1. - The instant petition has been filed under section. 482 Criminal Penal Code against the order of learned Civil Judge (J.D.) & Judicial Magistrate, 1st Class, Pratapgarh dated 2.7.2001 in Checking Proceeding No. 655713 dated 25.6.2001. By the said order the application filed by the present petitioner-Pyarchand was disposed with the direction that if the petitioner obtains a receipt from the Transport Department after deposit of the tax due, the vehicle MPU-5159 be delivered to the petitioner.

2. The facts of the case are that the vehicle in question was seized by the Transport Department and an application was moved under section 457 Criminal Penal Code for release of the same, which was rejected by the learned trial Court as stated earlier.

3. On 17.7.2001, the learned counsel for the petitioner argued before the Court that the Transport Commissioner has not given any notice to the petitioner calling him upon to pay any amount of tax of any nature whatever nor any determination of the precise amount recoverable from him has ever been made in accordance with law and the vehicle had been seized, and therefore, the learned trial Court committed an error in directing the release of the vehicle on the condition of paying the amount of outstanding tax in the Transport Department to he paid by the petitioner. The petition was admitted and notices in the stay petition were also issued on that day. The stay was also granted by the Court, which runs as under :

"In the meanwhile, the vehicle be delivered to the petitioner on his furnishing a bank guarantee in the sum of Rs. 50,000/- in favour of the District Transport Officer, Paragraph. The guarantee shall be to f effect that in the event of any road tax or special road tax being forward leviable from him as contemplated by the order of the Transport Commissioner dated 18.5.2001 he will pay the amount and in the event of his failure, the amount may be realised by invoking the bank guarantee."

4. It was also made clear that this order will not come in the way of the District Transport Officer cum Taxation Officer, Pratapgarh in his initiating appropriate proceedings against the petitioner for assessment/quantification of the tax/road tax as may be leviable from the petitioner in accordance with the provisions of relevant statute, attention whereto has been invited by the order of the Transport Commissioner dated 18.5.2001.

5. The petitioner in compliance of the order, submitted Bank Guarantee on 23.7.2001, the validity of which was to expire on 21.10.2001.

6. The non-petitioners appeared and filed reply. It was pointed out on 25.1.2002 that the demand notice was issued by the concerned officer on 23.7.2001 and against which S.B.C. Writ Petition No. 3256/2001 was filed in this Court on 21.8.2001 and it was ordered on 24.8.2001 in that case as under:-

"Admit. Issue notice.

Issue notice of the stay application.

Meanwhile, no coercive process shall be taken against the petitioner provided he deposits 25% of the deposited demand and security for the balance amount to the satisfaction of the concerned D.T.O."

7. It also appears from the photo state copy of the order that the petitioner has deposited 25% of the tax due Rs. 16,050/- vide receipt No. 0008077 dated 22.9.2001 and furnished security bond for 75% of the tax due. As per demand note issued on 23.7.2001, the tax, which was alleged to be due against the petitioner was Rs. 64,194/- for the period April, 1999 to June, 2001. The District Transport Officer, Pratapgarh issued a certificate to this effect with reference to writ petition No. 3256/2001.

8. The learned counsel for the petitioner prayed that the petitioner may be allowed to encash the Bank Guarantee furnished in compliance of the order of this Court in S.B. Cri. Misc. Pet. No. 248/2001 passed on 17.7.2001. The vehicle has already been released under the compliance of the order of the Court and no useful purpose would be served by keeping the Bank Guarantee alive.

9. The learned c