ORDER
A.L. Vaidya, J.
1. A criminal case vide F.I.R. No. 97 of 1993 under Section 379/34, I.P.C. for removal of the vehicle under reference from the possession of Suresh Kumar, respondent No. 2 was registered against the present petitioner, Krishan Lal and four other persons, named, S/Shri Onkar Chand, Vish-wanath, Surinder Kumar and Prem Chand in June, 1993 at Police Station, Bilaspur. The vehicle under reference was taken into possession during investigation by the police. The present petitioner as well as respondent No. 2 submitted separate applications under Section 457, Cr. P. C. for the release of that vehicle which happened to be a Maruti Van No. HPY-848.
2. The learned Chief Judicial Magistrate, Bilaspur, after hearing the parties, ordered the release of the vehicle in question in favour of Shri Suresh Kumar, if not required in any other case. That too on Suresh Kumar's furnishing a bond in the sum of Rs. two lacs with one surety of the like amount undertaking to produce the vehicle if and when required during the investigation or trial of the case. The petitioner's prayer for release as such was disallowed.
3. Before appreciating the rival parties' claim for the release of the vehicle, the facts and circumstances on record giving rise to the counter-claims by the respective party requires to be detailed out.
4. Admittedly, Krishan Lal was the owner in possession of the vehicle and even till today, registration certificate remains in his name. On 28-9-1992, Krishan Kumar entered into an agreement (Annexure P-2) with Shri Suresh Kumar, respondent No. 2 pertaining to the vehicle under reference. Shri Krishan Lal on the basis of this agreement agreed to sell the said vehicle to the second party i.e. in favour of Shri Suresh Kumar who agreed to purchase the same. It was referred in the agreement that the vehicle was hypothecated with the Central (sic) Sundernagar, District Mandi, Himachal Pradesh and the registration certificate of the said vehicle could not be transferred in the name of the second party and it was also averred in the agreement that the first party had agreed to sell the vehicle to the second party for Rs. 95,500/ - on the terms and conditions referred in the agreement which are detailed as under:-
'1. That the first party has to receive a sum of Rs. 25.000/- from the second party.
2. That the first part of the agreement has to pay the loan of the vehicle to the Bank loan amount to Rs. 38,200/- is due which the second party has undertaken to pay according to the loan agreement a monthly of Rs. 2000/ -per month is payable.
3. That the remaining balance amount, i.e. Rs. 32.300/- will be paid by the second party to the first party on or before 15 November, 1992.
4. That the second party fails to pay regular instalment to the bank and to pay the remaining amount i.e. Rs. 32,300/- to the first party in that event the advance amount given by the second party to the first party shall be forfeited in favour of the first party and the first party is entitled for the recovery of the vehicle and the second party shall have no claim of advanced amount.
5. That the second party shall not transfer the vehicle to any other party till the whole amount of loan is liquidated.
6. That the possession of the vehicle has been handed over to the second party and from today onwards it shall be responsible for all the accidents police challan, taxes or any other risks of the plying of the vehicle.
7. That the first party shall be liable to transfer the Registration Certificate on the name of second party after the payment of whole consideration. The expenses at the time of transfer of vehicle at the time of registration of second party.'
The agreement was signed by both the parties. The aforesaid conditions of agreement have been reproduced in verbatim as detailed in Annexure P-2.
5. There is no dispute regarding the execution of this agreement.
6. On the basis of the aforesaid agreement and as per case put up by the second party, a sum of Rs. 25,000 / - was paid by second party to Krishan Lal and thereafter the second party agreed to liquidate the loan of vehicle amounting to Rs. 38,300/- which the first party had raised as a bank loan and that was to be paid at the rate of Rs. 2,000/ - per month by the second party. The remaining amount of Rs. 32,300/-, the second party agreed to pay to the first party on or before 15-11-1992. On the basis of the said agreement, possession of the vehicle had been handed over to the second party and it was agreed that onward, second party shall be responsible for all the accidents, police challans, taxes or any other risk of the plying of the vehicle. On default of the remaining amount of Rs. 32,300/- in favour of the first party, it was agreed that the amount given by the second party shall be forfeited in favour of the first party and the first party shall be entitled for the recovery of the vehicle and the second party shall have no claim of advanced amount.
7. It appears that dispute arose between the parties and as a consequence thereof, the second party filed a suit for specific performance of the agreement dated 28-9-1992 with a prayer of mandatory injunction directing the defendant, Krishan Lal to hand over the registration certificate of the said vehicle and to receive the balance amount of Rs. 32,300/- from the plaintiff and to execute a general power of attorney in favour of the plaintiff of the abovementioned vehicle. The judgment passed by the Senior Sub-Judge, Bilaspur is Annexure P-1 on record which is dated 23-6-1993. The Court at Bilaspur came to the conclusion that Bilaspur Court has got no jurisdiction to entertain and decide the case inasmuch as the agreement was executed at Sundernagar and in consequence of this agreement, the transaction was to follow at Sundernagar and this agreement was partly performed at Sundernagar and accordingly Senior Sub-Judge, Bilaspur under Order 7, Rule 10, Cr. P. C. ordered the return of the plaint to be presented in the Court having competent jurisdiction. The said order passed by the Senior Sub-Judge, Bilaspur revealed that the plaintiff, Suresh Kumar had alleged violation of the conditions of the agreement by Shri Krishan Lal and as a consequence thereof, the suit was filed.
8. The suit was still pending and on 18-6-1992, the occurrence took place and on the basis of the report made by Suresh Kumar, the aforesaid criminal case against the present petitioner and other co-accused persons was registered. On the basis of the report made by Suresh Kumar, it was recorded that on 18-6-1993, when the informant came to his house at night and when he turned his vehicle down below his house and the time was 2.00 at night, he noticed three persons and in order to find out what those persons proposed to do, he stopped the vehicle and started watching their movements. He noticed that one of the persons out of those three, went towards the I.T.I. gate and after sometime, a Fiat taxi came from the nullah side wherefrom two persons came out and one took the battery of the vehicle and one went towards the nullah. The movements of these persons aroused some suspicion in the mind of the informant and he suspected that the vehicle which he had purchased might not be taken away by these persons. When he went along with car, he saw that the Car No. HPY-848 which he had taken into possession under the agreement referred to above was parked there and four persons were standing thereby. The informant wanted to ask them, but in the meantime, all the persons pounced upon the informant and in order to defend himself, the informant raised cries and the three persons who were having a knife and stick, ran away from there and he caught the fourth person from his shirt, but that person also ran away. The shirt was torn and it remained in the hand of the informant. Anyway, the case was registered and the four accused named above during investigation were connected with the alleged offence.
9. This Suresh Kumar during investigation handed over the vehicle under reference to the police.
10. It is in the aforesaid background of the circumstances that the present petitioner and Suresh Kumar had moved the trial Court for the release of the vehicle and the trial Magistrate ordered the release of the vehicle in favour of Suresh Kumar.
11. Shri Krishan Lal has assailed the aforesaid order on various grounds.
12. I have heard the learned counsel for the parties and have also gone through the record.
13. Section 457 of the Code of Criminal Procedure runs as under:-
'457. Procedure by police upon seizure of property.-
(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.'
14. The Magistrate under the aforesaid provision of law can order the delivery of the property to the person entitled to possession thereof. The sole criteria in whose favour the property is to be released is the entitlement to the possession of that property. There is nothing in the aforesaid provision of law that it is the owner or somebody else in whose favour such an order could be passed. The sole test is the legal entitlement to the possession of that property.
15. Learned counsel for the petitioner has very strongly contended that the said proposition regarding the entitlement of the possession of property has been laid at rest by a case decided by this Court, Sardara Singh v. Nur Ahmed, (1992) 1 Sim LC 334.
16. In this Sardara Singh's case supra, the facts were that one Mohammed Amin was the registered owner of a motor vehicle (truck No. HID-4966), and under a hire purchase agreement, the truck was purchased by obtaining loan from the Canara Bank, Mandi. On 12-2-1990, an agreement for the sale of the vehicle aforesaid was entered between Mohammad Amin through his special power of Attorney-holder Nur Ahmad and Sardar Singh and Prem Lal Kapoor. Under the agreement, the vehicle was to be sold to these two persons for a total of Rs. 1,72,000/- out of which Rs. 37,000/- was paid to the seller by way of advance and the remaining amount of Rs. 1,35,000/- was to be paid by the applicants to the Canara Bank, Mandi in equal monthly instalments already fixed by the bank starting from March, 1990.
17. Clause 2 of this agreement referred to above, says that:
'the ownership of this vehicle will remain in the name of the first party (Mohammad Amin) along with route permit and other documents till the full and final payment of the bank is cleared by the second party (Sardara Singh and Prem Lal Kapoor) and thereafter the second party can get the vehicle transferred in their name for which a separate power is given for the transfer of the vehicle after obtaining NOC from the bank.'
18. Under Clause 5 of the aforesaid agreement, the right of resumption of possession of the vehicle was given to the first party in the event of the second party making default in payment to the bank continuously for three months.
19. In the aforesaid case, F.I.R. was lodged at Police Station, Sundernagar alleging that Nur Mohammad had committed theft of the vehicle which was in lawful custody of Sardara Singh and Prem Lal Kapoor. The S.H.O. Sundernagar impounded the vehicle in connection with that criminal case and thereafter an application for release of the vehicle was submitted by Nur Ahmad at one hand and by Sardara Singh and Prem Lal Kapoor on the other hand. Para 16 and Para 17 of the aforesaid judgment are very much relevant which are reproduced hereunder :-
'16. Even in case where the view taken is that the motor vehicle should be released in favour of the person in whose name it is registered under the provisions of Motor Vehicles Act, the basic factor taken into account was one of the ownership of the vehicle. It appears clear that preponderance of judicial opinion leans in favour of finding out, though in a summary manner, the person in whom the ownership vests before directing its release under Section 457, Cr. P. C. on the ground that he is the person entitled to the possession thereof. The fact that the vehicle is registered in the name of such a person is no more than evidence of ownership in a summary inquiry by the Court.'
'17. What is not in dispute in this case, on facts, is that the registration certificate of the truck is in the name of Mohammad Amin whose special power of attorney-holder is Nur Ahmad. Further Mohammad Amin, so far, is the owner of the truck. The fact that physical possession of the truck was with Nur Ahmad when it was taken into custody by the police, is also not in dispute, though it has been urged by Shri D. C. Sharma learned counsel for the present applicants, that his possession was as a consequence of an offence of theft committed by him. Whether it was so, is yet to be finally determined by the learned Magistrate at the trial.'
20. Needless to say, an order under Section 457, Cr. P. C. For the release of the property has to be made considering the facts and circumstances prevailing in a particular case. In this case, Sardara Singh and another supra, the facts as borne out from the judgment are quite distinct and with those facts in hand, this Court disposed of the petition in favour of Nur Ahmad. However, on the other hand, the facts of the case under reference are quite in variance with the above reported case.
21. In the case under reference, the vehicle was recovered from the possession of Shri Suresh Kumar, who produced the same during investigation to the police, while in the reported case, it was recovered from Nur Ahmad who was the registered owner. In the present case, the agreement of sale has been detailed with all the rights and liabilities of the parties, but in the case supra, a few of the clauses have been referred. In the case under reference, the second party i.e. Suresh Kumar had filed a civil litigation for specific performance of the agreement along with other reliefs referred to above, but in the reported case, no such civil dispute was pending between parties. Moreover, in the present case, it was during the pendency of the civil litigation that the present petitioner along with his co-accused were alleged to have committed the offence by removing the vehicle from the lawful custody of second party. Apart from that in the case under reference, agreement was executed on 28-9-1992 and the suit was filed on 17-11-1992 on the allegations that the first party had violated the conditions of the agreement. The occurrence took place on the intervening night of 18th/19th June, 1993.
22. The possession of the vehicle at the time of occurrence was with the second party and that too on the basis of the agreement to sell as detailed above. There is no doubt that as per condition No. 4 of the agreement, the first party was entitled for the recovery of the vehicle and the second party in default of payment of instalments was to have no claim to advanced amount. It may be referred here that under condition No. 3, the remaining balance amount of Rs. 32.300/- was to be paid by the second party to the first party on or before 15-11-1992.
23. It has been the case of the second party that he offered this payment of Rs. 32.300/- to the first party, who refused to accept the same and thereafter he did not make the payment of instalment to the bank and went to the civil Court to seek the necessary relief.
24. In case the present petitioner's stand at this stage is accepted, that it was second party who did not perform its part of the contract and, therefore, under the agreement, first party was entitled to recover the vehicle it would be in a way deciding the rights of the parties which arise out of the aforesaid agreement in the present proceedings which is not at all the scope of such like proceedings, wherein only the entitlement of a party to the lawful possession of the vehicle is to be gone into. In this view of the matter, I do not find any illegality in the order under reference passed by the lower Court below which requires no interference.
25. However, at this stage, there is another unreported case decided by this Court on 14-1-1993 in Criminal Revision Petition No. 126 of 1992 Daljeet Singh v. Subodh Kumar. In this case, the facts were that after obtaining a loan from the Central Bank of India, Haroli, District, Una, of Rs. 1,10,000/-in August, 1989, the petitioner along with one Mihman Mull agreed to transfer a tractor in favour of respondent No. 1 for a consideration of Rs. 1,15,000/- and as a consequence thereof, a sum of Rs. 15,000/- was received by the petitioner and Mihman Mull, Rupees 35,000/- was agreed to be paid by 31st August, 1990 and the balance amount was to be deposited by respondent No. 1 towards the . petitioner's liability to the bank. The facts subsequent to this are somewhat in dispute and according to respondent No. 1, on 29th August, 1990, a sum of Rs. 30,000/- was deposited with the bank and the tractor in question was sold to him. The balance amount of Rs. 70,000/- along with Rupees 1,200/- towards interest were to be deposited in the bank. Possession of the tractor was, admittedly, handed over to respondent No. 1 on 25th July, 1990. Thereafter, in the month of March, 1991, the petitioner took the tractor from the custody of respondent No. 1 as, according to him, he had failed to deposit the amount towards bank instalments. On 12th June, 1991, the report was lodged by the petitioner with Police Station, Sadar Una on the basis of which F.I.R. No. 185 of 1991 was registered wherein it was stated that the tractor which was in his possession since March, 1991 had forcibly been taken away by respondent No. 1. The tractor was recovered from the custody of respondent No. 1. On an application made for release of the tractor the Chief Judicial Magistrate, Una on 17th June, 1991 made an order releasing the custody of the tractor in petitioner's favour on Sapur-dari. This order was challenged by the first respondent by filing a revision before the Sessions Judge, Una and on 15-1-1992, the Addl. Sessions Judge, Una, set aside the order and directed the Chief Judicial Magistrate to decide the petitioner's application afresh after considering the objections of respondent No. 1. On 24-1-1992, the Chief Judicial Magistrate, Una, again allowed the petitioner's application after rejecting the objections of respondent/No. 1 and directed the tractor to be released in petitioner's favour on furnishing a Sapurdari bond in the sum of Rs. 1,50,000/-. The respondent again challenged this order by filing a revision. On 22-12-1992, Addl. Sessions Judge, Una, allowed the revision of respondent No. 1 and set aside the order passed by the Chief Judicial Magistrate, Una and directed the release of tractor in favour of respondent No. 1 on Sapurdari bond on similar terms and conditions on which it was released to the petitioner.
26. Brother Devinder Gupta, J. who decided the aforesaid unreported case observed that the grievance of the petitioner was that respondent No. 1 did not adhere to the terms of the agreement dated 25th July, 1990 by paying Rs. 35,000/- by 31st August, 1990 to him and thereafter failed to pay the due instalments to the bank in February, 1991 and consequently in terms of the agreement he was right in taking away the tractor from the first respondent's custody. It was also observed that respondent No. 1 placed on record a photostat copy of the agreement dated 29th August, 1990, which, on the face of it, shows that the petitioner sold the tractor to respondent No. 1 for Rs. 1,15,000/-, out of which Rs. 15,000/- was stated to have been paid to the petitioner on 29th July, 1990 and another sum of Rs. 30,000/- deposited in the bank on the date of execution of the document, namely, 29th August, 1990. The balance amount of Rs. 70,000/- along with Rs. 1200/- towards interest was agreed to be deposited in the bank in instalments.
27. It was held in the aforesaid case that no doubt the certificate of registration is a prima facie evidence of title of the vehicle but this prima facie presumption is rebuttable one. It was further held that the vehicle was agreed to be sold to respondent No. 1 and in pursuance to the agreement possession was delivered to the respondent. Therefore, the question as to whether the terms of the agreement have been complied with or not or on 29th August, 1990, vehicle in fact was sold are the serious disputes between the parties and it was further observed that having parted with the possession in favour of respondent No. 1, the mere fact that no intimation was given by the petitioner or by respondent No. 1 to the registering authority cannot have the effect of depriving respondent No. 1 to continue retaining the possession of the tractor. The learned Judge further observed that in case of any dispute, as rightly concluded by the Addl. Sessions Judge, about non-payment of remaining amount or of any additional amount, the same could be agitated in civil Court but prima facie respondent No. 1 was found to be in possession of the vehicle on the basis of the agreement and the learned Addl. Sessions Judge took these factors into consideration. It was, therefore, held that no jurisdictional error in the order passed by the Addl. Sessions Judge could be there. The revision petition was accordingly dismissed.
28. In the case under reference also, the facts are more or less akin to the aforesaid unreported case.
29. Where parties had entered into an agreement, that agreement would be the base to determine their rights and liabilities. In the present case, it is an admitted fact that civil litigation arising out of that agreement had been instituted by one of the party as referred to above. In case the petitioner had any right to recover back the possession of the vehicle, that cause of action arose to him much earlier, but he did not do anything. The suit was filed in November, 1992 and uptil 18th/ 19th June, 1993 since the execution of the agreement, the vehicle remained under the legal possession of the second party and it was all of a sudden that during odd hours of the night the petitioner along with other co-accused have been alleged to have committed that offence. As per allegations made by the second party in this criminal case, the first party has tried to take law in his own hands and simply because the registration certificate was in the name of the first party, he will not be legally entitled under the circumstances of the present case on that sole ground for the release of the vehicle which has been under the agreement under lawful custody of the second party.
30. In view of the foregoing reasons, I, do not find any illegality in the order under reference which has been passed after correctly appreciating the law and facts in this particular behalf by the Chief Judicial Magistrate, Bilaspur. The present revision petition being devoid of any merit is accordingly dismissed.