhpur seized the said vehicle from the possession of the petitioner in CR No. 139/92 dated 14.5.92 pertaining to the offences under Section 420, 467, 471, 392 and 120B, IPC. The seizure was reported to the Judicial Magistrate, No. 2, Jodhpur where the petitioner and non-petitioner No. 2 applied for delivery of the vehicle. Learned Magistrate has ordered to deliver the said vehicle in favour of non-petitioner No. 2.
3. Being dis-satisfied with the order of the learned Judl. Magistrate; No. 2, Jodhpur, the petitioner preferred this petition.
4. Mr. P.N. Mohanani, learned Counsel for the petitioner submitted that the petitioner has purchased the vehicle In question from the registered owner in bonafide belief and paid the sale amount to the registered owner of the Vehicle, Manoj Kumar Jam. The case, prima facie, is in favour of the petitioner, therefore, the delivery of the vehicle should be given to the petitioner. For that, he relied upon the decisions of this Court in Ishar Nath v. State of Rajasthan 1984 W.L.M. 367 and Sikander Beg v. State S.B. Criminal Misc. Petition No. 01/90 decided on 1.4.92.
5. On the other hand, Mr. J.D. Bohra, learned Counsel for respondent No. 2, submitted that the Truck in question was sold to respondent No. 2 on 9.1.90. The said truck was handed-over to respondent No. 4. Total amount was payable to Rs. 4,75,000/-. Out of that amount, Rs. 1,25,000/-was paid to Mewaram (father of Manoj Kumar Jain). The balance amount was payable in Installment basis i.e. Rs. 8000/- per month. The respondent No. 2 has paid 6th installment to Monaram and got receipt thereof. For subsequent Instalments, the receipt was not given to the respondent No. 2. On 2.10.91 at Akhalia Choraya, the truck was stopped by Manoj Kumar and facibly taken away by him. On 11.12.91, the truck was sold to Mohd. Saleem petitioner. Mr. Bohra further submitted that the truck could not he registered in the name of respondent No. 2 as the truck was registered in the name of one Patel in Gujarat. As soon as, it was transferred In the name of Manoj Kumar Jain, he forgedly sold it to Mohammed Saleem.
6. Heard rival submission and carefully perused the material on record. Admittedly, no amount has been paid to Manoj Kumar Jain by respondent No.2. It is only claimed that respondent No. 2 paid Rs. 1,25,000/- to Mewaram father of Manoj Kumar Jain on 1.5.90 and balance amount was paid in instalments to Mewaram. Neither any proper receipts upto June, 1990 nor any receipt of payment after June, 1990 in receipt of the payment of instalment by respondent No. 2 has been shuown. Now, on the basis of these facts, can it be said that there is a prima facie case in favour of the respondent No. 2? Whether the delivery of the truck should be given to him on the basis of the material on record. Mewaram is not registered owner of the truck. The petitioner has entered, into an agreement in respect of purchase of this truck with Manoj Kumar Jain, who was the registered owner. Copy of the agreement to sell is placed on record. The truck was also registered in the name of the petitioner.
7. In Makbool Khan v. The State of Rajasthan 1983 R.Cr.C. 98, the petitioner lodged a FIR alleging that he purchased a truck from Bhanwarlal on 24.1.81 and it was registered in his name. Thereafter the said truck was attached to Munshi Transport Company, Deedwana, Branch Desal and the petitioner used to drive it but on account of his son’s marriage on April, 10, 1981 he entrusted this truck to Ayyub Ali Proprietor of Munshi Transport Company in presence of Ramlal Barber. After marriage was celebrated, the petitioner went to Jaipur on 18.4.81 and came to know that Ayyub Ali had taken away receipt for payment of tax of the truck. The petitioner came to Barmer and further came to know that Ayyub Ali managed to get the vehicle transferred in his name by preparing a forged document. This Court has taken the view that the actual possession of the truck at the time it was seized by the police could be relevant factor but not conclusive to determine the question, which party was entitled to possession thereof. Similarly the registration was not sufficient to treat him the owner and entitle for lawful possession thereof.
8. In the present case there is no material against the petitioner that he has registered the truck in his name on the basis of the forged documents. He has purchased the truck bonqfide from Manoj Kumar.
9. In Isharnath v. State 1984 WLN 367, the facts in the case were that the sale-deed does not state the sale price for which the truck was alleged to have been sold to the accused Bheraram by the petitioner Isharnath. It is a typed document. The court has taken the view that it is difficult to accept at its into value as genuine and real. It is not to be proved that it was executed in favour of the accused by petitioner Isharnath. Therefore, the tractor should have been delivered to the petitioner Isharnath in whose name its registration stood.
10. There is no agreement between Manoj Kumar Jain and nonpetitioner No.2. The agreement to sell dated 17.12.91 has been executed between Mohd. Saleem and Manoj Kumar Jain, that the truck in question has been sold to Mohammed Saleem on 11.12.91. The possession of the truck has also been delivered to him on that day. No such agreement has been executed between Manoj Kumar Jain and non-petitioner No. 2 (Manoj Kumar Bhati). The truck in question was not in possession of non-petitioner No. 2, since 2.10.1991. It was seized by the police from the possession of the petitioner Mohammed Saleem on 14.6.92. The non-petitioner No. 2 has claimed that he purchased this truck on 5.1.90 and part of the sale price amounting to Rs. 1,25,000/- was paid to Mewara and paid the balance amount in subsequent instalment. No evidence in the form of receipt has been adduced in respect of the instalment after June 1990. Even no formal receipt in respect of instalment upon June, 1990 has been shown by non-petitioner No. 2. No agreement between Manoj Kumar Jain and non-petitioner No. 2 for sale of this truck.
11. In Sikander Beg v. State of Rajasthan (supra), the view has been taken by the Single Bench of this Court that whey Mehboob Beg father of Sikander Beg was neither owner of the truck nor he holds any power of attorney behalf of Sikaner Beg; if the same has been paid to him by Rasheedkhan in respect of the purchased of the truck. Rasheedkhan was not entitled for delivery of the truck, Sikander Beg has strong prima facie case in his favour therefore, the delivery of the truck should be given to Sikander Beg.
12. In view of the case referred above, even if some amount has been paid by non-petitioner No. 2 to Mewaram (father of Manoj Kumar Jain) in respect of the said truck Mewaram was not entitled to sell the truck or deliver to any body as neither he was owner of the truck nor he holds any power of Attorney on behalf of Manoj Kumar Jain. No sale-deed has been executed by Manoj Kumar Jain or Mewaram. Only some payment has been shown in a Note-book paper meant for students. There is no sufficient evidence on record to slow that the truck was at all in possession of non-petitioner No.2. Whether any amount has been paid even to Mewaram, I cannot give any finding on this issue when he is not a party before this Court.
13. Thus, there is a strong prima facie case in favour of the petitioner Mohd. Saleem that he was a bonafide purchaser of the truck on 11.12.91. In view of this matter, the delivery of the truck in question has wrongly been given in favour of the non-petitioner No. 2. Hence, it is ordered that the delivery of the truck No. RJ-19-G 0755 be given to the petitioner immediately provided he executes ‘Supurdginama’ in sum of Rs. 5 Lacs with two sureties of Rs. 2,50,000/- each to the effect that he will produce the said truck as and when ordered by the court during trial of the case, in Cr No. 139/92 dated 14.5.92 and further he will not sell or part with the said truck nor make any addition or alteration without prior permission of the court.
14. The petition is disposed of accordingly.