ORDER

14.09.2022 Heard Mr. A. K. Ahmed, learned counsel appearing for the petitioner. Also heard Mr. B. B. Gogoi, learned Addl. Public Prosecutor, Assam appearing for the State respondent No. 1 and Mr. K. Agarwal, learned counsel for the respondent No. 2.

2. By this petition under Section 397/401 read with Section 451 of the Code of Criminal Procedure (‘Cr.P.C.’ for short), the petitioner has prayed for quashing of the impugned order, dated 10.01.2022, passed by the learned Chief Judicial Magistrate, Kamrup, Amingaon (‘C.J.M.’ for short) rejecting the zimma of a vehicle (JCB) bearing registration No.ML- 10-B-3715 in Chhaygaon P.S. Case No. 992/2021 corresponding to G.R. Case No. 2046 (K)/2021.

3. The petitioner’s case precisely is that he purchased one JCB vehicle bearing registration No. ML-10-B-3715 on 05.09.2016 from its registered owner/the respondent No.2 by executing a Sale Deed for a consideration of Rs. 9,00,000/- (Rupees nine lakhs) only to be paid on equal 21 monthly instalments of Rs. 55,567/-. However, the transfer of ownership of the said vehicle could not be done due to unwillingness of the owner/the respondent No.2 although he signed in Form-29 vide Annexure-4 and petitioner paid 20(twenty) instalments from 03.08.2018 for crediting to the bank account of the respondent No.2, which the latter failed to deposit on time in his loan account. In the meantime, the petitioner allowed his man to use the vehicle for rents from time to time. Thereafter, the respondent No.2/the registered owner of the vehicle lodged an F.I.R. with Chhaygaon Police Station against the petitioner whereupon Chhaygaon P.S. case No. 992/2021 under Sections 406/420 of the IPC was registered and during investigation seized the said vehicle. The petitioner contends that he paid the entire amount of loan drawn against purchase of the vehicle to the finance company and as such, he has the right to the ownership of the vehicle, which the respondent No. 2 is bound to transfer his ownership over the vehicle as per agreement, dated 24.07.2018 and as such, he has the right to custody of the seized JCB.

4. The impugned order, dated 10.01.2022 reads hereinbelow extracted-

“10.01.2022 Both petitioners are represented.

Petitioner namely, Amin Nurul Islam filed petition No. 1164 u/s 451 Cr.P.C. praying for custody of JCB vehicle bearing registration number ML-10-B-3715 which was seized in connection with the instant case.

Petitioner namely, Md. Ajmal Hoque also filed petition no. 1178 praying for custody of the same vehicle.

Heard both sides.

Petitioner, Md. Ajmal Hoque also filed petition no. 1240 stating that petitioner Amin Nurul Islam who is the registered owner of the vehicle sold the vehicle to him by executing a sale deed date 15.07.2018 for Rs.20,66,907/- out of which he paid Rs.9,00,000/- in cash and the remaining Rs.11,66,907/- was to be paid in 21 EMIs of Rs.55,567/- and the petitioner stated that he cleared the entire amount but the registered owner did not deposit the money to the financer.

The registered owner, i.e. petitioner Amin Nurul Islam denied that petitioner Ajmal Hoque deposited the EMIs.

Learned counsel for petitioner, Amin Nurul Islam admitted of receiving Rs.9,00,000/- but denied that Ajmal Hoque deposited the remaining EMI as agreed.

Learned counsel for both the zimma petitioners on several occasions prayed for time to produce relevant documents regarding the transaction of money but failed to do so and today, both the counsel for the petitioners prayed that the zimma petitions to be dismissed.

As the ownership of the seized JCB vehicle bearing registration number ML-10-B-3715 could not be ascertained, I am not inclined to allow the zimma petition no. 1164 & 1178 and accordingly, both the petitions stands rejected.

Zimma Petition nos. 1164 and 1178 are disposed of.”

5. I have given due consideration to the arguments advanced by the learned counsel of both sides. Perused record.

6. In Sunderbhai Ambalal Desai Vs. State of Gujarat, reported in (2002)