ORDER
Rajendra Saxena, J.
1. Petition No. 201/90 has been filed against the order dated 26-4-1990 passed by learned Munsif and Judicial Magistrate, Merta in F.I.R.. Case No.217/89, Police Station, Merta City, while petition No. 215/ 90 has been directed against the order dated 19-5-1990 passed by learned Munsif and Judicial Magistrate, Jaitaran in F.I.R. Case No. 53/90, Police Station, Jaitaran in respect of the release of Truck No. RSN 1479.
2. Since the facts of these petitions are inter-related, those are being disposed off by a common order.
3. It appears that on the report of one Sarvan, Crime No. 217/89 was registered on 26-12-1989 at Police Station, Merta City under Sections 147, 382, I.P.C. and Truck No. RSN 1479 was seized. On 28-12-1989, Sikander Beg and Rashid Khan filed separate applications under Section 451, Cr. P.C. For the custody of the said truck, but the learned Munsif and Judicial Magistrate, Merta by his order dated 4th January, 1990 did not consider it proper to pass any order regarding the delivery of the said truck pending the investigation. Aggrieved by the said order Sikander Beg filed S. B. Criminal Misc. Petition No. 69/90 under Section 482, Cr. P.C., which was accepted by this Court vide order dated 23-3-1990 and the learned Magistrate was directed to decide the said applications within a month. Thereupon, Sikander Beg filed another application dated 27-3-1990 under Section 451, Cr. P.C. along with his affidavit and those of Faiyaz, Bundu Khan and Mukim Khan. He also filed the certificate of registration, public carrier permit and motor vehicle insurance cover note pertaining to Truck No. RSN 1479, which stood in his favour. He further filed a copy of his ration card to prove that he lived separately from his father Mahboob Beg.
4. Rashid Khan did not file any fresh application. However, in his earlier application dated 28-12-1989, he alleged that he had purchased the said truck on 18-8-1989 from Mahboob Beg, the father of Sikander Beg and paid Rs. 10,000/- as an advance on the same day and that thereafter, he paid Rs. 4,000/-on 29-8-1989, Rs.4,000/- on 6-9-1989. and Rs. 13,000/- on 2-12-1989 to Mahboob Beg. He also alleged that the said truck was entrusted to him and that the same was forcibly taken away by Sikander Beg and other persons from the possession of his driver. He, therefore, prayed that the said truck be given to him on Supardginama.
5. On the other hand Sikander Beg alleged that he was the owner of the disputed truck, which was registered in his name, that the said truck was seized from his valid possession, that Mahboob Beg was neither the owner of the said truck, nor had any authority to sell the same, that the truck was never sold and entrusted to Rashid Khan and that he lived separately from his father.
6. Sikander Beg and his witnesses were cross-examined. In rebuttal, Rashid Khan examined himself and produced Nizam Khan, Munir Khan, Ranjit and Noordeen. The learned Munsif and Judicial Magistrate, Merta City by his order dated 26th April, 1990 held that, Mahboob Beg, the father of Sikander Beg had agreed to sell the said truck to Rashid Khan through one Nizam Khan for an amount of Rs. 1,80,000/- and had also entrusted the custody thereof to Rashid Khan. He further held that, that Rashid Khan had paid only an amount of Rs. 32,000/-against the price of the truck to Mahboob Beg or Sikander Beg and that on the day of the alleged occurrence, the said truck was forcibly taken away by Sikander Beg from the possession of Rashid Khan because the latter had made defaults in making payment of Rs. 24,000/- and two monthly instalments of Rs.4,000/- each, which fell due up to December, 1989. He also held that though no sale deed was executed in writing in accordance with law, still then, the sale of the truck was complete. He, therefore, by his order dated 26-4-1990, directed that the interim custody of the said truck be given to Rashid Khan provided the latter executed a Supardginama and surety bond for an amount of Rs. 2,00,000/ – to the effect that he will not sell or alienate the said truck till the completion of the trial and paid Rs. 26,000/- against the remaining unpaid amount of Rs. 50,000/-and six instalments from October to April, 1990 at the rate of Rs. 4,000/- per month and undertook to pay the future monthly instalments regularly. Aggrieved by the said order, Sikander Beg filed Petition No. 201/90 in this Court on 28-4-1990. This Court vide its order dated 3-5-1990 stayed the operation of the impugned order dated 26-4-1990. However, the learned Munsif and Judicial Magistrate, Merta City released the said truck and entrusted the same in the custody of the Rashid Khan on 3-5-1990 prior to the receipt of this Court’s order. The stay order of this Court, therefore, was not complied with.
7. It appears that on 12-5-1990 at 6.30 a.m., one Tahir Beg lodged a written report at Police Station, Jaitaran, wherein, he alleged that, that Rashid Khan, who was driving Truck No. RSN 1479 had run over him and his cycle by driving the said truck rashly and negligently. Therefore, Crime No. 53/90 under Section 279, I.P.C. was registered by the S.H.O., Police Station, Jaitaran and the said truck was again seized. On 14-5-1990, Sikander Beg as well as Rashid Khan filed separate applications under Section 451, Cr. P.C. before the Munsif and Judicial Magistrate, Jaitaran. The learned Magistrate after due inquiry vide his order dated 19-5-1990 held that since the High Court had stayed the operation of the order dated 26-4-1990 passed by the learned Munsif and Judicial Magistrate, Merta City the entrustment of the truck to Rashid Khan was meaningless and that Sikander Beg being the registered owner of the disputed truck, was the person best entitled for the custody of the truck. He, therefore, by his order dated 19-5-1990 directed that the custody of the said truck be entrusted in favour of Sikander Beg provided the latter executed a Supardginama and furnished surety bond for an amount of Rs. 2,00,000/- till the pendency of the trial before him. Dissatisfied by the said order Rashid Khan has filed Criminal Misc. Petition No. 215/90.
8. It may also be mentioned here that on the application of Rashid Khan, this Court vide its order dated 23-4-1991 allowed him to withdraw the amount of Rs. 50,000/-, which he had deposited in the Government treasury in pursuance to the order of the Munsif and Judicial Magistrate, Merta City dated 26-4-1990 and that the truck in question is in the custody of Sikander Beg since 19-5-1990.
9. I have heard the learned counsel for the parties and the learned Public Prosecutor at length and carefully perused the relevant record of the lower Courts.
10. Mr. P. N. Mohanani, learned counsel for Sikander Beg has vigorously contended that, admittedly his client is the registered owner of the disputed truck, that it was financed by M/s. Bhagwan Das Dani, Beawer and that he had never sold the said truck to Rashid Khan, nor his father Mahboob Beg had any authority to sell the same. He has submitted that in fact the said truck was given on hire to Rashid Khan @ Rs. 12,000/- per month, but the latter did not pay the hire charges and had left the said truck in the house of Sikander Beg. According to him the said truck was seized by Merta Police from the custody of Sikander Beg. He has further contended that the learned Magistrate, Merta City has committed a patent illegality in giving the disputed truck in the custody of Rashid Khan, which amounted to abuse of the process of the Court and that the same deserved to be quashed. He has also supported the order of the learned Munsif and Judicial Magistrate, Jaitaran dated 19-5-1990 and reiterated the reasoning incorporated therein.
11. On the other hand, Shri N. N.Mathur, learned counsel for Rashid Khan has asserted that, that from the evidence adduced by the parties, it was fairly established that Mahboob Beg, the father of Sikander Beg had sold the disputed truck to Rashid Khan for an amount of Rs. 1,80,000/-, that it was agreed that Rashid Khan will pay Rs. 50,000/ – in the first instance and thereafter pay monthly instalment of Rs. 4,000/- and that the actual physical possession of the truck was given to Rashid Khan. He submitted that though Rashid Khan could pay Rs. 32,000/- only against the purchase price and that even if he made defaults in payment of monthly instalment, Sikander Beg had no authority to forcibly take away the said truck. According to him, the disputed truck was taken from the possession of Rashid Khan, that the learned Munsif and Judicial Magistrate, Merta City, after taking into account all facts and circum-stances of the case passed the impugned order dated 26-4-1990, which was most equitable, just and proper, because it safeguarded the interests of both the parties. He has strenuously contended that the order passed by the learned Munsif and Judicial Magistrate, Jaitaran was most unjust and illegal because it altogether ignored the findings given by the learned Munsif and Judicial Magistrate, Merta City.
12. The learned Public Prosecutor has not supported the order dated 26-4-1990 passed by the Munsif and Judicial Magistrate, Merta City and defended the order of the learned Munsif and Judicial Magistrate, Jaitaran dated 19-5-1990.
13. I have given my thoughtful consideration to the rival submissions made at the bar. There is no dispute that Sikander Beg is the registered owner of the truck in question. A bare perusal of the certificate of registration reveals that the said truck is subject to a hire purchase agreement with M/s Bhagwan Das Dani Finance Company, Beawer w.e.f. 19-11-1988. The Regional Transport Authority has also issued the public carrier permit pertaining to the disputed truck in favour of Sikander Beg. This permit is valid up to 14-10-1993. The said truck was insured by the National Insurance Company by Sikander Beg for the period from 19-7-1988 to 18-7-1990. On the other hand Rashid Khan has in most unambiguous and explicit terms admitted that no sale-deed regarding the alleged sale was executed. Initially Rashid Khan in his application dated 18-12-1989 had pleaded that he had purchased the disputed truck on 18-8-1989 from Mahboob Beg and paid an Amount of Rs. 10,000/ – as an advance to him. However, later on in his statement in the Court, he invented a new story and deposed that, on 15-8-1989 Sikander Beg & Nizam Khan had come to Khatu, that Sikander Beg had agreed to sell the disputed truck to him for an amount of Rs. 1,80,000/- and that thereupon he had paid Rs. 101/- as an advance to Sikander Beg, that thereafter on 18-8-1989, he along with Abid and Ram Karan went to Merta City and paid Rs. 10,000/- to Sikander Beg and Mahboob Beg. He has stated that on that day the disputed truck was handed over to him, which was driven by his dirver Sarvan. However, Rashid Khan has not cared to produce Abid or Sarvan in support of his testimony. It may also be mentioned here that it was on Sarvan’s report that crime No. 217/89 was registered at Police Station, Merta City. Thus, Abid and Sarvan were most material witnesses and their non-production raises an adverse inference against Rashid Khan. Even in Diary Ex. P. 1, there is no mention that the disputed truck was sold to Rashid Khan or that the amount paid by him was against the price thereof. Since Sikander Beg is the registered owner of the disputed, truck, a heavy burden lay on Rashid Khan to prove the factum of alleged sale of the truck as well as the entrustment of the same to him, but the evidence adduced by him is incomplete, inconsistent, self-contradictory, vague and untrustworthy. The learned Munsif & Judicial Magistrate, Merta City has brushed aside the testimony of Sikander Beg and his witnesses on the sole ground that it was not probable that the disputed truck was given on hire to Rashid Khan at the rate of Rs. 12,000/ – per month, and still then the said truck was being driven by the driver of Sikander Beg. Apparently, this finding is based on mere conjecture, which is not based on the evidence adduced in this case.
14. In Champa Lal v. Ram Chander, 1975 WLN 607 : (AIR 1976 Raj 75), it has been observed that the 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 owner thereof. It has been further observed that 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.
15. In Ishar Nath v. The State of Rajasthan, 1984 Raj Cri C 44, it has been reiterated that until transfer of ownership is entered in the certificate of registration, person in whose name the vehicle is registered under the Motor Vehicles Act, is prima facie entitled to the possession of such motor vehicle under Section 451, Cr. P.C. 16. 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. 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 absence of clear, cogent, convincing and reliable evidence a motor vehicle should not be 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 the vehicle will have to be kept idle as only the registered owner can ply the same and if the vehicle cannot be used on the road, no purpose will be served in giving the interim custody of the motor vehicle to such a person. 17. It will also be worthwhile to emphasize that it is the duty of the court to expeditiously decide, as to who is the person, prima facie entitled to possession of the motor vehicle and hand over its possession to him. The Magistrate is not a civil court, and, therefore, he cannot decide the question of title. 18. In Trilok Singh v. Satya Deo Tripathi, AIR 1979 SC 850 : (1980 Cri LJ 822), there was a purchase of truck under a hire purchase agreement having a default clause to the effect that the financier could seize the truck if there was any default in paying the instalment of the purchase amount. The purchaser filed a complaint against the financier alleging that the truck was forcibly seized and removed. After inquiry, the Magistrate directed the issue of summons against the financier. The Supreme Court held that the dispute raised by the purchaser was purely of a civil nature and that the criminal proceedings initiated was an abuse of the process of the court which deserved to be quashed under Section 482, Cr. P.C. 19. In the instant case, admittedly, Mahboob Beg was not the registered owner of the disputed truck. He also did not have the power of attorney on behalf of Sikander Beg. Neither any sale-deed was executed, nor any sale-letter was written, nor there was any mention in diary Ex.P. 1 that the amount deposited by Rashid Khan was against the purchase price of the truck. The permit was not issued in favour of Rashid Khan. The insurance of the disputed truck for the period in dispute was also in favour of Sikander Beg. Therefore, the learned Munsif & Judicial Magistrate, Merta City committed a patent and manifest illegality in holding that the disputed truck was sold to Rashid Khan and that possession thereof was delivered to him. His findings are clearly perverse, against the record and absurd. Thus by passing the impugned order dated 26-4-1990, he perpetrated the abuse of the process of the court. In such circumstances, the order dated 26-4-1990 cannot be sustained and the same is hereby quashed. 20. The learned Munsif & Judicial Magistrate, Jaitaran did not commit any illegality in ignoring the perverse findings given by the learned Munsif & Judicial Magistrate, Merta City, especially when the operation of the said order was already stayed by this Court. In my considered opinion, the order dated 19-5-1990 passed by the learned Munsif & Judicial Magistrate, Jaitaran is just, proper and legal, which does not warrant any interference by invoking the inherent powers of this Court.
21. In the premise of above discussion, I accept the Criminal Misc. Petition No. 201/ 90 and set aside the order dated 26-4-1990 passed by the learned Munsif & Judicial Magistrate, Merta City and direct that the interim custody of truck No. RSN 1479 He given to Sikander Beg provided he executes a ‘Supardginama’ for rupees two lacs and furnishes a surety bond in the like amount to the effect that he will produce the said truck as and when ordered by the court-during the trial of the case pertaining to FIR No. 217/89 and will not sell or alienate the same to any other person without the permission of the courf.
22. The S.B. Criminal Misc. Petition No. 215/90 is hereby dismissed.