Chagan Lal Vs. Shyam Lal and ors. - Court Judgment

Excerpt:
criminal procedure code - section 451--custody of property pending trial--'s' was in possession of tractor--disposed by 'c without his consent--documents proving that 's' was paying tax and bank dues of tractor--held, judicial magistrate rightly passed order for interim custody of tractor in favour of 's'.;prima facie jagdish or chhaganlal came into possession of the tractor not with consent of shyamlal but otherwise. there was material in investigation that chhaganlal had transferred this tractor to madanlal under a stipulation that the registration will also be transferred after the discharge of the bank dues. there were documents to show that shyamlal had been paying the tax of this tractor since 1982 and had also got repaired the tractor. he had also paid an amount of rs. 8000/-, to the central bank of india on march 26, 1982. in such circumstances, the chief judicial magistrate, jhalawar has passed the right order that the tractor and trolly bearing the numbers aforesaid should be handed over to the interim custody of shyamlal.;petition dismissed - - he has placed strong reliance upon the decision, of, a, single blench of this court in allarakh v. secondly in that case the financier had terminated the hire purchase agreement and had seized the truck in exercise of his bonafide right of seizing the truck on the failure of satyadeo tripathi to pay the third monthly instalment in time.navin chandra sharma, j.1. petitioner chhaganlal has invoked the inherent powers of this court under section 482 cr. p.c. to quash an inteslocutory order passed by the chief judicial magistrate, jhalawar on may, 19 1982 regarding the interim custody of a tractor no. rjo 1217 and its trolly no. rjo 1218 pending the conclusion of the inquiry and trial of a case registered at police station, jhalarapatan on first information lodged by smt. basanti bai wife of laxmi narain.2. facts, in brief, as alleged in the petition are that smt. basanti bai wife of laxminarain lodged a first information report on april 20, 1982 at police station. jhalara patan alleging that eight months prior to that, the aforesaid tractor with its trolly were purchased in the name of her son shyam lal. while this tractor and trolly were engaged in transporting bajri from the river kali sind, the same was snatched away from its driver by jagdish who is son of the petitioner chhaganlal. on this report the police registered a case under section 379 and 341 i.p.c. against jagdish and the tractor with its trolly was seized from the petitioner's house. for the interim custody of this tractor and trolly, three claimants came forward before the chief judicial magistrate jhalawar and they were the petitioner, shyamlal son of smt. basanti devi and central bank of india, jhalarapatan. chhaganlal claimed custody of the tractor and the trolly on the ground that he was the registered owner of this tractor and all the papers relating to these vehicles were in his name and further hypothecation papers from the bank were also in his name and he had still to discharge the outstandings of the bank. the central bank claimed for the interim custody on the ground that it had advanced loan on the hypothecation of this tractor & trolly and they were hypothecated with the bank and the bank is entitled to retain them till their debt was discharged. claim of shyamlal for interim custody was that he had purchased this tractor from madanlal who had purchased the tractor from chhaganlal and the sale documents had been produced before the police during the course of investigation. at the time the incident occurred, the tractor was in possession of shyamlal. there had also been an accident in which the tractor was seized and it has handed over to shyamlal by the judicial magistrate, jhalawar for interim custody. he also got the tractor repaired. he has been paying the dues of the bank also and, therefore, he was most proper person to whom the interim custody should be given of the tractor and the trolly. the chief judicial magistrate, jhalawar, after hearing the three claimants, passed the impugned order for giving the tractor and the trolly in the custody of shyam lai pending the conclusion of the inquiry and trial.3. mr. sayed manjoor ali appearing for the petitioner chhaganlal strongly urged that chhaganlal was the registered owner of the tractor and the tractor should have been handed: over, in the custody of chhaganlal under section 451 of the criminal procedure, code. he also urged that the dispute between shyamlal and chhaganlal relating to this tractor; was of civil nature and as a matter of fact the entire criminal proceeding launched against his son were not maintainable in a criminal court. he has placed strong reliance upon the decision, of, a, single blench of this court in allarakh v. state and anr. reported in 1982 cr.lr, (raj.) 169 and also upon the decision of the supreme court in sardar trilok singh v. satyatfeo tripathi reported in 1974 cr.lr (sc) 86. i have, gone through both the decisions. the facts in allarakh's case were that one asgar, all was the registered owner of truck no. rjz 1871 and chasis number of the said truck was 312056, 1602344. asgar ali was in need of some, finances and he, therefore, got the truck financed from the rathore finance corporation, pali and an amount of rs. 17,500/-was taken under a higher purchase agreement. allarakh was a guarantor for the payment of this amount by asar ali it, was alleged that few instalments could not be paid, and therefore, the truck was given to allarakh under an oral agreement that allarakh will pay rs. 200/- per day till such time as the entire loan of the financier is wiped out it was alleged that the entire loan was paid off by allarakh and, therefore, in order to deprive asgar ali of the truck, and its income, allarakh get the chasis number and engine number erased and gave out that he had purchased truck from one avtarsingh who in turn had purchased it from army disposal and be got fresh registration certificate of the truck from the rtq jodhpur who assigned it registration no, rsn 2898. asgar ali filed a report and after investigation a charge-sheet was filed against ailarakh under sections 420 and 467 of the indian penal code. the truck was seized from the custody of allarakh by the police. on these facts, it was held by his lordships m.b. sharma, j. that allarakh was the registered owner of the truck & prima facie it appeared that he had purchased it from avtar singh. he, therefore, allowed the application of aharakh and directed that the truck may be given in the custody of aharakh on 'supardginama'. claim of asgar ali was dismissed. if the facts in aharakh's case and the present case are correctly marshalled, it would appear that this decision does not help the petitioner. one of the important point to be noted is that in allarakh's case, the charge-sheet was filed against aharakh for the offences under sections 420 and 467 i.p.c. in the present case, the offences under sections 379 and 341 i.p.c. have been registered against jagdish son of the petitioner and the first report was that jagdish had committed theft of the tractor and the trolly from the possession of shyamlal. without expressing any opinion about the merits of the case & without giving any guidance to the trying court regarding the commission of the offence, academically and legally it is stated that for the commission of theft all that is necessary is that any movable property should be taken by any person dishonestly from out of the possession of any person without that person's consent. commission of theft consists in moving an immovable property of a person out of his possession without his consent with a dishonest intention. even temporary dispossession may constitute theft. where the taking of movable property is in the assertion of a bonafide claim of right, the act though it may amount to civil injury, may not fall within the offence of theft. in allarakh's case there were two persons claiming themselves to be the registered owners of the truck, one was asgar ali. he was registered owner of truck no. rjz 1871. the other aharakh has claimed to be registered owner of truck no. rsn 2398. it was not possible to say at the moment when allarakh's case was decided that before the erasor the cbasis number and engine number were the same as claimed by asgar ali. inthepresentcase.it has been mentioned by the chief judicial magistrate that the tractor and thetrolly were in possession of shyamlal before the alleged offence of theft was committed.the tractor & the trolly were seized from the possession of jagdish or house of his father chhaganlal, on those facts, prima facie jagdish or chhaganlal came into possession of the tractor not with consent of shyamlal but otherwise. there was material allegation that chhaganlal had transferred this tractor to madanlal under a stipulation that the registration will also be transferred after the discharge of the bank dues. there were documents to show that shyamlal had been paying the tax of this tractor since 1982 and had also got repaired the tractor. he had also paid an amount of rs. 8000/-, to the central bank of india on march 26, 1982. in such circumstances, the chief judicial magistrate, jhalawar has passed the right order that the tractor and the trolly bearing the numbers aforesaid should be handed over to the interim custody of shyamlal.4. so far as the decision of their lordships of the supreme court in sardar trilok singh's case is concerned, the facts of that case are not at all applicable to the present case. that case, firstly, did not relate to the question of interim custody because in that case it was prayed that on the facts and circumstances of the case, only a civil liability was created and no criminal offence what so ever was made out. such a question does not call for determination in this petition of the petitioner. secondly in that case the financier had terminated the hire purchase agreement and had seized the truck in exercise of his bonafide right of seizing the truck on the failure of satyadeo tripathi to pay the third monthly instalment in time. trilok singh's case, therefore, does not help in the determination of the question involved in this petition.5. i, therefore, do not find any merit in the petition and do hereby dismiss the same.