BASANTI PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this revision petition under section 401 read with section 397 of the Code of Criminal Procedure, 1973 (for short, the CodeT) the petitioner Basanti Pradhan assails the order dated 20.7.1993 of the learned S.D.J.M., Jharsuguda directing release of the bus bearing registration No. DAS 2411 in favour of Bichhitar Singh (O.P. 2) on his executing a bond for Rs. 1,00,000/- to produce the vehicle as and when required by the court.

(2.) Admittedly, the said vehicle originally belonged to Bichhitar Singh who purchased the same on taking loan from Rama Finance and Company, a financier of Vijayanagaram in the State of Andhra Pradesh (O.P. 3). On 19.12.1992 Bichhitar Singh entered into an agreement with Basanti Pradhan for sale of the vehicle at Rs. 2,15,000/- and as per the stipulations in the agreement Basanti Pradhan paid Rs. 70,000/- in cash and undertook to pay Rs. 45,000/- within February 28, 1993 and the remaining amount of one lakh in twenty monthly installments commencing from the month of March at the rate of Rs. 5,000/-. Nothing was indicated in the agreement that the vehicle had been purchased by Bichhitar Singh taking loan from a financier. On the date of execution of the agreement i.e. on 19.12.1992 Bichhitar Singh executed a receipt in favour of Basanti Pradhan indicating that he had received the entire consideration amounting to Rs. 2,15,000/- towards full and final payment in respect of the sale of the bus. On the same day Bichhitar Singh swore two affidavits before the Executive Magistrate, Sambalpur, one indicating that he had delivered the bus to Basanti Pradhan after receipt of the full and final consideration and the other indicating that he delivered the permanent and temporary permits of the vehicle. On 19.6.1993, the husband of the petitioner filed an application before the Deputy Inspector General of Police, Northern Range, Sambalpur stating therein that on 2.6.1993 at about 9 A.M. while the vehicle in question was standing in Jharsuguda Private Bus Stand and the driver, conductor and helper of the bus had gone to a nearby restaurant to take tea, an unknown driver in the company of one Janardan Sahu (O.P. 4) speedily drove away the vehicle and although the matter was reported at Jharsuduga Police Station, no action was taken by the police and that after searching for the vehicle from 3.6. 1993 to 15.6.1993 he came to learn that the vehicle in question was standing in front of the house of Janardan Sahu (O.P. 4) of Lapanga. On the said report, the D.I.G. of Police having directed the Officer-in-charge of Tharsuguda Police Station to register a case and to seize the vehicle, the same was registered as Jharsuguda P.S. Case No. 108 of 1993 corresponding to G.R. Case No. 448 of 1993 in the court of the S.D.J.M., Jharsuguda. During investigation of the said case, the vehicle in question was seized and intimation thereof was sent to the court of the S.D.J.M. Thereafter, Basanti Pradhan, Bichhitar Singh and the financier filed three separate applications praying for interim release of the vehicle in their favour. The stand of the petitioner was that after execution of the agreement when she went to the office of the R.T.O., she came to know for the first time that a sum of Rs. 60,000/- was due against Bichhitar Singh from the financier and he was in arrears of tax to the tune of Rs. 40,000/- and, therefore, being apprehensive of future complications she arranged the remaining amount of consideration and paid the same to Bichhitar Singh who thereafter executed the money receipt and swore the two affidavits before the Executive Magistrate. According to her, since she had paid the entire consideration amount and the vehicle was stolen away from her possession, the vehicle should be released in her favour. Bichhitar Singh claimed possession of the vehicle stating that he was the owner of the vehicle and the registration certificate and route permits continued to stand in his name. The plea of the financier was that since Bichhitar Singh had purchased the vehicle taking loan from it on executing a hire-purchase agreement, he was is possession as hirer and his sale of the vehicle would not confer any title in favour of the petitioner Basanti Pradhan. Since Bichhitar Singh was a defaulter in payment of in statements, he could not be said to be the owner of the vehicle and the ownership having remained with the financier, the vehicle should be released in its favour.

(3.) The learned S.D.J.M. was of the opinion that the financier was not entitled to possession of the vehicle because it was entitled to take recourse to legal action in appropriate forum for contravention of any of the conditions of the hire-purchase agreement. She found that on the reverse of the first page of the xerox copy of the agreement for sale, there was an endorsement of Bichhitar Singh dated 23.12.1992 indicating receipt of Rs. 50,000/- and, therefore, she directed the petitioner Basanti Pradhan to produce the original agreement for sale. But since the same was not produced and as the endorsement was of a date four days after the execution of the agreement for sale, she entertained a doubt regarding assertion of the petitioner of her having paid the entire consideration amount on the date of execution of the agreement for sale and as such declined to release the vehicle in her favour. Since the registration certificate and the route permits, in respect of the vehicle were standing in the name of Bichhitar Singh, she held him to be the person entitled to the vehicle and accordingly passed the impugned order.