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SCR.A/116/2008 11/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 116 of 2008
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GURUKRUPA
TRACTORS THRO GHANSHYAMSINH R. GOHIL - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MR
DHAVAL D VYAS for Applicant(s) : 1,
MR LB
DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,
None for
Respondent(s) : 2,
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CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 30/06/2008
ORAL
ORDER
By
this application under Articles 226 and 227 of the Constitution of
India, the petitioner has challenged the order dated 10th
December, 2007 passed by the learned Judicial Magistrate First
Class, Halvad on the applications filed under Section 451 of the
Code of Criminal Procedure, 1973 (the Code) in connection with the
Halvad Police Station I ? C.R. No.0064/2007 as well as the order
dated 11th January, 2008 passed by the learned Additional
Sessions Judge, Dhrangadhra in Criminal Miscellaneous Application
No.38/2007 and has prayed that the custody of the disputed Mahendra
Tractor bearing Chassis No.3570200577, which has been taken as
muddamal in connection with the aforesaid complaint, be given to the
petitioner.
The
facts of the case stated briefly are that the respondent No.2 had
lodged a complaint against one Kalpeshbhai Doshi alleging that on
3.5.2007 he had purchased a Mahendra Shaktiman 35 Horse Power
tractor worth Rs.3,25,000/- from the said Kalpeshbhai who is an
authorized dealer having a shop by the name of T.K. Tractors. That
he had paid Rs.2,20,200/- to the said Kalpeshbhai and Rs.1,00,000/-
was to be paid after one year. Kalpeshbhai had obtained the said
tractor from one Ghanshyamsinh (the petitioner herein) an authorized
dealer of Jamnagar. That the transaction had been reduced in
writing on a Rs.100/- stamp paper. It is alleged in the complaint
that the said Kalpeshbhai had called up the complainant and told him
to come with Rs.30,000/ so that he would get the tractor insured as
well as passed by the RTO authorities. That the said Kalpeshbhai had
taken Rs.30,000/- from him and asked him to come with the tractor on
10.5.2007 whereupon he had gone to the office of Kalpeshbhai on
10.5.2007 but Kalpeshbhai was not found nor could he be contacted on
phone. It is also stated in the complaint that fourteen days prior
to the lodging of the complaint, the authorized dealer Ghanshyamsinh
has come with one Ashoksinh a resident of Halvad and told the
complainant that the tractor belonged to them, whereupon the
complainant had handed back the tractor to the said Ghanshyamsinh.
Subsequently
the complainant made an application before the concerned Police
Station alleging that the petitioner was trying to dispose of the
tractor in question and requested that the tractor be recovered as
muddamal, pursuant to which the investigating agency took possession
of the said tractor from the petitioner as muddamal in connection
with the aforesaid first information report.
Thereafter,
the petitioner herein moved an application under section 451 of the
Code of Criminal Procedure, 1973 (the Code) seeking custody of the
muddamal tractor. It appears that the respondent No.2 original
complainant also filed an application under section 451 of the
Code.
Both
the aforesaid applications were heard together and decided by a
common order dated 10th December 2007 whereby the learned
Judicial Magistrate First Class, Halvad rejected the application
filed by the petitioner and allowed the application filed by the
respondent No.2. It was ordered that the muddamal tractor be
temporarily handed over to the respondent No.2 subject to the
conditions stipulated in the said order on his furnishing security
to the extent of Rs.7,00,000/- and a personal bond of a like amount.
Being aggrieved by the aforesaid order, the petitioner filed a
Revision Application before the learned Additional Sessions Judge,
Dhrangadhra being Criminal Revision Application No.38/2007. By the
impugned order dated 11th January, 2007 the revision
application came to be rejected. Being aggrieved that petitioner has
filed the present petition under Article 226 and 227 of the
Constitution of India challenging both the aforesaid orders.
Mr.
Dhaval Vyas learned Advocate for the petitioner has vehemently
assailed both the impugned orders. It is submitted that the learned
Judicial Magistrate has erred in going into the question of title
while deciding the application under Section 451 of the Code. It is
urged that as the custody of the tractor had been voluntarily given
by the respondent No.2 to the petitioner, the learned Judicial
Magistrate ought to have directed that the possession of the tractor
be handed over to the petitioner. It is submitted that, in any
case, the tractor in question had been seized from his custody and
as such, ought to have been handed over to the petitioner. In
support of the said contention, reliance has been placed upon a
decision of the Supreme Court in the case of Rajendra Prasad
v. State of Bihar and another,
2001(10) SCC 88. The learned advocate for the petitioner has also
placed reliance upon a decision of the Kerala High Court in the case
of Biju v. Sub-Inspector of Police, Pavaratty Police Station
and others,
1998 Cri.L.J. 1927, wherein temporary custody of the vehicle had
been granted to the person from whom it was seized, to contend that
in the facts of the present case also, the vehicle had been seized
from the petitioner and as such, the temporary custody of the
vehicle was required to be granted to the petitioner.
It is further submitted out that if the version of the complainant
is believed, his ownership could not have been believed.
It
is next contended that the learned Additional Sessions Judge has
erred in holding that the order passed by the learned Judicial
Magistrate on the applications made under Section 451 of the Code
was an inter-locutory order and hence, revision is not maintainable.
It is pointed out that it is settled legal position, as held by
this Court in the case of Jashwantsinh Punjabhai Parmar v.
Dolatsinh Somabhai Chauhan and others, 1980(2) GLR 281, that
against an order passed under Section 451 of the Code granting
interim custody, revision is maintainable. It is pointed out that
despite holding that the revision application was not maintainable,
the learned Additional Sessions Judge had gone ahead and decided the
matter on merits. It is submitted that once it is held that
revision is not maintainable, the learned Additional Sessions Judge
could not have gone into the merits of the case. It is,
accordingly, urged that the impugned order passed by the learned
Additional Sessions Judge be quashed and set aside and the matter be
remanded for fresh consideration on merits.
On
facts, it is submitted that both the Courts below have failed to
appreciate that M/s T.K.Tractors was a sub-dealer. The disputed
tractor was given to M/s T.K.Tractors as demo-piece which was not
meant for sale. Therefore, there was no question of Kalpeshbhai
selling the said tractor, that too in his individual capacity to the
present respondent No.2. It is argued that the tractor was allotted
to the present petitioner on 28th February, 2007 for
which the petitioner paid approximately Rs.3,09,399/-, however, the
said tractor has been sold to the respondent No.2 for a sum of
Rs.2,20,000/- in cash and a sum of Rs.1,00,000/- was to be paid in
cash after a period of one year. It is contended that the aforesaid
fact itself disentitles the respondent No.2 from possession of the
disputed tractor. It is submitted that the complainant has
purchased the tractor on 3rd April, 2007 by virtue of an
agreement executed on a stamp paper of Rs.100/- which is not even
notarized or stamped, hence, the Courts below have erred in holding
in favour of the respondent No.2.
This
Court has considered the submissions advanced by the learned
advocate for the petitioner and has perused the record of the case.
As can be seen from the impugned order dated 10th
December, 2007 passed by the learned Judicial Magistrate, it was the
case of the respondent No.2 before the learned Judicial Magistrate
that, on 3rd April, 2007, the respondent No.2 ?
complainant had purchased the disputed tractor on payment of
Rs.2,20,000/- in cash at the relevant time and a sum of
Rs.1,00,000/- was to be paid subsequently. The accused Kalpeshbhai
had assured the respondent No.2 that the RTO passing of the tractor
would be done within a period of one month. In the meanwhile, on
2nd June, 2007, at night, the petitioner ?
Ghanshyamsinh as well as Ashok Bhanjibhai, who is a head-strong
person, had forcibly taken possession of the disputed tractor. The
respondent No.2 had lodged a complaint against them before the
police, however, the police had not registered the same. After
several representations in this regard, the complaint had been
registered on 13th June, 2007, but the petitioner
Ghanshyamsinh and the said Ashoksinh were not arraigned as accused.
It was contended that the role of the police is also suspicious.
That the respondent No.2 had addressed several letters by Registered
A.D. Post to different authorities and informing them that he is a
bonafide purchaser of the tractor in question. It was contended
that the sale letter produced by the petitioner does not indicate
that the tractor was a demo-piece. It was the case of the
respondent No.2 that, in case the accused Kalpeshbhai has not paid
the price of the tractor to the petitioner, that was a matter of
dispute between the accused and the petitioner herein, and that the
respondent No.2 had no concern with the same.
The
learned Judicial Magistrate, after considering the submissions of
both the parties, has found that the tractor in question initially
was of the ownership of Gurukurpa Tractors of Jamnagar. The accused
Kapeshbhai Punambhai Doshi had purchased the same from it. The
petitioner has produced a delivery challan No.43 in this regard.
The accused had sold the tractor to the respondent No.2 and
thereafter, the petitioner had taken away the tractor from the
respondent No.2 on 2nd June, 2007. The learned Judicial
Magistrate was of the view that when different parties are claiming
the muddamal, firstly the question of ownership is required to be
gone into. The learned Judicial Magistrate has noted that the
petitioner is a dealer of tractors and the accused Kalpeshbhai Doshi
was his sub-dealer, whereas the respondent No.2 – complainant was
the purchaser of the tractor. Upon perusal of the documents on
record, the learned Judicial Magistrate has found that the dealer
had given delivery of the tractor to the sub-dealer on 27th
March, 2007 and the sub-dealer had sold the vehicle to the
respondent No.2 on 3rd April, 2007. Thus, prima facie,
the ownership rights have passed from the dealer to the sub-dealer
and then, to the purchaser of the vehicle. Thus, like any other
ordinary vehicle, the muddamal vehicle has also reached the
purchaser through the proper channel. Thus, the ownership appears
to have vested in the respondent No.2 purchaser.
As
regards the possession of the tractor, the learned Judicial
Magistrate has observed that it is an admitted fact that the
petitioner had taken away the muddamal tractor from the respondent
No.2 on 2nd June, 2007. However, at that point of time,
the petitioner did not have any ownership rights over the said
vehicle, thus, it can be said that the petitioner had taken away the
vehicle on 2nd June, 2007 without any right or title over
the same. The learned Judicial Magistrate has further observed that
the tractor had been sold by the petitioner to the sub-dealer who
was required to pay the entire sale consideration within a period of
30 days, and in case the said amount was not paid, the petitioner
would be able to take back the tractor. However, in the facts of
the present case, it is not the case of the petitioner that the said
Kalpeshbhai has not paid the sale consideration. Moreover, no
action has been taken for taking back the tractor within 30 days. In
these circumstances, it can be presumed that the sale consideration
has been paid. Moreover, in case the amount has not been paid, the
petitioner can initiate suitable action against the accused
Kalpeshbhai, however, the complainant being a bonafide purchaser,
the petitioner could not have directly taken possession of the
tractor from him. For the aforesaid reasons, the learned Judicial
Magistrate has held that the respondent No.2 was a poor
agriculturist who had purchased the tractor for agricultural
purposes; if the tractor is not handed over to him and remains in
the police station, the machinery of the tractor is likely to be
damaged and non-return of the muddamal would cause injury to the
respondent No.2, which cannot be compensated in terms of money. The
learned Judicial Magistrate, therefore, prima facie found that the
respondent No.2 is entitled to the possession of the tractor in
question and ordered accordingly.
The
learned Additional Sessions Judge, Dhrangadhra vide the impugned
impugned order dated 11th January, 2008 agreed that the
order passed by the learned Judicial Magistrate on merits and found
no reason to intervene. However, the learned Additional Sessions
Judge also held that the order passed by the learned Judicial
Magistrate First Class was an interlocutory order and as such, a
revision was not maintainable against the same. On the aforesaid
grounds, the learned Additional Sessions Judge rejected the revision
application.
This
Court in the case of Jashwantsinh Punjabhai Parmar v.
Dolatsinh Somabhai Chauhan and others,
1980(2) GLR 281 has held that an order under Section 451 of the Code
directing handing over of a vehicle cannot be said to be an
interlocutory order and therefore, can be revised under Section
397(2) of the Code. This Court has, in the case of Thakaar
Mahendraprasad Bapalal and another v. The State of Gujarat and
another, 1985 GLH 61, held
that an order under Section 451 is qua interim custody, possession
and disposal of the muddamal property. It cannot be said to be an
interlocutory order not revisable by the High Court. It was held
that such an order cannot be said to be an interlocutory order, in
that sense, it is an order which decides the substantial and
important rights of parties, and, therefore, revision application
against such an order is maintainable. In the circumstances, in the
light of the view taken by this Court in the aforesaid decisions,
the impugned order passed by the learned Additional Sessions Judge
is erroneous to that extent.
The
learned advocate for the petitioner is also right in contending that
once the learned Additional Sessions Judge had come to the
conclusion that the revision is not maintainable, he ought not to
have decided the case on merits. However, what is required to be
examined is as to whether merely on that ground, the impugned order
passed by the learned Additional Sessions Judge is required to be
set aside and whether the matter requires to be remanded for fresh
consideration on merits.
When
two parties have made competing claims as regards the ownership of
the tractor in question for the purpose of claiming custody of the
same under Section 451 of the Code, the same could have been decided
only after examining the evidence on record and arriving at a prima
facie finding regarding the ownership of the disputed vehicle. In
the circumstances, no infirmity can be found in the order of the
learned Judicial Magistrate in firstly, going into the issue of
ownership, and after recording a prima facie view that the
respondent No.2 is entitled to possession of the disputed tractor,
directing that the custody of the muddamal tractor be handed over to
the respondent No.2.
As
noted hereinabove, the learned Additional Sessions Judge had erred
in holding that the revision application was not maintainable.
However, at the same time, the learned Additional Sessions Judge has
also upheld the order of the learned Judicial Magistrate on merits.
In the circumstances, when this Court is in agreement with the
reasoning adopted by the learned Judicial Magistrate, which has been
upheld by the learned Additional Sessions Judge, no fruitful purpose
would be served by remanding the matter to the learned Additional
Sessions Judge, as prayed for by the learned advocate for the
petitioner, except that there would be another round of litigation.
For
the foregoing reasons, this Court does not find any merit in the
petition so as to warrant any intervention by this Court. The
petition is, accordingly, dismissed in limine.
[HARSHA
DEVANI, J.]
parmar*
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