- (1.) This application under Sections 401/482 of the Code of Criminal Procedure, 1973 has been filed on 19.11.2014 by petitioner Tata Motors Finance Limited challenging orders dated 21.08.2014 and 29.09.2014 passed by learned Chief Judicial Magistrate, Burdwan in connection with G.R. Case No. 2017 of 2014 arising out of Memari Police Station Case No. 285/14 dated 29.05.2014 under Section 379 of the Indian Penal Code. Petitioner company is financer of two trucks purchased by opposite party no. 2 Akbar Ali as per hire-purchase agreement having arbitration clause. The opposite party no. 2 failed to pay instalments for which the petitioner filed applications under Section 9 of the Arbitration and Conciliation Act, 1996 in the City Civil Court, Calcutta. Orders passed in those cases appointing receivers Somesh Chandra Panja, Advocate in Misc. Case No. 593/14 in respect of one truck bearing registration no. WB25E7345 and Rajiv Kumar, Advocate in Misc Case No. 598/14 in respect of another truck bearing registration no. WB25E7346, by learned Judge, 2nd Bench, City Civil Court, Calcutta. Receivers Somesh Chandra Panja and Rajiv Kumar took possession of the respective vehicles on 14.04.2014 and 19.05.2014 respectively. Receivers intimated the facts to the 2nd Court of learned Judge, City Civil Court, Calcutta. Having full knowledge of such facts the opposite party no. 2 lodged written FIR before Officer-in-Charge, Memari Police Station on 29.05.2014 under Section 379 of the Indian Penal Code alleging theft of the vehicles in question by some unknown persons on 20.05.2014 in the night at about 8:00-8:30 p.m. The miscreants took away the relevant papers of those two vehicles and cash amounting to Rs.30,000/- and on search the de facto complainant found those vehicles kept at a place near Shaktigarh. Receiving the FIR Police started Memari Police Station Case No. 285/14 dated 29.05.2014 under Section 379 of the Indian Penal Code and seized the vehicles. Opposite party no. 2 filed petition under Section 451 of the Code of Criminal Procedure for getting possession of the said vehicles before the learned Chief Judicial Magistrate, Burdwan. Petitioner company preferred a petition in that Court under Section 451 of the Code of Criminal Procedure through receiver Rajiv Kumar for return of truck bearing registration No. WB25E7346. On 07.07.2014 learned Chief Judicial Magistrate, Burdwan, passed an order in respect of the prayers under Section 451 of the Code of Criminal Procedure giving certain direction to the investigating Police Officer for returning the vehicles to the lawful claimants, on furnishing bond of Rs.30,00,000/- for each truck. Thereafter, on 21.08.2014 learned Chief Judicial Magistrate passed an order on the basis of which the investigating Police Officer released both the vehicles in favour of opposite party no. 2 on 30.08.2014. On 31.08.2014 learned Judge, 2nd Court, City Civil Court passed an order directing officer in charge, Memari Police Station for handing over the possession of the two vehicles to the respective receivers.
(2.) Subsequently, the petitioner filed application and copy of order dated 18.09.2014 before learned Chief Judicial Magistrate but on 29.09.2014 learned Magistrate refused the prayer for restoration of possession of the trucks to the petitioner directing the petitioner to approach the Civil Court. Making such allegations the present application has been filed for setting aside the orders dated 07.07.2014, 21.08.2014 and 29.09.2014 passed by learned Chief Judicial Magistrate, Burdwan in G.R. Case No. 2017/14 and for a direction upon opposite party no. 2 to hand over custody of the two trucks to the petitioner.
(3.) At the time of hearing learned counsel for the petitioner has cited a decision of Hon'ble Apex Court in the case of Manipal Financed Corporation Ltd. Vs. T. Bangarappa and Another, 1994 SCC(Cri) 588 and another decision of a Division Bench of this High Court in the case of Bhanu Pratap Singh Vs. State of West Bengal and Another, 2007 3 CalHN 975 . Learned counsel for the petitioner has advanced his arguments that the petitioner is financer who advanced loan to opposite party no. 2 for his purchase of the two trucks in question with hire-purchase agreement. Since the opposite party no. 2 failed to pay instalments to the petitioner the petitioner approached the City Civil Court for appointment of receiver and the learned Court appointed two receivers for the two vehicles. Said vehicles have been seized by police on the basis of complaint of opposite party no. 2 and as such following the cited decisions the petitioner is entitled to get possession of those vehicles.;