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2004 Supreme(Guj) 130
Gujarat High Court
Judgename :C.K.BUCH
KAMDHENU FINANCIAL SERVICES PVT.LTD. - Appellant
Versus
STATE OF GUJARAT - Respondent
CRIMINAL REVISION APPLICATION479 of 2002
Decided On : 03/04/2004
Headnote:
Criminal Law – Criminal Trial – Indian Penal Code, 1860 – Sections 406,408,420,423 and 463 – Criminal Procedure Code, 1973 – Section 482 – It is submitted that the Criminal Revision Application preferred by the petitioner came to be dismissed by common order under challenge, Special Criminal Application has been filed to avoid technical objection and the present Criminal Revision Application of is filed because relief prayed for by the present respondent in Criminal Revision Application has been granted in his favour simultaneously – For sake of convenience it would be proper to set out the facts in brief, which go to the root of the dispute brought before this court – Petitioner is a finance company and had filed a complaint in the court of learned JMFC against the respondent no. 2 for committing offences punishable under sections 406,408,420,423 and 463 of IPC – After recording verification, JMFC took cognizance and issued process - It is contended that upon the request of the accused and on a representation made by the accused, the vehicle in question Daewoo Ceilo Nexia Car was handed over to the respondent no. 2 because of one of the terms and conditions laid down in Hire Purchase Agreement executed by accused – Respondent no. 2, under the said HP agreement was under an obligation to pay the amount/instalment and in that terms of HP agreement, vehicle was handed over to the accused – Held, Question of real ownership should be examined because the real ownership is acquired by the purchase of exclusive ownership and ownership as per certificate of registration are two different aspects – A registered owner under a HP agreement has to pay the full amount of consideration or agreed amount under hire purchase/hypothecation agreement as the case may be to become exclusive real owner. It seems that the learned Trial Judge has not applied the facts and law in the correct perspective and this is the error needs rectification -Interim arrangement of possession the vehicle in question be handed over to the petitioner company pending hearing and final disposal of the criminal complaint No. 514 of 2002 and the company shall keep the said vehicle in a good condition and if the company intends to exercise its right under the HP agreement, executed by respondent no. 2 then such right shall be exercised after obtaining appropriate orders from the competent court including trial court – By referring the decision of Krishnan (supra) it is held by the Apex Court "that inherent powers under section 482 Cr. P. C. was wrongly exercised by the High Court though the dispute was already decided by the court – Criminal Revision Application No. 479 of 2002 is allowed (Paras 20 to 24)
( 1 ) HEARD Mr. S. V. Raju learned counsel with Mr. Chetan Pandya learned counsel on behalf of the petitioner, Ms. Nandini Joshi learned APP for the respondent State and Mr. Zubin Bharda for respondent no. 2 in Cri. Revision Application No. 479 of 2002.
( 2 ) PRESENT Criminal Revision Application No. 479 of 2002 is preferred to get the order set aside passed by the learned Additional Sessions Judge, Surat dated 16. 11. 2002 while disposing of the Criminal Revision Application No. 284 of 2002.
( 3 ) THE order under challenge is a common order passed while dealing with two Criminal Revision Applications viz. Criminal Revision Application No. 240 of 2002 and 284 of 2002.
( 4 ) CRIMINAL Revision Application No. 240 of 2002 was filed by the present petitioner and the second one by respondent no. 2 of the present Revision Application viz. Navinchandra Dhirajlal Gandhi.
( 5 ) TODAY, the two matters are listed for final hearing as different proceedings. One of them is, a Special Criminal Application No. 865 of 2002 invoking jurisdiction of this court under section 482 of the Cri. Proc. Code. It is submitted that the Criminal Revision Application preferred by the petitioner came to be dismissed by common order under challenge, Special Criminal Application has been filed to avoid technical objection and the present Criminal Revision Application No. 479 of 2002 is filed because the relief prayed for by the present respondent-Navinchandra, in Criminal Revision Application No. 284 of 2002, has been granted in his favour simultaneously.
( 6 ) FOR the sake of convenience it would be proper to set out the facts in brief, which go to the root of the dispute brought before this court. 6. 1. THE petitioner is a finance company and had filed a complaint No 514 of 2001 in the court of learned JMFC, Surat against the respondent no. 2 Navinchandra Dhirajlal Gandhi for committing offences punishable under sections 406,408,420,423 and 463 of the Indian Peeenal Code. After recording verification, the learned JMFC took cognizance and issued process. It is contended that upon the request of the accused and on a representation made by the accused, the vehicle in question i. e. Daewoo Ceilo Nexia Car having registration NO. GJ-7-R-3797, was handed over to the respondent no. 2 because of one of the terms and conditions laid down in the Hire Purchase Agreement (for short H. P. Agrement) executed by the accused on 24. 2. 2001. 6. 2. THE respondent no. 2, under the said HP agreement was under an obligation to pay the amount/instalment and in that terms of the HP agreement, the vehicle was handed over to the accused. On realizing that the petitioner company is being cheated as the cheques given by the accused were bounced for insufficient funds in the relevant bank account, above said complaint was filed. The petitioner also filed an application under section 93 of Cr. P. C. being Cri. Misc. Application NO. 49 of 2002 inter alia prayed for issuance of a search warrant to the Police Inspector,salabatpura Police Station to seize the above said motor car and after hearing the complainant-applicant, the learned Magistrate passed orders for issuance of warrant and seizure of the car in question. But before the motor car could be handed over to the petitioner on further orders, respondent no. 2 raised objections and submitted that custody of the vehicle in question may be restored to him as he was enjoying possession of the motor car under a contract as a registered owner and there is bonafide dispute as to the terms and amount of payment. As per Mr. Bharda order under section 93 Cr. P. C. was not legal or proper.
( 7 ) I have considered the contentions of respondent no. 2 before the court. The prayer to hand over the vehicle to the petitioner company advanced before the learned Magistrate has been rejected vide order dated 3. 7. 2002. In the same way, application of the similar nature i. e. for getting custody of the vehicle in question moved by the re
