IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 368 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- GOVINDBHAI TEJABHAI BARIYA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR ASIM PANDYA for HL PATEL ADVOCATES for Petitioner MR BY MANKAD, APP for Respondent No. 1 MR BHARAT R PANDYA for Respondent No. 2 MR DF AMIN for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of decision: 14/12/2000 C.A.V. JUDGEMENT This is a Criminal Revision Application under Sec.397 of the Criminal Procedure Code, 1973, (for short `Cr.P.C.') filed by Revision-Opponent No.2 of Criminal Revision Application No.47/2000 which was pending on the file of the learned Sessions Judge, Panchmahals at Godhra, challenging legality, correctness and propriety of judgment Exh.14 dated 8th August, 2000, rendered by learned Sessions Judge, Godhra, in aforesaid Criminal Revision Application No.47/2000. 2. Here in this Criminal Revision Application, the revision petitioner is, as alleged by him, a bonafide purchaser (who will be referred to as purchaser) for value without notice, of Tractor No.GJ-17-T 1456 and Trolly No.GU-17-X 1489 attached to that Tractor (Both will be referred to as `the vehicles' for convenience). The revision opponent No.2 is a Credit Society carrying on business of financing, by lending money to the owners of different vehicles. That Credit Society will be referred to as the society for convenience while revision-opponent No.3 is, as per his case, an owner of said tractor and trolly (vehicles) and as per RTO record that two vehicles are registered in name of revision opponent No.3 and therefore his case is that he is an owner of said two vehicles and, therefore, parties will be referred to hereinafter as "purchaser", "society" and "the owner" respectively at appropriate places. 3. The facts leading to this present Criminal Revision Application in a nutshell are as follows: 3.1 As per record of police papers supplied by learned APP, revision - opponent No.3 purchased tractor from Bharat Tractors, Panchmahals at Godhra, on 28th January, 1998. He entered into Hire Purchase Agreement with society i.e. Revision-Opponent No.2 on or about 18.12.1997. When he entered into Hire Purchase Agreement with society, he executed a promissory note for Rs.2,92,500/- in favour of society on 18th December, 1997. On that very day, he also executed other connected relevant documents alongwith Hire Purchase Agreement. It also appears from record that, the owner agreed upon to repay the amount of loan taken from society by equal 36 instalments, each of Rs.8100/- during the period from 18th January, 1998, to 18th December, 2000. It appears from police papers that owner had deposited Rs.73,500/in the office of society on 18th December, 1997, and on that very day he also took a loan of Rs.2,92,500/- from the society. 3.2 As it reveals from police papers and as per the case of purchaser, who is a revision petitioner, in the month of December 1997, he got purchased said two vehicles through the owner from Bharat Tractor Company but before that the owner had recovered in all Rs.2,20,000/- by instalments from purchaser. The purchaser entered into such transaction with regard to vehicles through his Broker Raising Kalu Damor. After purchase of said two vehicles from the dealer, the purchaser took possession of that two vehicles and brought them to his residence. Thereafter, the owner made a telephone to the purchaser and asked him to come with tractor and trolly to Godhra for registration of said vehicles in the RTO office. The purchaser, in company of his brother and driver Ramabhai Kalubhai, went to the field of owner and thereafter owner took the possession of that tractor and trolly and parked that two vehicles in his filed and asked the purchaser to bring an amount of Rs.90,000/-. He also informed the purchaser that he (owner) would not hand over the possession of said two vehicles to him (purchaser) unless and until the tractor is registered in the RTO office. As the owner took over the possession of vehicles and parked them in his field and asked him to pay further amount of Rs.90,000/, there was a hot discussion in between owner and purchaser and he (owner) informed the purchaser that he would not part with the possession of the vehicles unless and until the purchaser would pay Rs.90,000/-. It is the case of the purchaser, that one week thereafter, he went to Godhra and paid Rs.90,000/- to owner. Thereafter, the owner went to Dohad and handed over the registration book issued by RTO. Thus, it is the case of the purchaser that he has paid in all Rs.3,10,000/- to the owner and purchased that two vehicles and got the physical possession of said two vehicles from the owner. 3.3 From record it appears that, thereafter on or about 23.6.99, the owner lodged his complaint in Godhra Town Police Station, alleging inter-alia in the complaint that his tractor and trolly have been stolen away from his field. That complaint came to be registered as C.R.No. I 207/99. The police started to conduct police investigation and after making thorough investigation, on or about 24.9.99, the police made a report that no fruitful result has come out so far as that vehicles are concerned and, therefore, police made a report to Court for grant of `A' summary with a permission to keep the investigation continued in case if vehicles are traced out. 3.4 Thereafter, on or about 10.1.2000, police seized said two vehicles from the purchaser and total amount of value of vehicles was assessed at Rs.2,92,000/which is stated in Muddamal Pavty. Thereafter, the Investigating Officer submitted his final report under Sec.173 of Cr.P.C. to Court on 30.4.2000 and submitted that owner and the employees of the society in collusion with each other, arranged for false complaint being filed by the owner and in view of that fact, `B' summary be issued in the case. The Investigating Officer also recommended that said two vehicles be handed over to the purchaser Govindbhai Tejabhai Baria. It also appears from the record that the learned Chief Judicial Magistrate, Panchmahals at Godhra, ordered to issue a notice against the complainant i.e. owner/Revision Opponent No.3. As submitted by the learned advocates for both the parties, the learned Chief Judicial Magistrate has not yet granted `B' Summary to Investigating Officer. 3.5 Before the Investigating Officer could submit his report under Sec.173 of Cr.P.C. on 30.4.2000 to the learned Chief Judicial Magistrate, the purchaser submitted one application to the learned Chief Judicial Magistrate on 1.4.2000 with a request to hand over the possession of said two vehicles to him as he is a bonafide purchaser for value without notice. The learned Chief Judicial Magistrate called for the report from the Investigating Officer. Thereafter, after perusing the record of the police papers and after hearing the arguments of the learned advocates for both the parties, the learned Chief Judicial Magistrate passed an order dated 5th May, 2000, below application of purchaser and ordered the possession of said two vehicles to be given to the purchaser if that purchaser furnishes a PR Bond of Rs.2 Lacs with solvent surety of like amount with a condition that he would produce the said vehicles as and when he would be ordered by the court to produce the same. When that application was heard, the society appeared before the Court and advanced its case through its advocate Mr.B.H.Dave and therefore when application of purchaser was decided, the society was given full opportunity of being heard. 3.6 As the learned Chief Judicial Magistrate, Godhra (who will be referred to as `the learned Magistrate') passed an order in favour of purchaser, the society preferred a Criminal Revision Application No.47/2000 to the Sessions Court, Panchmahals at Godhra. The original owner of the vehicles also preferred a Criminal Revision Application No.50/2000. The learned Sessions Judged heard and decided said two applications together and disposed of that two Criminal Revision Applications by one common judgment. The learned Sessions Judge after perusal of the record and proceedings of the case and after hearing the arguments of the learned advocates for both the parties, rendered his judgment Exh.14, dated 8th August, 2000. By that judgment Exh.14, the learned Sessions Judge allowed the Criminal Revision Appln. No.47/2000 filed by the society and rejected the Criminal Revision Appln. No.50/2000 filed by the owner. The learned Sessions Judge by rendering his said judgment Exh.14 set aside an order dated 5th May, 2000, of the learned Chief Judicial Magistrate and ordered to handover the possession of said two vehicles to the society if society furnishes PR Bond of Rs.3 Lakhs with surety. He also imposed certain conditions to be complied with by the society. 3.7 Being aggrieved against and dissatisfied with the said judgment Exh.14 dated 8th August, 2000, of the learned Sessions Judge rendered in Criminal Revision Appln. No.47/2000, the purchaser has preferred this present Criminal Revision Application. 4. I have heard Shri Asim Pandya, learned advocate for the Revision-Petitioner, Shri B.Y.Mankad, learned APP for the Revision-Opponent No.1 i.e. the State, Shri B.R.Pandya, learned advocate for the Revision-Opponent No.2 i.e. Society and Shri D.F.Amin, learned advocate for the Revision-Opponent No.3 i.e. the owner. I have gone through the judgment which is challenged in this application. I have also gone through the original police papers supplied by learned APP. 5. Before I deal with the contentions of rival parties, it would be appropriate in the fitness of things to place on record certain legal position with regard to scope and ambit of the powers of the High Court while dealing with such type of revision application. In case of Khetra Bas Sarnal & Another Vs. State of Orissa, reported in AIR 1970 SC 272, it has been held that the revisional jurisdiction conferred on the High Court under Sec.439 of the Old Act, is not to be lightly exercised. In case of K.K. Chhinaswamy Reddy Vs. State of Andhra Pradesh & Anr. reported in AIR 1962 SC 1788, it has been held by the Hon'ble Supreme Court that the revisional jurisdiction should be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure or there is manifest error on a point of law and consequently, there has been a flagrant miscarriage of justice. It has been held in the case of Meghaji Godadji Thakore & Mebuji Keshuji Darbar Vs. State of Gujarat, reported in 1992 Cr.LR (Guj.) 519. It has been held by this Court that the revisional jurisdiction sweep of this Court in a revision like one on hand is very much circumscribed. Ordinarily, revisional Court will be at loath to interfere with the concurrent findings of fact unless and until the misreading of evidence or perversity or manifest error of law or miscarriage of justice is successfully pointed out. 5.1 Here in this case, the learned Magistrate of the trial court passed an interim order which is in nature of discretionary order for handing over the muddamal vehicles to the purchaser who is a revision petitioner before this Court. It is an admitted fact that no appeal lies against such type of an interim order in as much as discretionary order. At the same time, such type of orders can be challenged by filing a Criminal Revision Application under Sec.397 of Cr.P.C. either in the Sessions Court or in the High Court. Here in this case, by feeling aggrieved against the said order of muddamal vehicles to be handed over to the purchaser, the society as well as owner had filed their individual separate Criminal Revision Applications in the Sessions Court Godhra and the learned Sessions Judge decided that two Criminal Revision Applications bearing Criminal Revision Appln.. No.47/2000 filed by society and other bearing Criminal Revision Appln. No.50/2000 filed by the owner by one Common Judgment. The learned Sessions Judge rejected Criminal Revision Appln. No.50/2000 filed by the owner but he, by allowing Criminal Revision Appln. No.47/2000 set aside an order of the learned Magistrate and passed an order directing muddamal vehicles to be handed over to the society under certain terms and conditions. Under these circumstances, it is required to know as to what is the scope and powers of the learned Sessions Judge while dealing with and deciding such type of applications. In case of Sushilaben Mohanlal Vs. Mali Chunilal Hargovind reported in 1991(1) GLH 342 wherein it has been held by this Court that the jurisdictional sweep of revisional court in a case like the one on hand is very much circumscribed and therefore the revisional court will be loath to interfere with the finding of the trial court unless and until the perversity is successfully spelt out. In case of Arunaben Tuljaram Ramanuj Vs. Vasudev Pranjivan Nimavat and Another reported in 1993(2), 34(2) GLR 1232 wherein this Court has held in Para 3 as follows: "It is a settled principle of law that revisional powers are not appellate powers. The learned Additional Sessions Judge appears to have entertained an illusory belief that he was exercising appellate powers with respect to the Revisional Application on hand. Without coming to the conclusion that the findings recorded by the learned trial Magistrate were perverse, the learned Additional Sessions Judge was pleased to upset the findings recorded by the learned trial Magistrate simply because on reappreciation of evidence on record he chose to come to a different conclusion then approach of the learned Additional Sessions judge cannot be upheld in law." In case of Aarefabanu Majidkhan Pathan @ Kalubhai Panwala Vs. Mohammad Hanif Hussainmiya Shaikh & Anr. reported in 1994(1), 35(1) GLR 886, wherein it has been held by this Court as follows: "The learned Additional Sessions Judge was conscious of circumscribed jurisdiction which he was exercising. It is indeed true that the jurisdiction which the learned Additional Sessions Judge was exercising was limited and qualified. The interference of the Court would be justified where the decision rendered by the Court below is patently or grossly errorneous or there was no compliance with the provisions of law and that there was a violation of the statutory requirements. The interference could also be caused if it is found that the finding of fact, which was germane to the main issue to be decided by the revisional Court, was not in consonance with the evidence which were brought before the trial Court. The revisional jurisdiction would have also afforded an opportunity of interference to the revisional court if some evidence which was required to be considered for deciding the issue between the parties either was not at all considered or was considered in such a fashion that it could have been one so by a Judicial Tribunal reasonably conversant with the principles which govern the field." 6. In view of above legal position with regard to powers of learned Sessions Judge for deciding Criminal Revision Application filed to challenge a discretionary order passed by the learned Magistrate, this Court is required to examine the order which is challenged in this present Criminal Revision Application. The learned Sessions Judge has observed in Para 11 of his judgment Exh.14 that he was conscious with regard to a legal position that no interference could be made unless and until it is shown that the order of the trial court was not proper, reasonable and legal. He has also observed that powers of the revisional court are circumscribed. In spite of this, without coming to a definite finding to the effect that the order of the learned Magistrate was patently or grossly errorneous or there was no compliance of the provisions of law or that there was a violation of the statutory requirements by the lower court, he reversed the order as if he was sitting as an appellate Judge to make scrutiny of the order. I have gone through the order of the learned Magistrate. He has observed in Para 7 of his order that he had perused the report of the Investigating Officer meaning thereby he had gone through all the documents produced with the report of the Investigating Officer. He has assigned reasons for passing a discretionary order. That reasons are cogent and plausible. 7. In Criminal Revision Applications No.47/2000, the learned Sessions Judge has reappreciated the evidence on the record and come to a conclusion but for arriving at his conclusion he has not assigned reasons as to how the finding arrived at by the learned Magistrate is incorrect, illegal and improper and, therefore, the learned Sessions Judge has substituted his own decision in place of decision arrived at by the learned Magistrate on the basis of certain hard facts of the case. Thus, prima facie it appears that, the learned Sessions Judge has exceeded his jurisdiction by reappreciating the evidence and also by substituting his own decision in place of decision arrived at by the learned Magistrate and, therefore, it can certainly be said that the order of the learned Sessions Judge is not correct, legal and proper. 8. Here in this case, admittedly revision opponent No.3 is an owner of muddamal vehicles as per RTO record and he had entered into one Hire Purchase Agreement with revision opponent No.2 which is a society dealing with business of financing by lending money by creating its charge on the vehicle. It is also admitted fact that owner had entered into Hire Purchase Agreement with society with his undertaking to repay the amount of loan with interest by 36 instalments each of Rs.8100/- . He did not pay the amount of loan to the society and the society was bringing pressure on owner to repay the amount of loan together with interest. It is interesting to note that during the course of police investigation, which was carried out on the basis of complaint lodged by owner, the owner stated before the police that he had sold said two vehicles to present revision petitioner i.e. purchaser. This fact came to the notice of the society, also. From police papers supplied by learned APP Shri Mankad, it is crystal clear that Investigating Officer recorded statement of Nagindas Maganbhai Patel who is serving as Manager in the society on 10.1.2000. He has categorically stated in his statement before Police that in the beginning owner was making payment of instalments but since two years before 10.1.2000 he was not making payment of instalments timely and therefore society had to issue notice to the owner. The staff members of the society had also made demands from the owner but the owner was giving false excuses and therefore the owner was asked to hand over the possession of the tractor and trolly to the society. He was also asked to take back that tractor from the Society after making full payment of instalments which had become due. Thereupon, the owner informed the society that he had sold tractor to Govindbhai Tejabhai Baria of village Aagwada in Dohad District and that he (Govindbhai) would pay the amount found due from him and that he(Govindbhai) had gone outside by taking with him said tractor and trolly. Thus, society had come to know that the owner had sold that muddamal vehicles to Govindbhai Tejabhai Baria i.e. present revision petitioner. This witness Naginbhai Maganbhai has further stated before the Investigating Officer that thereafter that Govindbhai Tejabhai came to the society and paid Rs.25,000/for which receipt was issued to him. Thereafter, Harsing Tejabhai Baria, brother of purchaser made payment of Rs.10,000/to the society for which receipt was issued. Thereafter, one Raising Kalubhai Damor made payment of Rs.8000/and thereafter no further payment was made by the petitioner. Thus, it is the say of the society that the society came to know that owner has sold the muddamal vehicles to Govindbhai Tejabhai Baria and that very person i.e. purchaser paid in all Rs.43,000/- to the society and, therefore, it is not the case of either party that purchaser is in illegal possession of the vehicles. He was in possession of two vehicles under a sale transaction effected by the owner of the vehicles. 9. Shri B.R.Pandya, learned advocate for the society has strenuously argued that as per that agreement in between society and owner, there was a condition that without the consent of the society owner cannot sell vehicle to any other party and, therefore, the purchaser had entered into an illegal transaction. It may be an illegal transaction effected by owner because he contravened the condition of the agreement between society and owner but for purchaser he was innocent about the terms and conditions of the agreement. Merely because there is an entry with regard to HPA in RCA Book, the purchaser who is a villager residing in a small village of tribal area cannot have any idea that there was a term and condition in agreement executed by owner in favour of society that owner cannot sell the vehicles without the consent of the society. The society blows hot and clod. The society wants to take an advantage of receiving Rs.43,000/- from the purchaser and now the society has advanced his arguments that purchaser is in illegal possession of the muddamal vehicles. This type of contradictory arguments cannot be allowed to be advanced from the mouth of the society. 9.1 It is interesting to know that after making payment of Rs.43,000/- the society had continued to make demands from the owner and on one day owner came to society and gave a copy of complaint lodged by him for theft having been committed in respect of two vehicles and at that time the society inquired from owner as to why he lodged a false complaint in the police and thereupon owner informed the society that as he has lodged false complaint for theft of vehicles committed, he would get the money of the insurance claim from insurance company and then he would pay the amount due to the society. Thus, from statement of Manager of society it is crystal clear that society was in know of the following facts: (a) that owner has sold the vehicles to the purchaser (b) the purchaser paid Rs.43,000/- to the society (c) the owner has filed a false complaint of theft having been committed in respect of said vehicles. (d) on the basis of false complaint owner wanted to receive a claim from the insurance company and from amount of that claim, he agreed to repay the amount of loan to the society. 9.2 In spite of all these facts, the society has continued to advance the case that purchaser is not having legal possession of the vehicles. It is interesting to note that owner lodged complaint without stating name of any person as accused. As per his case, some unknown person has taken away his vehicles. While lodging the complaint, he was knowing the fact that he has sold the vehicles to the purchaser. After lodging the complaint on 23.6.99 neither accused nor vehicles could be traced out till, 9.1.2000. On 10.1.2000, the Investigating Officer seized said two muddamal vehicles from the present revision-petitioner. The revision petitioner advanced his case in his statement that he has purchased this vehicle from the owner and that he has paid in all Rs.3,10,000/- to the owner. The Investigating Officer has collected evidence with regard to transaction of purchase and payment of Rs.3,10,000/and ultimately on receiving the evidence the Investigating Office has come to a conclusion that owner, in collusion with employees of the society, lodged a false complaint and therefore the Investigating Officer has prayed for "B" summary from the