N.M. Kasliwal, J. - (1.)Brief factors leading to this petition are that the petitioner Hari Singh and non-petitioner Piarelal obtained a loan from the State Bank of Bikaner and Jaipur, branch Kishanganj for purchasing a tractor. The loan was sanctioned in the names of both the persons and thereafter tractor No. RRO-110 and trolley were purchased. A report was lodged by Piarelal non-petitioner for violation of the provisions of the Motor Vehicles Act, at police station Kishanganj and in pursuance to the said F. I. R. the tractor and the trolley in question were seized by the police station Kishanganj on July 16, 1983. The petitioner then submitted an application for handing over the same to his custody and the learned Judicial Magistrate by order, dated July 16, 1983 gave the same in the supardgi of the petitioner. The tractor and the trolley were given to the petitioner without any condition. Thereafter the non-petitioner submitted an application for handing over the same to him but the learned Judicial Magistrate dismissed his application by order, dated Aug. 3, 1983.
(2.)The non-petitioner then filed a complaint in the Court of the Judicial Magistrate, Baran for an offence under Sec. 406 Penal Code against the petitioner. The learned Magistrate sent the papers for enquiry under Sec. 156 (3) Cr. P. C. to the police station Kishanganj. Thereafter the police registered a case under section 406 Penal Code and seized the tractor and trolley in question from the possession of the petitioner. The petitioner then again submitted an application before the learned trial court for handing over the same to him. The learned Magistrate however, by his order, dated Oct. 25, 1983 dismissed the application filed by the petitioner and handed over the same to the non-petitioner Piarelal on supardnama on the condition that he would furnish a surety of Rs. 80,000.00 and will not alienate the same during the pendency of the case and will produce the same before the court as and when ordered. In these circumstances the present petition under Sec. 482 Cr. P. C has been filed by the petitioner Hari Singh for quashing the order of the learned Judicial Magistrate No. 2, Baran, dated- Oct. 5, 1983 and for handing over the tractor and the trolley in pulsation.
(3.)It was contended by Mr. Tyagi, learned counsel for the petitioner that no criminal case is made out against the petitioner. Even according to the complaint filed by the non-petitioner Piarelal, the dispute was of a civil nature. Admittedly a loan was given in joint name by the Bank and nearly 32 bighas of agricultural land belonging to the petitioner has been mortgaged in favour of the Bank by way of security of the loan. It is further submitted that the learned trial court itself by order, dated July 16, 1983 had handed over the tractor and trolley in question to the petitioner without any condition and it also remains undisputed that at the time of seizure the tractor and trolley in question were in the possession of the petitioner. It is further submitted that prima facie no case under section 406 Penal Code is made out against the petitioner and the complaint has been lodged merely in order to harass the petitioner and is merely a device for taking the tractor and trolley in possession of the non-petitioner.