Motor vehicle to be entrusted to the custody of registered owner.

1. This revision is directed against the order dated 23.8.1985 passed by the Metropolitan Magistrate, IV Court, Bangalore City. Whereby he has while rejecting the application made by the petitioner has allowed the application made by the respondent M/s. Sangeetha Auto Finances and directed to entrust interim custody of the vehicle in question to him on his executing solvent surety binding himself to produce the vehicle before the Court as and when directed to do so and to keep the vehicle in good road-worthy condition, pending disposal of the criminal case.

2. The order is one purporting to have been made under Sec.457, Cr.P.C, in relation to the Lorry bearing No. MED 5447 of which the petitioner Mr. Syed Hafeezulla Pasha son of Pacha Saheb is admittedly the registered owner, as provided under the Motor Vehicles Act. On the complaint of one Syed Ismail, said to be the driver of the vehicle, working under the petitioner, that on 21.12.1984 when the lorry was parked near Bharath Talkies, it had been stolen away by some three unknown persons, the Police of Kalasipalayam Police Station registered a case in Crime No. 872 of 1984 and took up investigation. During investigation, on 22.12.1984 when the lorry in question was found parked at the premises Universal Enterprises, Subbaiah Garden, Barmerghatta Road, Bangalore, the same was seized and produced before the Magistrate. On 26.12.1984, the petitioner made application before the Magistrate for interim custody of the vehicle on the ground that he being the absolute and registered owner of the vehicle he was entitled to the possession thereof and he was prepared to produce the vehicle before the police or before the Court when directed to do so. On 27.12.1984, the respondent-firm also made an application for entrustment of the custody of the vehicle contending, inter alia, that the petitioner herein took the possession of the vehicle on hire purchase agreement with the firm; he was required to pay a sum of Rs.1,07,100 in 30 monthly instalments; he paid only some instalments and committing default in payment of the instalments becoming due from March, 1984 onwards and in spite of repeated demands, when he failed to pay the firm had re-possessed the vehicle in terms of the hire- purchase agreement; and the firm being the owner of the vehicle, it is entitled to the interim custody of the same. The hire purchase agreement and receipts regarding payment of insurance premium and the letters said to have been sent by the petitioner were also produced.

3. Although it would appear that the petitioner contended that there was no hire purchase agreement as such and there was only a loan transaction, and several decisions of this Court and decisions of other High Courts were referred to before the Magistrate, without properly applying the mind to the consideration of the questions relevant while making the interim custody of the vehicle, he being of the view that there was such a hire purchase agreement between the petitioner and the respondent, the petitioner having committed default in payment of hire purchase instalments in terms of the hire purchase agreement, the respondent-firm had re-possessed the vehicle and the respondent having invested huge sum on the lorry and considerable sum still being due from the petitioner it was, therefore, just and proper to entrust interim custody to the respondent firm, having made the order, the petitioner has approached this Court.

4. Mr. Nagesh, learned counsel for the petitioner, argued that the Magistrate has not only failed to follow the various decisions of this Court cited before him, but has also come to a wrong conclusion that the petitioner had taken possession of the vehicle and held that same on hire purchase agreement with the respondent- firm. He submitted, the vehicle in question stood in the name of one Mr. Shenoy as a registered owner on hire purchase agreement with Syndicate Bank, and it was then transferred to the petitioner on 3