SHANTI DEVI Vs. STATE OF JAMMU AND KASHMIR
LAWS(J&K)-1986-9-3
HIGH COURT OF JAMMU AND KASHMIR
Decided on September 11,1986

SHANTI DEVI Appellant
VERSUS
STATE Respondents

JUDGEMENT

R.P. Sethi, J. - (1.) Upon a report filed by the husband of the petitioner F.I.R. No.3 of 1986 for the commission of offence under section 382 R.P.C. was registered with the police station Gandhinagar. During the course of investigation of the case, the vehicle No. J KQ 9677 was seized by the police concerned. Upon an application filed by the husband of the petitioner for the release of the vehicle, the learned Chief Judicial Magistrate, Jammu ordered that vehicle be kept on the superdnama of Romesh Chander respondent No. 2 herein with a further direction to the police to complete the investigation and find as to whether the vehicle had actually been sold to the petitioner Shanti Devi or not. The police was directed to submit the report before 23-1-1986. Shanti Devi was permitted to move an application for change of superddar in case she had any claim A revision was preferred before the Additional Sessions Judge Jammu who vide his order dated 5-2-1986 held the order in question as interlocutory order and the proceedings having been kept open by the trial court. The direction being in the order that the vehicle shall be produced before the court on 23.1.1986 by the superddar, the order passed by the Chief Judicial Magistrate was not final order, hence no revision lies. Meantime the police submitted the report to the effect that the vehicle in question was sold to Shanti Devi vide sale deed and she was the owner of vehicle but documents were in the name of Romesh Chander who had executed a power of attorney in favour of the petitioner. According to the police the petitioner was entitled to possession of vehicle as superddar and if the superddar was not changed, the petitioner was likely to suffer huge and irreparable loss as the valuable parts of the vehicle may be replaced by the said Romesh Chander who had admittedly sold the vehicle to the petitioner. Romesh Chander submitted the detailed objections wherein it was admitted that the husband of the petitioner had filed an application for release of vehicle and learned Chief Judicial Magistrate had ordered the same to be kept on his superdari. He has further pleaded that he was the owner of the vehicle in question, which was financed by the State Bank of India Talwara Reasi. All the documents i.e. route permit registration certificate etc. were in his name and that the power of attorney executed by him in favour of the petitioner had no legal value. The petitioner filed another application before the sub- Judge Judicial Magistrate Jammu on 5-3-1986 for keeping the vehicle No. JKQ 9677 Tipper on her superdnama. After hearing the parties the sub-Judge Judicial Magistrate, Jammu held, that no exceptional or additional proof has been given in this case to pass the different order than passed by the learned Chief Judicial Magistrate. The agreement of sale itself does not transfer the vehicle under law. It is only by way of sale that the ownership can be transferred. The registration certificate of the vehicle under Motor Vehicle Act itself signifies and certifies about the ownership of the vehicle under Motor Vehicle Act and same in the instant case being in the name of Romesh Chander, and learned Chief Judicial Magistrate having ordered the release of vehicle on his superdari, I find no reason to take a different view at this stage in this case than taken by the learned Chief Judicial Magistrate and learned Additional Sessions Judge, JammuT The petitioner preferred a revision petition in the court of first Additional Sessions Judge, Jammu who vide his order impugned in the revision petition held that agreement of sale of vehicle was an evidence of consideration and of sale as the sale of vehicle has to be under the Motor Vehicle Act which becomes effective only after the transfer made by the registering authority. He further held that:To circumvent this law, a device is worked out where the registered owner executed power of attorney favour of the prospective owner authorising him to ply the vehicle on his behalf. This is what was done here as admitted by Mr. Bakshi and this is where the mischief lies in all these transactions, but no criminal court remeding this when a breach of contract and breach of faith is committed by the registered owner by cancelling the power of attorney. The sale agreement gives no right to the prospective purchaser till the vehicle is transferred in his name under the Motor Vehicle Act. Till then his authority to ply the vehicle is the power of attorney. But by obtaining power of attorney, the prospective owner is a party to the creation of an agency in his favour and by this he is acting only as an agent of the real owner. This legal position cannot be circumvented by making the power of attorney irrevocable as it is a misnomer to call it by the terminology. The learned First Additional Sessions Judge, Jammu was of the opinion that the registered owner has a complete control and the prospective owner having obtained power of attorney for plying the vehicle under that authority has no right to get the interim custody of the vehicle. After referring to A.J.R 1938 Mad. 129 wherein it was observed, In the world of business there are betrayals of confidence and deceptions which arouse moral indignation. These though strictly dishonourable would not amount to criminal offences. The learned First Additional Sessions Judge expressed his helplessness and allowed the interim custody to Romesh Chander only on the ground that he was a registered owner and ignoring the pleas taken by the petitioner that in fact the sale was complete after the vehicle was delivered to her on the basis of the agreement to sell executed between the parties.
(2.) In this revision petition the petitioner has submitted that the seized vehicle was in. partnership with Vachaspati, the son of the petitioner. However, the papers of the vehicle were in the name of respondent No. 2. As some disputes arose between the parties, the vehicle was sold to the petitioner by virtue of a sale agreement executed by the respondent No. 2 in favour of the petitioner. The respondent No. 2 after realizing all amount handed over the possession of the vehicle to the petitioner and the petitioner engaged the vehicle with various companies for work and received payments in lieu thereof. The respondent No. 2 executed an irrevocable power of attorney in her favour by which she was given the authority to ply the vehicle. The respondent No. 2 at the time of sale of the vehicle received a sum of Rs. 33.500 and a sum of Rs. 16,500 was paid in cash as bank liability. The petitioner thereafter deposited Rs. 39,000 with the bank in the name of respondent No. 2.The petitioner produced the vehicle for passing before the regional transport officer Jammu and in her absence the same was stolen by respondent No.2 regarding which the report was lodged with the police station Gandhinagar, Jammu as stated hereinabove. The orders impugned in the revision petition were against law and facts and liable to be set aside.
(3.) I have heard the learned counsel for the parties and perused the relevant provisions of law applicable in the case.;


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