B. R. ARORA, J. - (1.) THIS petition under section 482, Cr. P. C. is directed against the order dated November 9,1989, passed by Chief Judicial Magistrate, Jalore, by which the learned Chief Judicial Magistrate ordered to deliver the truck No. G. R. W. 304 to Sushila Devi the power of attorney-holder of Shri Chunni Lal.
(2.) THE brief facts of the case arc that the petitioner Bheem Raj purchased the truck No. G. R. W. 304 for a consideration of Rs. 1,55. 001/- from Shri Kishori Lal S/o Shri Basti Mal on June 26, 1986 and paid an amount of Rs. 50,001/-on that day and the remaining amount was to be paid in three instalment, consisting of Rs. 20,000/- payable January 1, 1989, Rs. 30,000/- payable on December 15, 1989 and the remaining 55,000/- were to be paid on monthly instalments of Rs. 4000/-, each. THE balance amount was to be paid by interest-free instalments. An agreement was executed on June 26, 1989 and the possession of the truck was delivered by Shri Kishori Lal to Shri Bheem Raj on the same day. On October 11, 1989, Shri Kishori Lal lodged a first information report at police Station, Jalore, to the effect that he sold the truck No. G. R. W. 304 to Shri Bheem Raj Soni for a consideration of Rs. 1,55,001/- and Shri Bheem Raj Soni paid a sum of Rs. 50,001/- on the same day and the remaining amount was to be paid subsequently in instalments, but he has not paid the balance amount and has changed the Chassis number and engine-number and has obtained a false Registration Certificate etc. It was also mentioned that he has changed the registration number, also. On the basis of this report, a case under Section 420, 467,468, 471/20-B, I. P. C. was registered against the petitioner and the truck was seized. After the seizure of the truck, Shri Kishori Lal as well as the petitioner Bheem Raj. both moved application under section 451, Cr. P. C. , for delivery of the truck to them and the learned Civil Judge cum Chief Judicial Magistrate, Jalore, rejected both the applications. THE application filed by Shir Bheem Raj was rejected by the order dated October 24, 1989, while the application filed by Shri Kishori Lal was rejected earlier to that. THEreafter application under section 457, Cr. P. C. were moved and the learned Chief Judicial Magistrate, by his order dated November 9, 1989, for the delivery of the truck to Smt. Sushila Devi - the power of Attorney-holder of Shri Chunni Lal, on certain conditions this is against this order that this miscellaneous petition under Section 482, Cr. P. C. has been moved. It is contended by the learned counsel for the petitioner that he purchased the truck in question from Shri Kishori Lal S/o Shri Basti Mal - the husband of the power of Attorney-holder Smt. Sushila Devi (respondent No. 2) for a consideration of Rs. 1,55, 001/- on June 26,1989 and paid an amount of Rs. 50,001/- in part payment of the truck and the delivery of the truck was handed over to him. The agreement was also arrived -at between the petitioner and Shri Kishori Lal. After taking the delivery of the truck, the petitioner has spent about Rs. 15,000/- towards repairs of the truck and also deposited the Road Tax, etc. He has further submitted that as the delivery of the truck was given to him and he was in possession of the truck in question when the same was seized, the possession of the truck should have been restored to him. He has also brought to the notice of the Court that the Final Report in the case has been given and no case has been found by the police after necessary investigation and on that account, also he was the person best entitled for the delivery of the truck. In support of his contention, the learned counsel for the petitioner has placed reliance on : Hasti Mal Versus Bhoja and the State of Rajasthan (l ). The learned counsel for the respondent No. 2, appearing on behalf of Smt. Sushila, submitted that she is the power of Attorney-holder of Shri Chunni Lal, who is the registered owner and in whose name, the Registration Certificate stands and, therefore, she is the best entitled person for the delivery of the truck and the truck was rightly ordered to be given to her, It is also submitted by the learned counsel for the respondent No. 2 that after the delivery of the truck, the truck was produced in the Court of the Magistrate , First Class, Radhanpur (Gujarat), where it has been ordered to be delivered to Shri Chunni Lal and she is not in the possession of the truck in question. It has been further submitted that the Final Report has not yet been accepted and a protest petition has been filed and the matter has not yet been decided by the Chief Judicial Magistrate. I have considered the rival submissions made by the counsel for both the parties. It is not in dispute that the truck in question was sold by Shri Kishori Lal to the present petitioner and an agreement dated June 26,1989 was executed between the parties and the possession of the truck was handed-over to Bheem Raj by Shri Kishori Lal. An amount of Rs. 50001/- was paid on June 26,1989 as a part- consideration of the price of the truck in question and the remaining amount was to be paid in instalments. It is not in dispute that on the basis of the F. I. R. , lodged at the police Station, Jalore the truck was seized from the custody of the petitioner Bheem Raj and in those proceedings, a Final Report has been submitted by the police. From all these facts, it is clear that on the relevant date, when the truck was seized by the police in pursuance to the first information report lodged by Shri Kishori Lal, the possession of the truck was with the present petitioner. He was in lawful possession of the truck as he had purchased the truck from Shri Kishori Lal for a consideration of Rs. 1,55,001/ -. When Shri Kishori Lal sold the truck to the petitioner with the consent and authority of the respondent No. 2, he cannot be permitted to get the delivery of the truck back, merely on the pretext that the respondent No. 2 is the power of Attorney-holder of Shri Chunni Lal Gopal who is the registered owner of the truck. If any amount remained out-standing then he could recover the same by way of filing civil suit or other wise, but the criminal proceedings are not meant for taking such a recourse. In the facts and circumstances of the case, the truck in question should have been given to the petitioner Shri Bheem Raj, who is the bonafide purchaser of truck and the respondent No. 2 was not entitled for the delivery of the truck. The contention of the respondent No. 2 Smt. Sushila Devi that the truck in question is not in her possession and has been produced in the Court of the Magistrate, First Class, Radhanpur, will also be of no avail to her, because the truck was handed-over to her on 'supurdginama' on certain conditions and she has to produce the truck as and when directed by the Court. She cannot take any pretext that the truck is not in her possession. Learned counsel for the respondent No. 2 has produced on record the photo-stat copy of the certified copy of the compromise arrived at between Shri Chunni Lal Gopalji and Smt. Sushila Devi. That compromise was produced by Shri Chunni Lal and Smt. Sushila Devi in the Court of the Magistrate, First Class, Radhanpur. A bare reading of this compromise clearly shows that was a device invented by the respondent No. 2 for not producing the truck in the Court of the Chief Judicial Magistrate, Jalore, so that the petitioner may not be able to get the delivery of the truck in question Such type of device cannot be permitted. Even on this core, also, the respondent No. 2 is not entitled for the delivery of the truck in question.
(3.) IN the result, this miscellaneous petition is allowed and it is held that the petitioner is better entitled for the delivery of the truck No. G. R. W. 304. The respondent No. 2 is directed to produce the truck in the Court of the Chief Judicial Magistrate, Jalore, within a period of one month from today, failing which the learned Chief Judicial Magistrate will be entitled to proceed against her in accordance with law. .;