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2013 Supreme(Bom) 1126
In the High Court of Bombay at Aurangabad
T.V. NALAWADE, J.
Satish s/o. Dhanmal Sanghavi
Versus
The State of Maharashtra & Another
Criminal Writ Petition No. 489 of 2011
Decided on : 25-06-2013
For the Petitioner:S.G. Dodya, Advocate.
For the Respondents:S.B. Pulkundwar, A.P.P., R2, P.P. Chavan, Advocate.
Headnote:Criminal Procedure Code, 1973 - Section 452 - Indian Penal Code, Sections 406 and 420 - Custody of vehicle (Bus). - Since documents on record shows that petitioner entered sale agreement with respondent-2 for sale of Bus purchased by him after availing hypothecation loan from accused society hence respondent-2 entitled to custody of Bus. - The record shows that the agreement of sale was executed by petitioner in favour of respondent No. 2, which was written on stamp paper purchased on 13.8.2009. The amount of Rs. 25 lakh was agreed consideration. The petitioner had undertaken to pay all taxes payable to R.T.O. and other offices. The documents show that T.T. form and other documents, which are required for transfer of the registration in favour of purchaser, were handed over by petitioner to respondent No. 2. There is copy of application given by petitioner to Credit Society in which he had informed that he was selling vehicle to respondent No. 2 for clearing the dues of the Society. Copy of affidavit sworn in before Executive Magistrate by the petitioner shows that the entire consideration was already received by him and he had executed documents in favour of respondent No. 2.
The documents show that on 14.8.2009 these documents were executed in favour of respondent No. 2 by the petitioner and on the same day, the payment of Rs. 25 lakhs was made in the loan account of petitioner. The case of petitioner that he had already singed some documents when loan was taken, cannot be accepted in such a proceeding in view of the aforesaid circumstances as the documents were created after purchasing stamp paper on 13.8.2009. In view of the aforesaid record and circumstances and that FIR was given after the period of more than one year, after creation of aforesaid documents, this Court holds that the respondent No. 2 made out prima facie case, but the petitioner could not make out any case in his favour. It appears that police also gave report under Section 169 of CrPC in view of the aforesaid circumstances.
1. The proceeding is filed for challenging common order made by Judicial Magistrate, First Class, Jalgaon in M.C.A. Nos. 686/2010 and 694/2010 and also to challenge the common judgment delivered by Jalgaon Sessions Court in Criminal Revision Nos. 51/2011 and 55/2011. The revisions were filed against the aforesaid common order made by J.M.F.C. Both the sides are heard.
2. The petitioner had taken loan from a Credit Society for purchasing Volvo bus No. MH-19/Y-4444. It is his case that he had repaid the entire loan amount, but the Credit Society had taken the custody of bus from him prior to that and Credit Society refused to give custody of vehicle to him. It is his case that he then gave report to police against Chairman and Directors of the Society and on the basis of report, the crime came to be registered for offences punishable under sections 406, 420 etc. of Indian Penal Code. The said vehicle came to be attached in the crime and the petitioner filed M.C.A. No. 686 of 2010 for interim custody of the vehicle in the said crime before J.M.F.C. The respondent No. 2 filed M.C.A. No. 694 of 2010 for similar relief. The respondent No. 2 contended that he had purchased the vehicle from the petitioner. The J.M.F.C. allowed the application of respondent No. 2 and rejected the application of petitioner.
3. It is the case of petitioner that he had deposited Rs. 25 lakh the amount which was due from him and after that, the Society ought to have handed over the custody of vehicle to him. It is his case that the Society misused some documents on which signatures were obtained by the Society at the time of giving of loan. It is his case that the documents like T.T. form etc. were signed by him at the time of taking loan.
4. The F.I.R. dated 2.12.2010 shows that the petitioner had admitted that the custody of vehicle was already taken over by the Credit Society. It is the case of Society and respondent No. 2 that the bus was purchased by taking hypothecation loan by the petitioner and he had committed default in making repayment of the loan. It is contended that the custody of bus was taken over by Society and then the petitioner had talk with respondent No. 2 and he agreed to sell the bus for consideration of Rs. 25 lakh. It is contended that for selling the vehicle, the petitioner applied to Society for permission. It is contended that on 13.8.2009 such permission was given by Society and then the transaction of sale was made on 14.8.2009. It is the case of respondent No. 2 and Society that respondent No. 2 deposited Rs. 25 lakh with Credit Society for the petitioner and then the documents were executed by the petitioner in favour of respondent No. 2.
5. It is the case of respondent No. 2 that when the transaction was made, the petitioner had misrepresented that there were no other dues as against the vehicle and he would clear the dues towards R.T.O. Office, if any. As there were dues in respect of R.T.O. Office, they refused to transfer the vehicle in the name of respondent No. 2. It is the case of respondent No. 2 that he gave report against the petitioner as false representation was made to him on 19.11.2010. It is contended that due to this development, the petitioner gave false report against Chairman and Directors of the Society. It is the case of respondent No. 2 that in view of the record of transfer of vehicle, the property in vehicle had transferred to respondent No. 2 and so, respondent No. 2 was entitled to the custody of vehicle.
6. This Court has perused the copies of documents produced by both the sides. The record shows that the agreement of sale was executed by petitioner in favour of respondent No. 2, which was written on stamp paper purchased on 13.8.2009. The amount of Rs. 25 lakh was agreed consideration. The petitioner had undertaken to pay all taxes payable to R.T.O. and other offices. The documents show that T.T. form and other documents, which are required for transfer of the registration in favour
