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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.B. Vagyani, J.
Jagannath Bapu Shirsat.... Petitioner.
Versus
State of Maharashtra another.... Respondents.
Criminal Writ Petition No. 98 of 1999, decided on 17-3-2000.
Advocates appeared :
R.B. Raghuwanshi, for petitioner.
D.V. Tele, A.P.P., for respondent No. 1.
K.D. Bade Patil, for respondent No. 2.
Held, that the respondent No.2 had brought on record number of documents to support his claim for the custody of vehicle. From those documents, a legitimate inference could be drawn that there was a transaction of sale between the petitioner and the respondent No.2. The vehicle was movable property and, therefore, the transfer of ownership of movable 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 became complete. The respondent No. 2 was the owner of the vehicle in law. If the impugned order of Additional Sessions Judge was set aside, the order passed by the Judicial Magistrate First Class, which was unjust on the face of it, will revive. The petitioner cannot be allowed to take benefit of the said erroneous order. After having sold the vehicle, the petitioner had indulged in criminal case of theft of the vehicle to grab custody of the vehicle. Fraud and deceit ought not to benefit anyone. Unfortunately, this well settled principle had been completely divorced by the Judicial Magistrate. A right does not arise out of an injury caused to other. Under the circumstances, no interference was called for. The criminal writ petition in the circumstances- dismissed. 1983 (2) Crimes 601; 1989 (3) Crimes 715; 1991 (3) Crimes 783; 1980 Cr LJ 422; 1977 Mh LJ 656; 1991 Cr LJ 2053; 1991 Mh LJ 1371 : 1992 Cr LJ 2476; 1993 Cr LJ 3109; 1992 Cr LJ 723; AIR 1962 SC 1135; AIR 1988 SC 94, Rel.
Section 457-Under Section 457 of 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.
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 lea
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