Decided on October 31,1988



- (1.) ORDER :- The order of the Sub Divisional Judicial Magistrate, Angul rejecting the petitioners prayer to hand over the seized truck in his custody during the pendency of the criminal case is being challenged in this revision.
(2.) Petitioner's case briefly stated is that he is the representative of Coromandel Finance Company Limited, who has the hire purchase business. Pursuant to a hire purchase agreement between the said finance company and opposite party No. 2, a sum of Rs. 2,35,900/- was advanced to opposite party No. 2 for purchase of the vehicle C.R.D. 7801. The amount in question was to be repaid in thirty five instalments as contained in the agreement itself. The vehicle was purchased from one Ramdas Motor Transport Company and though in the register of Book, opposite party No. 2 was described as a registered owner, but in the insurance policy as well as in the registration book, it was specifically mentioned that the financing company would continue to be the owner of the vehicle until the entire amount under loan is paid up. The hire purchase agreement further contains a stipulation that in the event the borrower fails to pay the instalments in time, then the financing company can take possession of the vehicle and can sue the borrower for damages. Opposite party No. 2 having failed to pay the instalment dues even in spite of demands made by the petitioner, on 8-9-87 the petitioner took over possession of the vehicle in accordance with the terms of the agreement contained in the hire purchase agreement and the vehicle was kept in the premises of the petitioner's office at Bhubaneswar. The petitioner also immediately wrote a letter to opposite party No. 2 intimating that the vehicle has been seized in accordance with the stipulation contained in the agreement and requested opposite party No. 2 to pay the balance instalment dues so that the vehicle could be released. Opposite party No. 2 thereupon approached the petitioner and agreed to pay the instalments, but without paying the same lodged an F.I.R. On 15-10-87 alleging offence against the petitioner under Ss.448/449/ 379/506/34 I.P.C. Pursuant to the said F.I.R. a G.R. case was registered and then Angul police seized the vehicle from the custody of the petitioner on 18-10-87. On 20-10-87, the petitioner moved an application in the court of the Sub-Divisional Judicial Magistrate, Angul for getting custody of the vehicle in question. By the impugned order the Sub-Divisional Judicial Magistrate rejected the petitioner's application and directed that the vehicle be given to the custody of opposite party No. 2. It is this order of the learned Magistrate which is being assailed in this revision.
(3.) Mr. Murty, the learned Counsel for the petitioner contends that in view of the hire purchase agreement between the parties and the terms contained therein and in view of the admitted fact that opposite party No. 2 defaulted in payment of the instalment dues, in eye of law, the petitioner as the representative of the financing company continues to be the owner of the vehicle and, therefore, is entitled to have the custody of the vehicle under S.457 of the Code of Criminal procedure and the learned Magistrate committed gross error in refusing the petitioner's prayer to have the custody of the vehicle in question. Mr. Misra, the learned Counsel for opposite party No. 2, on the other hand, contends that S.457 of the Code of Criminal Procedure confers discretion on the Magistrate to make such order as he thinks fit in respect of delivery of the property in question and the said discretion having been exercised in favour of opposite party No. 2, the High Court should not interfere with the said order in revision. The correctness of the rival submissions depend upon an interpretation of S.457 of the Code of Criminal Procedure.;

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