{"id":190433,"date":"2008-06-30T00:00:00","date_gmt":"2008-06-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gurukrupa-vs-state-on-30-june-2008"},"modified":"2015-04-25T15:30:13","modified_gmt":"2015-04-25T10:00:13","slug":"gurukrupa-vs-state-on-30-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gurukrupa-vs-state-on-30-june-2008","title":{"rendered":"Gurukrupa vs State on 30 June, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Gurukrupa vs State on 30 June, 2008<\/div>\n
Author: H.N.Devani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCR.A\/116\/2008\t 11\/ 11\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCRIMINAL APPLICATION No. 116 of 2008\n \n\n \n \n==========================================\n\n\n \n\nGURUKRUPA\nTRACTORS THRO GHANSHYAMSINH R. GOHIL - Applicant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 1 - Respondent(s)\n \n\n=========================================\n \nAppearance : \nMR\nDHAVAL D VYAS for Applicant(s) : 1, \nMR LB\nDABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, \nNone for\nRespondent(s) : 2, \n==========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS.JUSTICE H.N.DEVANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n:  30\/06\/2008 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
By
\n\tthis application under Articles 226 and 227 of the Constitution of
\n\tIndia, the petitioner has challenged the order dated 10th
\n\tDecember, 2007 passed by the learned Judicial Magistrate First
\n\tClass, Halvad on the applications filed under Section 451 of the
\n\tCode of Criminal Procedure, 1973 (the Code) in connection with the
\n\tHalvad Police Station I ?  C.R. No.0064\/2007 as well as the order
\n\tdated 11th January, 2008 passed by the learned Additional
\n\tSessions Judge, Dhrangadhra in Criminal Miscellaneous Application
\n\tNo.38\/2007 and has prayed that the custody of the disputed Mahendra
\n\tTractor bearing Chassis No.3570200577, which has been taken as
\n\tmuddamal in connection with the aforesaid complaint, be given to the
\n\tpetitioner.\n<\/p>\n
The
\n\tfacts of the case stated briefly are that the respondent No.2 had
\n\tlodged a complaint against one Kalpeshbhai Doshi alleging that on
\n\t3.5.2007 he had purchased a Mahendra Shaktiman 35 Horse Power
\n\ttractor worth Rs.3,25,000\/- from the said Kalpeshbhai who is an
\n\tauthorized dealer having a shop by the name of T.K. Tractors. That
\n\the had paid Rs.2,20,200\/- to the said Kalpeshbhai and Rs.1,00,000\/-
\n\twas to be paid after one year. Kalpeshbhai had obtained the said
\n\ttractor from one Ghanshyamsinh (the petitioner herein) an authorized
\n\tdealer of Jamnagar.  That the transaction had been reduced in
\n\twriting on a Rs.100\/- stamp paper. It is alleged in the complaint
\n\tthat the said Kalpeshbhai had called up the complainant and told him
\n\tto come with Rs.30,000\/ so that he would get the tractor insured as
\n\twell as passed by the RTO authorities. That the said Kalpeshbhai had
\n\ttaken Rs.30,000\/- from him and asked him to come with the tractor on
\n\t10.5.2007 whereupon he had gone to the office of Kalpeshbhai on
\n\t10.5.2007 but Kalpeshbhai was not found nor could he be contacted on
\n\tphone. It is also stated in the complaint that fourteen days prior
\n\tto the lodging of the complaint, the authorized dealer Ghanshyamsinh
\n\thas come with one Ashoksinh a resident of Halvad and told the
\n\tcomplainant that the tractor belonged to them, whereupon the
\n\tcomplainant had handed back the tractor to the said Ghanshyamsinh.\n<\/p>\n
Subsequently
\n\tthe complainant made an application before the concerned Police
\n\tStation alleging that the petitioner was trying to dispose of the
\n\ttractor in question and requested that the tractor be recovered as
\n\tmuddamal, pursuant to which the investigating agency took possession
\n\tof the said tractor from the petitioner as muddamal in connection
\n\twith the aforesaid first information report.\n<\/p>\n
Thereafter,
\n\tthe petitioner herein moved an application under section 451 of the
\n\tCode of Criminal Procedure, 1973 (the Code) seeking custody of the
\n\tmuddamal tractor. It appears that the respondent No.2 original
\n\tcomplainant also filed an application  under section 451 of the
\n\tCode.\n<\/p>\n
Both
\n\tthe aforesaid applications were heard together and decided by a
\n\tcommon order dated 10th December 2007 whereby the learned
\n\tJudicial Magistrate First Class, Halvad rejected the application
\n\tfiled by the petitioner and allowed the application filed by the
\n\trespondent No.2. It was ordered that the muddamal tractor be
\n\ttemporarily handed over to the respondent No.2 subject to the
\n\tconditions stipulated in the said order on his furnishing security
\n\tto the extent of Rs.7,00,000\/- and a personal bond of a like amount.
\n\tBeing aggrieved by the aforesaid order, the petitioner filed a
\n\tRevision Application before the learned Additional Sessions Judge,
\n\tDhrangadhra being Criminal Revision Application No.38\/2007. By the
\n\timpugned order dated 11th January, 2007 the revision
\n\tapplication came to be rejected. Being aggrieved that petitioner has
\n\tfiled the present petition under Article 226 and 227 of the
\n\tConstitution of India challenging both the aforesaid orders.\n<\/p>\n
Mr.\n<\/p>\n
\tDhaval Vyas learned Advocate for the petitioner has vehemently
\n\tassailed both the impugned orders.  It is submitted that the learned
\n\tJudicial Magistrate has erred in going into the question of title
\n\twhile deciding the application under Section 451 of the Code.  It is
\n\turged that as the custody of the tractor had been voluntarily given
\n\tby the respondent No.2 to the petitioner, the learned Judicial
\n\tMagistrate ought to have directed that the possession of the tractor
\n\tbe handed over to the petitioner.  It is submitted that, in any
\n\tcase, the tractor in question had been seized from his custody and
\n\tas such, ought to have been handed over to the petitioner.  In
\n\tsupport of the said contention, reliance has been placed upon a
\n\tdecision of the Supreme Court in the case of  Rajendra Prasad
\n\tv. State of Bihar and another,
\n\t2001(10) SCC 88.  The learned advocate for the petitioner has also
\n\tplaced reliance upon a decision of the Kerala High Court in the case
\n\tof Biju v. Sub-Inspector of Police, Pavaratty Police Station
\n\tand others,
\n\t1998 Cri.L.J. 1927, wherein temporary custody of the vehicle had
\n\tbeen granted to the person from whom it was seized, to contend that
\n\tin the facts of the present case also, the vehicle had been seized
\n\tfrom the petitioner and as such, the temporary custody of the
\n\tvehicle was required to be granted to the petitioner.
\n\tIt is further submitted out that if the version of the complainant
\n\tis believed, his ownership could not have been believed.\n<\/p>\n
It
\n\tis next contended that the learned Additional Sessions Judge has
\n\terred in holding that the order passed by the learned Judicial
\n\tMagistrate on the applications made under Section 451 of the Code
\n\twas an inter-locutory order and hence, revision is not maintainable.
\n\t It is pointed out that it is settled legal position, as held by
\n\tthis Court in the case of Jashwantsinh Punjabhai Parmar v.
\n\tDolatsinh Somabhai Chauhan and others<\/a>, 1980(2) GLR 281, that
\n\tagainst an order passed under Section 451 of the Code granting
\n\tinterim custody, revision is maintainable.  It is pointed out that
\n\tdespite holding that the revision application was not maintainable,
\n\tthe learned Additional Sessions Judge had gone ahead and decided the
\n\tmatter on merits.  It is submitted that once it is held that
\n\trevision is not maintainable, the learned Additional Sessions Judge
\n\tcould not have gone into the merits of the case.  It is,
\n\taccordingly, urged that the impugned order passed by the learned
\n\tAdditional Sessions Judge be quashed and set aside and the matter be
\n\tremanded for fresh consideration on merits.\n<\/p>\n
On
\n\tfacts, it is submitted that both the Courts below have failed to
\n\tappreciate that M\/s T.K.Tractors was a sub-dealer. The disputed
\n\ttractor was given to M\/s T.K.Tractors as demo-piece which was not
\n\tmeant for sale. Therefore, there was no question of Kalpeshbhai
\n\tselling the said tractor, that too in his individual capacity to the
\n\tpresent respondent No.2.  It is argued that the tractor was allotted
\n\tto the present petitioner on 28th February, 2007 for
\n\twhich the petitioner paid approximately Rs.3,09,399\/-, however, the
\n\tsaid tractor has been sold to the respondent No.2 for a sum of
\n\tRs.2,20,000\/- in cash and a sum of Rs.1,00,000\/- was to be paid in
\n\tcash after a period of one year.  It is contended that the aforesaid
\n\tfact itself disentitles the respondent No.2 from possession of the
\n\tdisputed tractor.  It is submitted that the complainant has
\n\tpurchased the tractor on 3rd April, 2007 by virtue of an
\n\tagreement executed on a stamp paper of Rs.100\/- which is not even
\n\tnotarized or stamped, hence, the Courts below have erred in holding
\n\tin favour of the respondent No.2.\n<\/p>\n
This
\n\tCourt has considered the submissions advanced by the learned
\n\tadvocate for the petitioner and has perused the record of the case.
\n\tAs can be seen from the impugned order dated 10th
\n\tDecember, 2007 passed by the learned Judicial Magistrate, it was the
\n\tcase of the respondent No.2 before the learned Judicial Magistrate
\n\tthat, on 3rd April, 2007, the respondent No.2 ?
\n\tcomplainant had purchased the disputed tractor on payment of
\n\tRs.2,20,000\/- in cash at the relevant time and a sum of
\n\tRs.1,00,000\/- was to be paid subsequently.  The accused Kalpeshbhai
\n\thad assured the respondent No.2 that the RTO passing of the tractor
\n\twould be done within a period of one month.  In the meanwhile, on
\n\t2nd June, 2007, at night, the petitioner ?\n<\/p>\n
\tGhanshyamsinh as well as Ashok Bhanjibhai, who is a head-strong
\n\tperson, had forcibly taken possession of the disputed tractor.  The
\n\trespondent No.2 had lodged a complaint against them before the
\n\tpolice, however, the police had not registered the same.  After
\n\tseveral representations in this regard, the complaint had been
\n\tregistered on 13th June, 2007, but the petitioner
\n\tGhanshyamsinh and the said Ashoksinh were not arraigned as accused.
\n\tIt was contended that the role of the police is also suspicious.
\n\tThat the respondent No.2 had addressed several letters by Registered
\n\tA.D. Post to different authorities and informing them that he is a
\n\tbonafide purchaser of the tractor in question.  It was contended
\n\tthat the sale letter produced by the petitioner does not indicate
\n\tthat the tractor was a demo-piece.  It was the case of the
\n\trespondent No.2 that, in case the accused Kalpeshbhai has not paid
\n\tthe price of the tractor to the petitioner, that was a matter of
\n\tdispute between the accused and the petitioner herein, and that the
\n\trespondent No.2 had no concern with the same.\n<\/p>\n
The
\n\tlearned Judicial Magistrate, after considering the submissions of
\n\tboth the parties, has found that the tractor in question initially
\n\twas of the ownership of Gurukurpa Tractors of Jamnagar. The accused
\n\tKapeshbhai Punambhai Doshi had purchased the same from it.  The
\n\tpetitioner has produced a delivery challan No.43 in this regard.
\n\tThe accused had sold the tractor to the respondent No.2 and
\n\tthereafter, the petitioner had taken away the tractor from the
\n\trespondent No.2 on 2nd June, 2007.  The learned Judicial
\n\tMagistrate was of the view that when different parties are claiming
\n\tthe muddamal, firstly the question of ownership is required to be
\n\tgone into.  The learned Judicial Magistrate has noted that the
\n\tpetitioner is a dealer of tractors and the accused Kalpeshbhai Doshi
\n\twas his sub-dealer, whereas the respondent No.2 – complainant was
\n\tthe purchaser of the tractor.  Upon perusal of the documents on
\n\trecord, the learned Judicial Magistrate has found that the dealer
\n\thad given delivery of the tractor to the sub-dealer on 27th
\n\tMarch, 2007 and the sub-dealer had sold the vehicle to the
\n\trespondent No.2 on 3rd April, 2007.  Thus, prima facie,
\n\tthe ownership rights have passed from the dealer to the sub-dealer
\n\tand then, to the purchaser of the vehicle.  Thus, like any other
\n\tordinary vehicle, the muddamal vehicle has also reached the
\n\tpurchaser through the proper channel.  Thus, the ownership appears
\n\tto have vested in the respondent No.2 purchaser.\n<\/p>\n
As
\n\tregards the possession of the tractor, the learned Judicial
\n\tMagistrate has observed that it is an admitted fact that the
\n\tpetitioner had taken away the muddamal tractor from the respondent
\n\tNo.2 on 2nd June, 2007. However, at that point of time,
\n\tthe petitioner did not have any ownership rights over the said
\n\tvehicle, thus, it can be said that the petitioner had taken away the
\n\tvehicle on 2nd June, 2007 without any right or title over
\n\tthe same.  The learned Judicial Magistrate has further observed that
\n\tthe tractor had been sold by the petitioner to the sub-dealer who
\n\twas required to pay the entire sale consideration within a period of
\n\t30 days, and in case the said amount was not paid, the petitioner
\n\twould be able to take back the tractor.  However, in the facts of
\n\tthe present case, it is not the case of the petitioner that the said
\n\tKalpeshbhai has not paid the sale consideration.  Moreover, no
\n\taction has been taken for taking back the tractor within 30 days. In
\n\tthese circumstances, it can be presumed that the sale consideration
\n\thas been paid.  Moreover, in case the amount has not been paid, the
\n\tpetitioner can initiate suitable action against the accused
\n\tKalpeshbhai, however, the complainant being a bonafide purchaser,
\n\tthe petitioner could not have directly taken possession of the
\n\ttractor from him.  For the aforesaid reasons, the learned Judicial
\n\tMagistrate has held that the respondent No.2 was a poor
\n\tagriculturist who had purchased the tractor for agricultural
\n\tpurposes; if the tractor is not handed over to him and remains in
\n\tthe police station, the machinery of the tractor is likely to be
\n\tdamaged and non-return of the muddamal would cause injury to the
\n\trespondent No.2, which cannot be compensated in terms of money.  The
\n\tlearned Judicial Magistrate, therefore, prima facie found that the
\n\trespondent No.2 is entitled to the possession of the tractor in
\n\tquestion and ordered accordingly.\n<\/p>\n
The
\n\tlearned Additional Sessions Judge, Dhrangadhra vide the impugned
\n\timpugned order dated 11th January, 2008 agreed that the
\n\torder passed by the learned Judicial Magistrate on merits and found
\n\tno reason to intervene. However, the learned Additional Sessions
\n\tJudge also held that the order passed by the learned Judicial
\n\tMagistrate First Class was an interlocutory order and as such, a
\n\trevision was not maintainable against the same.  On the aforesaid
\n\tgrounds, the learned Additional Sessions Judge rejected the revision
\n\tapplication.\n<\/p>\n
\tThis
\n\tCourt in the case of Jashwantsinh Punjabhai Parmar v.
\n\tDolatsinh Somabhai Chauhan and others<\/a>,
\n\t1980(2) GLR 281 has held that an order under Section 451 of the Code
\n\tdirecting handing over of a vehicle cannot be said to be an
\n\tinterlocutory order and therefore, can be revised under Section
\n\t397(2) of the Code.  This Court has, in the case of Thakaar
\n\tMahendraprasad Bapalal and another v. The State of Gujarat and
\n\tanother, 1985 GLH 61, held
\n\tthat an order under Section 451 is qua interim custody, possession
\n\tand disposal of the muddamal property.  It cannot be said to be an
\n\tinterlocutory order not revisable by the High Court.  It was held
\n\tthat such an order cannot be said to be an interlocutory order, in
\n\tthat sense, it is an order which decides the substantial and
\n\timportant rights of parties, and, therefore, revision application
\n\tagainst such an order is maintainable.  In the circumstances, in the
\n\tlight of the view taken by this Court in the aforesaid decisions,
\n\tthe impugned order passed by the learned Additional Sessions Judge
\n\tis erroneous to that extent.\n<\/p>\n
\tThe
\n\tlearned advocate for the petitioner is also right in contending that
\n\tonce the learned Additional Sessions Judge had come to the
\n\tconclusion that the revision is not maintainable, he ought not to
\n\thave decided the case on merits.  However, what is required to be
\n\texamined is as to whether merely on that ground, the impugned order
\n\tpassed by the learned Additional Sessions Judge is required to be
\n\tset aside and whether the matter requires to be remanded for fresh
\n\tconsideration on merits.\n<\/p>\n
\tWhen
\n\ttwo parties have made competing claims as regards the ownership of
\n\tthe tractor in question for the purpose of claiming custody of the
\n\tsame under Section 451 of the Code, the same could have been decided
\n\tonly after examining the evidence on record and arriving at a prima
\n\tfacie finding regarding the ownership of the disputed vehicle.  In
\n\tthe circumstances, no infirmity can be found in the order of the
\n\tlearned Judicial Magistrate in  firstly, going into the issue of
\n\townership, and after recording a prima facie view that the
\n\trespondent No.2 is entitled to possession of the disputed tractor,
\n\tdirecting that the custody of the muddamal tractor be handed over to
\n\tthe respondent No.2.\n<\/p>\n
\tAs
\n\tnoted hereinabove, the learned Additional Sessions Judge had erred
\n\tin holding that the revision application was not maintainable.
\n\tHowever, at the same time, the learned Additional Sessions Judge has
\n\talso upheld the order of the learned Judicial Magistrate on merits.
\n\tIn the circumstances, when this Court is in agreement with the
\n\treasoning adopted by the learned Judicial Magistrate, which has been
\n\tupheld by the learned Additional Sessions Judge, no fruitful purpose
\n\twould be served by remanding the matter to the learned Additional
\n\tSessions Judge, as prayed for by the learned advocate for the
\n\tpetitioner, except that there would be another round of litigation.\n<\/p>\n
\tFor
\n\tthe foregoing reasons, this Court does not find any merit in the
\n\tpetition so as to warrant any intervention by this Court.  The
\n\tpetition is, accordingly, dismissed in limine.\n<\/p>\n
[HARSHA
\nDEVANI, J.]<\/p>\n
parmar*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Gurukrupa vs State on 30 June, 2008 Author: H.N.Devani,&Nbsp; Gujarat High Court Case Information System Print SCR.A\/116\/2008 11\/ 11 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 116 of 2008 ========================================== GURUKRUPA TRACTORS THRO GHANSHYAMSINH R. GOHIL – Applicant(s) Versus STATE OF GUJARAT & 1 – Respondent(s) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-190433","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nGurukrupa vs State on 30 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gurukrupa-vs-state-on-30-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gurukrupa vs State on 30 June, 2008 - 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