ORDER
B.B. Vagyani, J.
1. Heard Shri R. B. Raghuwanshi, learned counsel for Petitioner; Shri D. V. Tele, learned APP for respondent No. 1 and Shri K. D. Bade Patil, learned counsel for respondent No. 2.
2. A vehicle, tempo bearing No. MH-16-B-708 was admittedly owned by the present petitioner. The petitioner is the registered owner of the vehicle in dispute. The petitioner lodged a report at Police Station Pathardi on 29th October 1998 contending therein that the vehicle was forcibly taken away by the respondent No. 2 from the custody of the driver. On the basis of said report, a Crime No. 192 of 1998 under Section 379 of Indian Penal Code has been registered. Accordingly, the Regional Transport Officer was also informed about theft of the vehicle.
3. The said vehicle was found parked in front of the office of Regional Transport Officer. The vehicle was subject matter of theft and, therefore, the police officer seized the vehicle on 16-11-1998.
4. The present petitioner, after coming to know about seizure of the vehicle, moved the learned Judicial Magistrate, First Class, Pathardi for custody of the vehicle. The respondent No. 2 also moved the learned Judicial Magistrate, First Class, Pathardi for custody of the vehicle. It was contended on behalf of the respondent No. 2 that he has purchased the tempo on 16-1-1998 for valuable consideration and in pursuance of the terms of agreement of sale, he paid Rs. 1,85,000/- in cash to the present petitioner and gave a cheque of Rs. 1,85,000/- to the finance company. The respondent No. 2 thereafter obtained “No Objection Certificate” from the finance company for the purpose of transfer of vehicle. He also obtained “No Objection Certificate” from the present petitioner to enable him to get the vehicle transferred in his name from the office of Regional Transport Officer. He obtained signatures of the present petitioner on Transfer of ownership form. He submitted all the relevant papers to the Regional Transport Officer for the purpose of registration of the vehicle in his name. However, the present petitioner informed the Regional Transport Officer that the vehicle was involved in theft case and the vehicle should not be transferred in the name of the respondent No. 2 who is an accused in the said case. Acting on the objection of the petitioner, the Regional Transport Officer did not take further steps in the matter of registration of the vehicle.
5. The learned Judicial Magistrate, first Class. Pathardi after hearing submissions of the rival claimants and after perusal of partial material, allowed the application filed by the present petitioner and rejected the application of respondent No. 2 by common order dated 27-11-1998. The learned Judicial Magistrate. First Class, Pathardi directed the police officer to hand over custody of the vehicle to the petitioner on execution of a bond of Rs. 6 lakhs. In response to the order of the learned Judicial Magistrate, First Class, Pathardi, the petitioner executed a bond of Rs. 6 Lakhs and obtained custody of the vehicle.
6. Feeling aggrieved by the impugned order dated 27-11 -1998 passed by the Judicial Magistrate, First Class, Pathardi, the respondent No. 2 filed Criminal Revision Application No. 253 of 1998. The learned Additional Sessions Judge, Ahmednagar by his order dated 23-2-1999, set aside the order of learned Judicial Magistrate, First Class, Pathardi and allowed the claim of the respondent for custody of the vehicle on certain conditions. Feeling aggrieved by the reversal order passed by the learned Additional Sessions Judge, Ahmednagar, the registered owner of the vehicle has filed present Criminal Writ Petition under Articles 226 and 227 of the Constitution of India and under Section 482 of the Criminal Procedure Code.
7. Shri Raghuwanshi, the learned counsel submits that the petitioner being the registered owner of the vehicle, has got better right over the custody of the vehicle and, therefore, the reversal order passed by the learned Additional Sessions Judge, Ahmednagar is liable to be set aside. According to him, the registered owner of the vehicle has better claim and while deciding the matter with regard to custody of the vehicle, the registered owner is required to be given a preferential treatment. In order to support his submissions, he relied upon following cases :
1. Hari Mohan Shivhare v. State of M.P. (1983) 2 Crimes 601 (Madh Pra);
2. Eicher Motors Ltd. v. Mohammed Yusuf G. Nadaf (1989) 3 Crimes 715 (Bombay);
3. Sardar Singh v. Nur Ahmed (1991) 3 Crimes 783 (Him Pra);
4. U. Kariyappa v. P. Sreekantaiah 1980 Cri LJ 422 (Kant).
8. On the other hand, Shri Bade Patil, learned counsel for respondent No. 2 submitted that the general rule with regard to handing over custody of the vehicle to the registered owner cannot be adhered to in all the cases. If the presumption with regard to ownership of the vehicle on the basis of registration certificate is rebutted by strong and unimpeachable documentary evidence, then the normal rule is required to be deviated and consequently, the custody of the vehicle should necessarily go to the adverse party who has superior right to possess. In order to buttress his submissions, Shri Bade Patil, learned counsel relied upon the case of Kishan Pandurang Kagde v. Baldev Singh Gian Singh 1977 Mali LJ 656. He brings to my notice that the Division Bench of this Court has held that the transfer of ownership of vehicle will by governed by the provisions of Sale of Goods Act and, therefore, the transfer of ownership takes place immediately from the date of sale of the vehicle. Shri Bade Patil, learned counsel has also relied upon the decision of Orissa High Court in the case of Srinibas Sahu v. State 1991 Cri LJ 2053. Heavily relying on this ruling, he submits that the registration is not the sine qua non for delivery of the vehicle.
9. I gave anxious consideration to the rival submissions made at the Bar. I carefully perused the rulings cited by both the sides. Under Section 457 of the Criminal Procedure Code, the Magistrate has to consider who is entitled to possession of the vehicle which has been seized by the police. Under Section 457 of the Criminal Procedure Code, the Magistrate is required to find out who has superior right for the custody of the vehicle.
10. No doubt, registration certificate is the prima facie proof of ownership of the vehicle. The certificate of registration will be preferred in the absence of any rebuttal evidence. However, the matter in hand has different facet. The respondent No. 2 has claimed better right for the custody of vehicle. The present respondent No. 2 has brought on record number of documents to support his tall claim for the custody of vehicle. From these documents, one can drew a legitimate inference that there was a transaction of sale between the petitioner and the respondent No. 2 and in pursuance of the sale transaction dated 16-1-1998, the respondent No. 2 appears to have parted with huge money. He gave Rs. 1,85,000/- in cash to the petitioner and gave a cheque of similar amount to the finance company. The vehicle was delivered to the respondent No. 2. The matter does not rest here. The respondent No. 2 obtained “No Objection Certificate” from the finance company. Similar kind of no objection certificate is also obtained from the petitioner for effecting lawful transfer of the vehicle. On 29-5-1998, the petitioner informed the Regional Transport Officer that he has no objection to transfer the vehicle in the name of respondent No. 2. This documentary evidence is in the nature of rebuttal evidence. The learned Magistrate has ignored the plea of respondent No. 2 with regard to sale transaction. Similarly he ignored the best piece of documentary evidence and thought it fit to invoke the general principle that the registration certificate is the prima facie proof of ownership and relying on this principle, he handed over interim custody of the vehicle to the petitioner. He has been heavily impressed by the fact of registration of crime of theft against the respondent No. 2 and has come to the conclusion that the petitioner has better claim for custody of the vehicle on the basis of the registration certificate. He has completely lost sight of the scope of enquiry contemplated under Section 457 of Criminal Procedure Code.
11. At the costs of repetition, I would like to mention that under Section 457 of Criminal Procedure Code, the Magistrate is required to consider the better right to possess the property. The Magistrate is not required to decide the question of title. The learned Magistrate has come to a wrong conclusion that the contentions of the respondent No. 2 cannot be considered because of his involvement in the criminal case of theft of the vehicle. He has observed in para No. 10 of his order that a crime under Section 379 of Indian Penal Code has been registered against the respondent No. 2 by Pathardi Police and, therefore, his claim over the subject matter of theft cannot be considered. The learned Judicial Magistrate should have considered the implications of sale transaction of the vehicle. He ought to have considered the documents placed on record by the respondent No. 2. The conclusions drawn by the Judicial Magistrate, First Class, Pathardi are patently erroneous. Irrespective of registration of crime against the respondent No. 2, the Judicial Magistrate First Class, Pathardi was expected to find out whether respondent No. 2 is possessed of better right over the custody of the vehicle. The respondent No. 2 is bona fide purchaser for value before commission of offence of theft. He should not have refused to consider the contention raised by the respondent No. 2 in respect of transfer of vehicle. Because of erroneous order with regard to custody, the foul play perpetrated by the petitioner is honoured and respected.
12. Under the circumstances, the order passed by the Judicial Magistrate, First Class, Pathardi with regard to handing over custody of the vehicle to the petitioner has been rightly set aside by the learned Additional Sessions Judge, Ahmednagar. The learned Additional Sessions Judge, Ahmednagar has elaborately discussed the plea of respondent No. 2 and has rightly concluded that the general rule with regard to handing over custody to the registered owner is not applicable to each and every case and if it is found that the opposite party has better right to possess the property, the general rule can be deviated and the custody of the vehicle can legitimately be delivered to the rival claimant.
13. Taking into consideration the entire record placed on record, it is clear that the respondent No. 2 has better right to possess the vehicle. Under the circumstances, the custody of the vehicle must go to the respondent No. 2.
14. The present petition has invoked the discretionary power of this Court and seeks cancellation of the order passed by the Additional Sessions Judge, Ahmednagar. 1 am not inclined to invoke the discretionary powers in favour of the petitioner. It is clearly seen from the order of the learned Additional Sessions Judge, Ahmednagar that after having completed the sale transaction of the vehicle and after having accepted the full consideration of the vehicle, the petitioner delivered the vehicle to the respondent No. 2. He raised objection before the Regional Transport Officer in the matter of registration of vehicle in the name of respondent No. 2 without any legitimate right, I would like to mention that the vehicle is movable property and, therefore, the transfer of ownership of moveable property will necessarily be governed by the provisions of the Sale of Goods Act. After having received the full consideration of the vehicle and after having delivered the vehicle to respondent No. 2 in pursuance of the sale transaction, the sale transaction becomes complete. The respondent No. 2 is the owner of the vehicle in law. If there is any doubt with regard to unpaid amount of consideration, only remedy available to the present petitioner is to bring a civil action against respondent No. 2 for the purpose of recovery of unpaid purchase price of the consideration.
15. The case of respondent No. 2 finds full support from the case of Kishan Pandurang Kagde (1977 Mah LJ 656) (cited supra). The Division Bench of our High Court has held that the transfer of ownership does not flow from and does not depend on transfer of registration. The transfer of ownership takes place from the date of sale and not from the date on which name of transferee is recorded. Moreover, our High Court has taken a view in the case of Virendrakumar J. Handa v. Dilawar Khan Alij Khan 1992 Cri LJ 2476 that the custody of the vehicle should be handed over to the person making out superior title notwithstanding that registration of the vehicle stood in the name of another. If the conduct of the petitioner is taken into account, he deserves no sympathy. Under the circumstances, this is not a fit case to grant any discretionary relief to the petitioner.
16. The cases relied upon by the learned counsel Shri Raghuwanshi do not come to the rescue of the petitioner. Those cases were decided on their own facts. It has been held in the case of Hari Mohan Shivhare (1983 (2) Crimes 601) (Madh Pra) (cited supra) that presumption with regard to ownership on the basis of registration certificate is rebuttable. The facts of the case of M/s. Eicher Motors Ltd. (1989 (3) Crimes 715) (Bombay) (cited supra) are quite different. After payment of full price of the vehicles, sale transaction was completed and thereafter vehicles were transferred in the names of purchasers. So the purchasers were preferred. In the instant case, the learned Additional Sessions Judge has also preferred the purchaser i.e. the respondent No. 2. In the case of Sardar Singh (1991 (3) Crimes 783) (Him Pra) (cited supra), the vehicle was to remain with the transferor till full and final payment of bank was made. There was agreement to that effect. Therefore, no interference was made. The single Judge of High Court of Karnatakahas held in the case of U. Kariyappa (1980 Cri LJ 422) (cited supra) that registered owner is proper person for interim custody of the property. But in the case at hand, the respondent No. 2 has established that he has superior right to possess the vehicle.
17. Shri Raghuwanshi, learned counsel further submitted before me that the order of handing over custody to the present petitioner passed by the learned Judicial Magistrate, First Class, Pathardi is an interlocutory order and, therefore, the Criminal Revision filed by the respondent No. 2 before Additional Sessions Judge, Ahmednagar was not at all maintainable in law. In order to support his contentions he relied upon the case of Virendrakumar J. Hande v. Dilawarkhan Alij Khan 1992 Cri LJ 2476. On the other hand, Shri Bade Patil, learned counsel for respondent No. 2 forcefully submitted that the order of rejection passed by the learned Judicial Magistrate. First Class, Pathardi is not interlocutory order and, therefore, the criminal revision was perfectly maintainable in law. In order to buttress his submissions, he relied upon the case of Raju v. State of Rajasthan 1992 Cri LJ 723 (Raj) and the case of T. Narayanaswamy v. State 1993 Cri LJ 3109 (Kant). Our High Court has taken a contrary view. Therefore, I prefer the ratio of the case of Virendrakumar (cited supra).
18. From careful perusal of the impugned order passed by the learned Judicial Magistrate, First Class, Pathardi, it is clear that the interim custody of the vehicle was given to the present petitioner. The learned Judicial Magistrate, First Class, Pathardi has specifically observed in para No. 19 of the order that the matter requires detailed enquiry and at this interim stage, it cannot be concluded that the respondent No. 2 is rightful owner of the vehicle in question. From the tenure of the order passed by the Judicial Magistrate. First Class, Pathardi, it is beyond doubt clear that the interim custody of the vehicle is given to the petitioner by the learned Judicial Magistrate, First Class, Pathardi.
19. The single Judge of this Court has held in the case of Virendrakumar (1992 Cri LJ 2476) (cited supra) that the order directing temporary custody of the property is an interlocutory order and as such, is not revisable under Section 397(2) nor appealable under any express provision of the Criminal Procedure Code. Relying heavily on the ratio of Virendrakumar (cited supra), Shri Raghuwanshi, learned counsel submitted that the learned Additional Sessions Judge, Ahmednagar should not have entertained the criminal Revision Application filed by the respondent No. 2 and ought to have rejected the Criminal Revision Application No. 253 of 1998 on the ground of maintainability.
20. The argument of the learned counsel Shri Raghuwanshi has force of law. The legal position emerged out from the case of Virendrakumar (cited supra) cannot be disputed. But the real question involved in this case is as to whether this is a fit case for grant of discretionary relief. The petitioner has claimed relief of cancellation of order of Additional Sessions Judge by invoking the discretionary powers of this Court. The facts of this case do not at all warrant exercise of discretionary powers in favour of the petitioner because erroneous order passed by the Judicial Magistrate, First Class, Pathardi has been set aside by the learned Additional Sessions Judge and justice has been done.
21. A reference to the case of Nilkanth Prasad v. State of Bihar is not out of place. In this matter, the renewal of certain permits was questioned in appeal before appeal Board. The appeal was incompetent. Appeal Board set aside the renewal of such permits. It is held that neither the High Court nor Supreme Court would interfere in its discretionary powers under Article 226 or 227 of the Constitution of India with the order of Appeal Board on the ground that the Appeal Board had the record before it and gave effect to the correct legal position arising from a notified scheme.
22. A reference with profit can also be made to the case of Mohammad Swalleh v. IIIrd Additional District Judge, Meerut . The order passed by the Prescribed Authority under the U.P. (Temporary) Control of Rent and Eviction Act (3 of 1947) was challenged in appeal before the District Judge. The District Judge set aside the invalid order of Prescribed Authority even though appeal did not lie. The matter was taken to the High Court. The High Court declined to interfere with the order passed by the District Judge under Article 226 of the Constitution of India. The matter was taken to the Apex Court. The Supreme Court refused to interfere on the ground that justice had been done and improper order had been set aside and hence no objection could be taken.
23. Though the ratio of the case of Virendrakumar (1992 Cri LJ 2476) (Bombay) (cited supra) makes the legal position clear, I am not inclined to grant any discretionary relief in favour of the petitioner. If the impugned order of Additional Sessions Judge, Ahmednagar is set aside on the basis of the case of Virendrakumar (cited supra), The order passed by the Judicial Magistrate, First Class, Pathardi, which is unjust on the face of it, will revive. The petitioner cannot be allowed to take benefit of the said erroneous order. The petitioner swallowed the entire consideration of the vehicle and grabbed the custody of the vehicle as well by resorting to faul play. After having sold the vehicle, the petitioner has indulged into criminal case of theft of the vehicle to grab custody of the vehicle. Fraud and deceit ought not benefit anyone. Unfortunately, this well settled principle has been completely divorced by the Judicial Magistrate. It is to be remembered that a right does not arise out of an injury caused to other. Under the circumstances, no interference is called for. The criminal writ petition stands dismissed.
24. Rule is discharged accordingly. Interim relief stands vacated.