K.L. Sharma, J. - (1.) Heard learned Counsel for the revisionist as well as learned A.G.A.
(2.) This revision is directed against an order dated 12.7.1994 passed by Chief judicial Magistrate, Aligarh in Criminal case No. 1.'d of 1994 under Section 420 Indian Penal Code whereby the application of the revisionist for the release of the Truck No U.P.S.T. 4693 was rejected.
(3.) 1 have perused the record. After hearing the learned counsel for parties as well as perusal of the record, I am of the opinion that the Magistrate committed an error apparent on the face of record that the Truck belongs to one Vipin Kumar Tiwari and the Transport company did not claim the truck, on the basis of registration certificate. The record shows that this truck No. U.P.T. 4693 was originally registered in the name of Mahendra Singh son of Sri Roshan Lal on 15.10.1987. It was subject to hire purchase agreement with M/s Sri Parshuram Ji Investment and Finance Co. (Pvt.) Kasganj Etah. It appears that subsequently Mahendra Singh committed default in the payment of instalments of the finance company and surreptitiously sold the truck to one Vipin Kumar Tiwari who succeeded in obtaining the tcgistration of the truck in his favour on 5.4.1994. A first information Report under Sections 406 and 420 Indian Penal Code was lodged against Vipin Kumar Tiwari, Jagdish Guatam and Anil Kumar Gautam for misappropriation of the brass building material of the General Transport Corporation, Agra, and the truck alongwith building material was seized by the police. An application for release of truck was moved by the finance company before Chief Judicial Magistrate, Etah. The Court, however, did not appreciate that since the money borrowed from the finance company has not been fully paid, the finance company has got first charge on the truck and the transfer of the truck by hire purchaser to Vipin Kumar Tiwari was per se illegal and a fresh registration certificate in favour of Vipin Kumar Tiwari was obtained surreptitiously. The transport company had a claim only in respect of building material which was entrusted to Vipin Kumar Tiwari and others for carriage to Bombay, which was misappropriated by them. The transport company did not have claim in respect of truck which belongs factually to finance company and the registered owner Vipin Kumar Tiwari had not paid remaining dues of the borrowed money of the original hire purchaser Mahendra Singh. In these circumstances, the propriety demanded that the truck should have been released to the custody of the finance company until the payment of the balance amount of the dues of the hire purchase agreement was made to the company and subject to the determination of the right between the finance company and the hire purchases and subsequent transferee. The criminal proceedings under Section 406 and 420 Indian Penal Code can very well proceed even though the custody of the truck is given to the finance company and whenever it is required it can be produced by the finance company. The registered owner Vipin Kumar Tiwari or transport company has not claimed the custody of the truck and it was only the finance company which had claimed the custody of the truck.;