ORDER
D.N. Prasad, J.
1. This is an application under Sections 397/401 of the Code of Criminal Procedure against the order dated 19.2.2000, whereby and whereunder the learned Railway Magistrate. Chakradharpur. Singhbhum (West) rejected the prayer for release of the truck bearing No. BR 16G/0325 in connection with case No. C/7485/97, which was seized and lying at Muri RPF.
2. Notice was issued against O.P. No. 2, said to be the owner/hire purchaser of the
truck in question but inspite of service of notice, neither he appeared nor any counsel on his behalf appeared and about service the petitioner also filed an affidavit claiming that the notice was served on 5.4.2002.
3. The learned counsel appearing on behalf of the petitioner submitted that in terms of agreement, the opposite party No. 2 was only the lessee/hire purchaser and was required to pay lease rent for 35 months of which he only paid four months rent out of advance/dues of Rs. 4,93,600/- in respect of said truck. It is further submitted that the petitioner filed a Misc. Case before the City Civil Court, Calcutta. The learned Court by order dated 1.2.1999 appointed Shri Manabendra Sana Roy, an Advocate as receiver for taking possession of the said truck and he has duly been authorised by the Court to take possession of the truck as per order dated 12.2.1999. In the meantime, this case was registered in which the truck was seized and kept at Muri R.P.F. It is also submitted that the learned Court below rejected the prayer for release of the truck on flimsy ground as the petitioner being the financer, he is the real owner of the truck as the advance taken by the opposite party No. 2 on the basis of the agreement. Annexure 1, the said advance has not been paid as yet. It is further submitted that the opposite party No. 2 also appeared in the Court below on 4.10.2001 and pleaded his guilt and he was fined for Rs. 1,000/- and after depositing the fine, the opposite party No. 2 was released by order dated 4.10.2001 and the opposite party No. 2 has got no interest in the matter and as such he is not appearing willingly.
4. From going through the record, it appears that the advance taken by the opposite party No. 2 was not paid and as a result of which one Misc. Case was already filed at City Civil Court at Calcutta and order was passed for taking possession of the said truck and in view of the agreement also, the petitioner is entailed to get possession of the truck in absence of final liquidation of the said advance taken by the opposite party No. 2.
5. Having regard to the above facts and circumstances. I find that the learned Court below committed error in rejecting the prayer of release of the truck in favour of the petitioner, which is fit to be set aside.
6. Thus, I find merit in this application, which is allowed. The order dated 19.2.2000 is, hereby, set aside. The Court below is directed to release the truck in question bearing No. BR 16G/0325 in favour of the petitioner on furnishing sufficient sureties to the satisfaction of the Court below, with a condition that the petitioner shall produce the truck in question, if and when, required by the Court below.