- (1.) THIS revision petition has been directed against the order passed by Additional Sessions Judge, Beawar dated 3rd July, 1961 reversing the order passed by Additional Chief Judicial Magistrate, Beawar dated 5th Novem-ber, 1986 in an application for interim custody of the tractor bearing registration No. RSZ-2437.
(2.) BRIEF facts leading to this petition are that the petitioner Hastimal's driver Durga Singh lodged a report at Beawar City Police Station on ! 1th Sept. 1986 alleging that he is working as a driver with petitioner Hastimal who had given in his charge one tractor mark 'ford' bearing registration No. RSZ 2437 along with a compressor drilling machine and few more accessories. On 5th September, 1986 one man whose name was Bhoja and who is known to him approached him and accompanied him to a place known as Chang Gate. He (Durga Singh) got clown for taking some goods. By that time, this man (Bhoja) escaped with the tractor and its accessories. He informed his master i. e. the petitioner. Thereafter for 2-3 days there were negotiations between the parties but Bhoja refused to return the tractor which he had stolen. On receipt of this report, a case for offences under Section 379 I. P. C. was registered. Accused non-petitioner Bhoja was arrested on 15th October, 1986 and on an information furnished by him under Sec. 27 of the Evidence Act, the, tractor was recovered on 16th October, 1986. When the tractor was seized, the petitioner as well as the non-petitioner No. 1 both moved applications before the learned Additional Chief Judicial Magistrate, Beawar for handing over the tractor on Supurdginama during the pendency of the case. Petitioner's case before the learned Additional Chief Judicial Magistrate was that the aforesaid tractor was initially registered in the name of Shri Tolaram who sold it to one Onkar Singh. Onkar Singh in turn sold the tractor to one Shyam Singh. Shyam Singh thereafter sold it jointly to Raju Singh, and Samda. Samda later on settled the accounts and withdrew his ownership and Raju Singh remained the sole owner of the tractor. It was from Raju Singh that petitioner Hastimal purchased it for Rs. 1,00,000/- on 20th Aug-ust, 86 and paid Rs. 5000/- as advance. It is pleaded that with giving of this advance (SAI) of Rs. 5000/- Raju Singh handed over the possession of the tractor to the petitioner. Rest of the amount was to be paid in instalments of Rs. 12,000/-each. It was further pleaded that since after the date of purchase i. e. 20th August, 1986 he continued to be in possession of the tractor but on 5th September, 1986 the non-petitioner No. 1 Bhoja came along with some more persons and without the permission of the petitioner removed it along with compressor and other accessories. The report of this was lodged at Beawar police station and the tractor has been seized. It was further mentioned in the application that on 17-10-1986 (it should have been 17-10-1985 and appears to have been wrongly written in the application as 17-10-1986) this tractor was purchased by Shri Bhoja and Lilaram for a sum of Rs. 1,20,000/- and they had to pay instalments at the rate of Rs,15,000/- per month with 2% interest to Shri Rah Singh but the conditions of agreement were violated. Therefore, Raju Singh served a notice on Bhoja and Bhoja in turn returned the tractor with all accessories to Raju Singh, who appointed Narain Singh as a Manager for operating this tractor. Since then till the sale to the petitioner, the tractor was in possession of the petitioner. It was, therefore, prayed that he being the original owner and claimant of the property and further because non-petitioner No. 1 Bhoja committed the theft, the property should be given to him on Supurdginama during the pendency of the case. The non-petitioner No. 1 Bhoja in his application submitted that by virtue of the agreements dated 17th October, 1985 and 6th October, 1986 he is the owner of the tractor and it is he who deposited the road tax also. It was further mentioned that Shri Nenu Singh son of the registered owner late Shri Tolaram also executed a sale deed in his favour on 6th October, 1986. Replies and counter replies were filed to the application and certain affidavits were also filed by the rival parties. The learned Chief Judicial Magistrate vide his order dated 5th November, 1986 directed that the tractor be given on Supurdginama of Rs. 1,50,000/- to the petitioner. Aggrieved by this order, Bhoja, non-petitioner No. 1, preferred a revision petition before the learned Additional Sessions Judge, Beawar. A preliminary objection was raised by the petitioner about its maintainability besides arguing on merits. The learned Additional Sessions Judge by his order dated 3rd July, 1987 reversed the order of the learned Additional Chief Judicial Magistrate and directed that the tractor be delivered to non-petitioner No. 1, Bhoja. It is against this order that the petitioner has filed this revision petition. Shri Rastogi, appearing along with Shri B. M. Sharma for the petitioner, submitted that the learned Additional Sessions Judge had no jurisdiction to entertain the revision petition filed before him inview of Sub-Sec. (2) of Section 397 Cr. P. C. as the order passed by the Additional Chief Judicial Magistrate, Beawar was an interlocutory order and no revision would lie. It is further submitted that there is over-whelming evidence on record to suggest that after a notice was served on the non-petitioner by Raju Singh regarding non-payment of instalments, non-petitioner Bhoja voluntarily delivered the possession of the tractor to Raju Singh. It is submitted that the learned Additional Sessions Judge did not apply his mind to all the documents placed on record and that he has read the documents in between lines and has derived erroneous conclusion, it is submitted that Raju Singh had rightfully received the tractor back from Bhoja and a valid transaction took place between the petitioner and Raju Singh. It is submitted that immediately when the agreement to sale was executed and Rs. 5,000/- were given in advance to Raju Singh, the possession of the tractor was handed over to him. Attention was also drawn to the various documents placed on record by the petitioner and the documents submitted along with the charge-sheet which has been submitted in the Court of Additional Chief Judicial Magsi-trate on 29th November, 1986 i. e. 24 days after the Additional Chief Judicial Magistrate had passed the order. Several authorities were cited by the learned counsel for the petitioner on point that the question of title has not to be gone into for handing over the possession in Supurdginama and that possession should not be given to the accused as the same would amount to putting premium on the crime committed by him. Citations were also given on the question that endorsement of the transfer of the vehicle in the records of the registering authority is not a condition precedent to the transfer and the deal is not rendered illegal. The reliance was placed on Banne Singh Versus the State of Rajasthan (1), P. K. Panda Vs. Smt. Premlata Choudhary (2), M/s. Automobile Transport Pvt. Ltd. vs. Dewalal (3), Dhirajlal Girdharilal Vs. Commissioner of Income Tax, Bombay (4), Makbook Khan Vs. The State of Rajasthan (5), Kailash Chandra Vs. Parasmal (6), M. J. Velu Mudaliar Vs. Sri Venkateswara Finance Corpn. (7) and The Oriental Fire and General Insurance Co. Ltd. , Vs. Smt. Vimal Rai (8 ). Mr. Dhankar, appearing on behalf of the non-petitioner No. 1 submitted that present case is an example of high handedness of a rich man on a poor cultivator. It is submitted that the petitioner who comes from the rich family and belongs to a traders community has with the assistance of the police deprived the non-petitioner of his livelihood as he belongs to inferior community. It is further submitted that there is no document to suggest that at any point of time Bhoja handed over the possession of the tractor to Raju Singh. It cannot be conceived of that Bhoja who has given Rs. 25,000/-at the time of the initial agreement and thereafter paid two instalments of Rs. 15,000/- each to Raju Singh and Rs. 15,000/- to Samda and Rs. 25,000/- to Nenu Singh, son of the registered owner Tolaram would part with the possession of the tractor and return it to Nenu Singh. It is submitted that the petitioner has not purchased the tractor but purchased the litigation and entered into the deal with Raju Singh fully knowing that with the might of his money he would deprive the petitioner of the tractor as it is impossible to believe that any party would hand over the property worth Rs. l,00,000/- only against any advance of Rs. 5,000/ -. Learned counsel for the petitioner further submitted that there is no illegality, impropriety or the otherwise error in the order of the Additional Sessions Judge so as to warrant an interference in revision petition. Learned counsel for Bhoja has placed reliance on Sheonarain Panwar Vs. State of Bihar (9), Maina Vs. Niranjan Singh (10), Champalal Vs. Ramchander (11), Hardam Singh Vs. Vidya Sagar (12), Jahoor Khan Vs. The State (13), Suit. Padamadevi Vs. Gurbaksh Singh (14), Jacob Vs. Jayabharat Credit and Investment Co. Ltd. , (15) and Dina Nath Vs. Hansraj (16 ). I have given my earnest consideration to the rival contentions and have perused the record and have carefully gone through the case law cited by both the parties.
(3.) REGARDING the question of maintainability of the revision before the learned Additional Sessions Judge by Bhoja, suffice it to say that the learned Additional Sessions Judge has arrived at a finding after careful discussion of the case law. He has distinguished between the provisions of Sec. 451 and 457 of the Code of Criminal Procedure and has rightly observed that Section 451 Cr. P. C. was not applicable as the property was not produced before any Criminal Court during inquiry or trial and, the order of the learned Chief Judicial Magistrate could not only be purported to have been passed under Sec. 457 Cr. P. C. He has decided the point after discussing the judgments of this Court and their Lordships of the Supreme Court and I do not find that the approach taken by him is incorrect. Hence, the revision petition before the learned Additional Sessions Judges was maintainable and since the order was reversed, this petition could also be filed. Coming to the merits of the revision petition, I would not like to go in much details of the case since discussing the case on merits at this stage may ultimately prejudice the case of either parties either at the trial of the case or when the order regarding final disposal of the property is passed and also because I am in agreement with the findings arrived at by the learned Additional Sessions Judge. A vast discretion is given to the Court for delivering the proper custody of the property pending the conclusion of inquiry or trial and, therefore, it has to be distinguished then the order which is to be passed under Section 452 Cr. P. C. where possession is to be delivered to a person claiming to be entitled to the possession thereof. While delivering the property under Section 451 Cr. P. C. , the same can even be delivered to a third person if the Court so chooses, hence, the consideration should be as to how ends of justice can be best served and equity can be maintained. It is also not essential to go into the niceties of law or technicalities at this stage. It is in the facts and circumstances of each case where considering the question of hardship, balance of convenience prejudice to the rights of parties, maintenance of the property during the course of custody so on and so forth which may be the consideration besides the others which have already been laid down in series of decisions of this Court and the Supreme Court. In the instant case, admittedly the registered owner till date on record is Tolaram who is since dead and it is only with the consent of Nenu Singh, his son, that the registration certificate can be transferred in the name of subsequent purchaser. It is also admitted case between the parties that without change in registration certificate, the ownership was transferred from one to another and lastly it came in the joint possession of Raju Singh and Samda from where the trouble has started. It is borne out from the record that ail transactions had been in the nature of the agreement to sale and none of them was complete in as much as when Raju Singh and Samda purchased jointly it on 27th April, 1985 from Shyam Singh, it is borne out from the statement of Onkar Singh that Rs. 33,000/- were to be paid to Nenu Singh s/o Tola-ram against this tractor who was the original owner. This tractor when sold later on to Raju Singh and others even at that stage Rs. 33,000/- were due to be paid to Nenu Singh and according to Onkar Singh, Nenu Singh told him that Raju Singh promised him to pay Rs. 33,000/- Money also remained to be paid to Shyam Singh according to his statement. From the statement of Nenu Singh it has come out that whoa the tractor was sold to Onkar Singh Rs. 33,000/- were due and they remained due even when it was sold to Shyam Singh. Raju Singh had also promised him to pay the money when he purchased from Shyam Singh, Later on Raju Singh sold the tractor to Bhoja and Lilaram and Rs. 25. 000/-were taken by Raju Singh against the total price of Rs. 1,20,000/ -. At that time Raju Singh withdrew the tractor but still money was not paid to him. It has further been stated by Nenu Singh that since there was a bank loan against him on tractor, Bhoja cleared the loan and he gave him in writing that he has no objection regarding the transfer of the vehicle in the name of Bhoja. Thus, there is no doubt that even if the other evidence about the endorsement is not accepted even then at least Rs. 50,000/- have been spent by Bhoja against this tractor and in case statement of Raju Singh is accepted as against this, petitioner Hastimal has paid only Rs. 5,0c0/- against the tractor to Raju Singh that too has been named as advance (SAI ). I am unable to conceive of that tractor would have been returned by Bhoja voluntarily when he had already paid Rs. 25,000/- in advance and than cleared the bank loan against Nenu Singh subsequently to be given to a person for an amount of Rs. 5,000/ -. This transaction does not inspire the confidence. May be that the learned Additional Sessions Judge might have not read the documents correctly, yet even on the other evidence his findings are not such which requires an interference in revisional jurisdiction. I have already mentioned that it is an order of concurrence and expression of opinion in a case like this, is likely to prejudice the rights of the parties, I would refrain from giving a detailed judgment. However, I am also of the opinion that safeguard must also be provided that in case the parly to whom the possession is not given, should not suffer in case it looses the case. The tractor, therefore, shall be given in possession on Superdginama to Bhoja as directed by the learned Judge except one more condition that Bhoja shall deposit a sum of Rs. 1000/- per month in the trial Court which money shall be deposited in bank by the Court. The amount so deposited in the bank shall be paid to the party which ultimately is found entitled to the possession of the tractor. It is made clear that if the instalment of Rs. 1000/- is not paid within one month of the due date, it will be open to the Court to seize the tractor and pass such appropriate orders thereafter as it deems proper. The money shall be payable by 15th of every month. The revision petition is decided accordingly. . ;