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IN THE HIGH COURT OF SIKKIM, GANGTOK
BHASKAR RAJ PRADHAN, J.
NHPC Ltd. Rangit Power Station, South Sikkim - Appellant
Versus
State of Sikkim - Respondent
W.P. (Crl.) No. 01 of 2018
Decided on : 30-08-2018
NHPC Limited - Ownership Dispute of Seized Machine - Indian Penal Code, 1860 (IPC) - Section 420/406/465/471/120B/381/411 - Section 451 Cr.P.C.
Fact of the Case:
The Petitioner, NHPC Limited, sought release of a seized machine, claiming ownership. The machine was subject to a dispute between the Petitioner and the Complainant, who alleged that the machine was stolen property. The Judicial Magistrate rejected the Petitioner's application for release, citing the unresolved ownership dispute and the potential for unrest between the parties.
Finding of the Court:
The Court found that the machine's custody was to be determined under Section 451 Cr.P.C., pending trial, and not for determining ownership. It noted that the machine's condition was deteriorating and that the dispute needed resolution. The Court directed the release of the machine to the Petitioner under specific conditions, pending the determination of ownership.
Issues: The main issue was the custody and release of the seized machine amidst an ownership dispute between the Petitioner and the Complainant.
Ratio Decidendi: The Court held that Section 451 Cr.P.C. provides for the temporary custody of property pending trial, not for determining ownership. It emphasized the need to prevent the machine's deterioration and the importance of resolving the ownership dispute.
Final Decision: The Court directed the release of the machine to the Petitioner under specific conditions, pending the determination of ownership, and allowed the parties to approach the Civil Court for resolution.
ORDER :
Bhaskar Raj Pradhan, J
1. The Petitioner is NHPC Limited, a Government of India Enterprise. The present Writ Petition seeks to assail the order dated 29.12.2017 passed by the learned Judicial Magistrate, First Class, East Sikkim (learned Judicial Magistrate) rejecting the application filed by the Petitioner Corporation for release of the vehicle seized by the Investigating Officer in connection with Sadar Police Station Case No. 51 of 2017 dated 04.03.2017 under Section 420/406/465/471/120B/381/411 of the Indian Penal Code, 1860 (IPC).
2. The First Information Report (FIR) dated 04.03.2017 was lodged by Phigu Tshering Bhutia and Sonam Palzor Bhutia (the Complainant). In the said FIR it was alleged that Phigu Tshering Bhutia had become acquainted with Sudish Kumar Yadav claiming to be the proprietor of M/s Naman Equipments Services, an authorised dealer of Escorts Construction Equipment Limited in West Bengal and Sikkim. It was alleged that Sudish Kumar Yadav induced the said Phigu Tshering Bhutia to buy Hydra-14 Crane bearing Chasis number 195B491621 and Engine number S433-A48180 (the said machine) with an assurance that he would engage it with some private company and pay him a sum of Rs.50,000/- (Rupees fifty thousand) as monthly rental. It is stated that Phigu Tshering Bhutia thereafter, requested his cousin Sonam Palzor Bhutia to apply for hypothecation loan from IndusInd Bank Limited. Sonam Palzor Bhutia then got the said machine financed from IndusInd Bank Limited and also received a tax invoice dated 09.08.2012 amounting to Rs.15,30,000/- (Rupees fifteen lakhs thirty thousand) only in his name and the motor insurance cover note dated 09.08.2012 in favour of M/s Naman Equipments Services. Phigu Tshering Bhutia states in the FIR that after the down payment was made to the Indusind Bank Limited, the said machine was received by Sudish Kumar Yadav on 09.08.2012 as he assured that the said machine would be given on lease to some construction company/contractor/power projects and lured him. It was alleged that to win over his confidence, Sudish Kumar Yadav initially paid him a sum of Rs.4 lakhs on 21.09.2012 as advance payment and thereafter a further sum of Rs.13,17,000/- (Rupees thirteen lakhs seventeen thousand) which amounts to rental payment of 26 months till October, 2014. It is alleged that when Sudish Kumar Yadav stopped making payment after October, 2014 he requested him to pay the entire rental amount due and return the machine to which Sudish Kumar Yadav requested for time. It is further alleged that the EMIs to the Bank closed on 27.08.2015 after full and final payment was made by Sonam Palzor Bhutia. Various efforts to contact Sudish Kumar Yadav went in vain after which Phigu Tshering Bhutia made inquiries with Escorts Private Limited, Kolkatta after which he came to know that as per their records the said machine had been sold to the Petitioner Corporation in the year 2013 itself and registered in its name. It is alleged that Phigu Tshering Bhutia personally visited the Petitioner’s office and made inquiries and got confirmation through documents that the Petitioner Corporation had bought the said machine from Sudish Kumar Yadav in the year 2013. It is stated that both Phigu Tshering Bhutia and Sonam Palzor Bhutia were unaware of these facts. Phigu Tshering Bhutia further alleges that in the month of February, 2017 he visited the IndusInd Bank Limited and inquired as to how they had issued the “No Objection Certificate” for the sale of the said machine which was still under hypothecation in the year 2013. He complains that the officials were unable to provide any satisfactory reply and therefore he doubted that the officials of IndusInd Bank Limited and Sudish Kumar Yadav were hand in glove in the illegal transaction. It is further alleged that the officials of the Petitioner Corporation has by dishonest means bought the stolen property without any clearance from lawful authorities. On the aforesaid allegat
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