Shri Kant Tripathi - (1.) HEARD Mr. D.S. Mishra for the applicant and learned A.G.A. for the State and perused the record.
(2.) THIS is an application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Code') for quashing the order dated 23. 12. 2010 passed by Judicial Magistrate, Court No. 1, Varanasi whereby the learned Magistrate treated the applicant's application moved under Section 156(3) of the Code as complaint. Mr. D.S. Mishra submitted that the Magistrate had no power to treat the application moved under Section 156(3) of the Code as complaint. Mr. Mishra further submitted that the present case requires investigation in view of the fact that certain documents are to be taken into possession from the bank and also the opinion of the hand writing expert for proving the hand writing on various papers is necessary. These things cannot be properly done in a complaint case. The power of the Magistrate to treat the application moved under Section 156(3) of the Code as complaint is now well settled. In the case of Ram Babu on behalf of petitioner ought to have been considered and Executing Court could have recovered the said amount from any other property or properties of the owner of the vehicle.
(3.) PETITIONER has also placed reliance on the judgment in the case of Oriental Insurance Co. v. Zaharulinsha and others, 2008 AIR SCW 3251, wherein view has been taken that amount in question can also be recovered as arrears of land revenue as held as follows: "(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149 (2) read with Sub-section (7), as interpreted by this insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured Will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of the land revenue. The certificate will be issued for the recovery as arrears of land revenue only, if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal." Recovery has to be made from the property belonging to the owner of the vehicle in question and as here petitioner has been contending that owner of the vehicle has parted with ownership and possession of the vehicle in question after getting payment then, in such a situation and in this background application moved on behalf of the petitioner for consideration of the objection qua the order of attachment ought to have been considered by the Motor Accident Claims Tribunal in stead of proceedings to reject the same as has been done in the present case. Further every Court/tribunal has got inherent power to rectify mistake committed provided mistake has been committed. Here petitioner's contention has been that patent mistake has been committed, as owner of the vehicle in question, has ceased to be owner of the vehicle and now he is the owner. In such a situation then claim of the petitioner ought to have been examined after providing opportunity and examining as to whether said transaction is bona fide one or same is only to bailout the owner of the vehicle and is a mere pretence. Consequently order dated 29.4.2009 passed by Motor Accident Claims Tribunal is hereby quashed and set aside. Motor Accident Claims Tribunal is directed to decide the application in accordance with law preferably within three months from the date of presentation of certified copy of this order. Writ petitioner is allowed.;