IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1369 OF 2008 Mangalwedha Urban Co.op.Bank Ltd. ..Petitioner. versus 1. Maruti @ Madhukar @ Nanasaheb Pandurang Ingole. 2. Tanaji Shivaji Bhosale. 3. Dattatraya Vitthal Jadhav. 4. Haridas Bhausaheb Gaikwad. .. Respondents. AND CRIMINAL WRIT PETITION NO.1801 OF 2007. Tanaji Shivaji Bhosale. ..Petitioner. versus 1. Maruti @ Madhukar @ Nanasaheb Pandurang Ingole. 2. Dattatraya Vitthal Jadhav. 3. Haridas Bhausaheb Gaikwad. 4. The Branch Manager, The Manglvedha Urban Co.op. Bank Ltd. 5. The State of Maharashtra. ..Respondents. .... Mr.V.V. Purwant, for the Petitioner, in Crim.W.P.No.1801/2007. Mr.Surel S.Shah, for the Respondent No.1, in Crim.W.P.No.1801/2007. Mr.Umesh Mankapure, for the Respondent No.2, in Crim.W.P.No.1801/2007. Mrs.P.P.Shinde, APP, for the Respondent-State,in both the writ petitions. Mr.Surel S.Shah, for the Petitioner, in Crim. W.P.No.1369/2008. Mr.V.V.Purwant, for the Respondent No.2, in Crim. W.P.No.1369/2008. Mr. Umesh Mankapure, for the Respondent No.3, in Crim.W.P.No.1369/2008. .... CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 23rd September 2008. : 23rd September 2008. : 23rd September 2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. Submissions of the learned counsel appearing for : 2 : the parties were heard on the last date. Since the challenge in both the petitions is to the same order passed by the Trial Court, the petitions can be disposed of by a common judgment. 2. One Tanaji Bhosale filed a private complaint alleging commission of offence under sections 379, 504, 506 read with section 34 of the Indian Penal Code. One Maruti @ Madhukar Nanasaheb Pandurang Ingole, Dattatraya Vitthal Jadhav and Haridas Bhausaheb Gaikwad were shown as the accused in the said complaint. According to the case made out by the said Tanaji, he had purchased a tempo trax on 27th March 2006 by availing finance from the Mangalvedha Urban Co-operative Bank Limited (hereinafter referred to as ‘the said Bank’). According to the case made out by the said Tanaji, he could not pay instalments to the Bank due to various reasons and therefore, he decided to sell the said vehicle. According to his case, the accused agreed to purchase the said vehicle at the price of Rs.3,47,500/-. According to said Tanaji, there was an oral agreement by which it was agreed that a sum of Rs. 1 lac was to be paid towards the price at the time of delivery of the vehicle and on 13th January 2007, a sum of Rs.47,500/- was to be paid to the said Tanaji. According to Tanaji, the balance amount of Rs.2 lacs was to be paid to him by : 3 : 14th March 2007. According to his case on 8th January 2007, the accused paid a sum of Rs.1 lac to him and obtained delivery of the vehicle. According to the case of the said Tanaji, the accused nos.1 and 3 met him on 31st January 2007 and demanded the refund of the advance paid by him against the delivery of the vehicle. According to the case of Tanaji, he immediately repaid a sum of Rs.1 lac to accused nos.1 and 3 in presence of the witnesses and obtained possession of the vehicle. According to the case of said Tanaji, on 8th February 2007, the accused-complainant alongwith two unknown persons, came to the hotel premises of the said Tanaji, they abused the said Tanaji and by threatening the said Tanaji and his driver, snatched the key of the vehicle and took away the vehicle. As the police did not take cognizance of the offence, the private complaint was filed by the said Tanaji. 3. On the said private complaint, the learned Judicial Magistrate, First Class, Pandharpur passed an order dated 23rd July 2007 under section 94 of the Code of Criminal Procedure, 1973 and directed that search warrant be issued to take the search of the vehicle. The search warrant was executed on 14th August 2007 and the vehicle was produced before the Court on 16th August 2007. : 4 : 4. The complainant Tanaji filed an application under section 451 of the Code of Criminal Procedure, 1973 for interim custody of the said vehicle. An application was also made by the said Bank for the custody of the seized vehicle. By Judgment and Order dated 12th September 2007, the learned Magistrate rejected both the applications. He however directed that the custody of the vehicle shall be handed over to Dattatraya Vitthal Jadhav who has been arraigned as accused no.2 in the complaint. The learned Magistrate while rejecting both the applications observed that the said Dattatraya paid a sum of Rs.1 lac to Tanaji and was ready to pay the balance amount of Rs.2,47,500/-. The learned Judge observed that there was no prima-facie evidence on record to show that Tanaji had returned the sum of Rs.1 lac to the said Dattatraya. The learned Judge held that as Tanaji had agreed to sell the vehicle to Dattatraya, he is not entitled to custody. He held that the Bank had a remedy available under the law and the Bank was not entitled to custody. Therefore, the learned Judge proceeded to pass a direction for handing over the custody of the vehicle to the said Dattatraya. 5. Criminal writ petition no.1801/2007 has been filed by the said Tanaji for challenging the said order. : 5 : Criminal writ petition no.1369/2008 has been filed by the said Bank. 6. The submission of the learned counsel appearing for the said Tanaji is that the said Dattatraya had never prayed for custody of the vehicle and the applications were made only by him and the said Bank. He submitted that being the registered owner of the vehicle, he was entitled to custody. He submitted that in view of this position, custody could not have been granted to the said Dattatraya. The submission of the learned counsel appearing for the Bank is that the said Tanaji has committed defaults and on his own showing that he purported to transfer the vehicle as he could not repay the loan to the said Bank. He, therefore, submitted that the custody ought to have been given to the Bank. The learned counsel appearing for the said Dattatraya supported the impugned order by submitting that the vehicle was in the custody of the said Dattatraya at the time of the seizure and therefore, the Court was right in granting custody in favour of the said Dattatraya. 7. I have considered the submissions. The trial of the complaint is not likely to conclude in near future. The value of the vehicle will considerably diminish if : 6 : it continues to lie idle in the custody of the Court. Therefore, till the disposal of the complaint, appropriate order will have to be passed as regards the custody. Initially, this Court made an attempt to work out an arrangement by consent of the parties. However, the said Tanaji who is the registered owner is not in a position to pay and clear the dues of the Bank. The said Dattatraya is not in a position to deposit the balance consideration of Rs.2,47,500/-. The case of the said Tanaji in the complaint is that he admittedly accepted a sum of Rs.1 lac from the accused and handed over the custody of the vehicle to the accused and subsequently refunded the sum of Rs.1 lac. Prima-facie there is no material on record to show that the said Tanaji repaid a sum of Rs.1 lac to the said Dattatraya or to the accused persons. On his own showing, Tanaji had parted with the possession of the vehicle by accepting a sum of Rs.1 lac and in absence of prima-facie evidence on record to show the repayment of Rs. 1 lac by him, the custody cannot be granted to him. The said Dattatraya claims to have paid only a sum of Rs.1,00,000/- to the said Tanaji out of the total price of Rs.3,47,000/-. His counsel stated that he is not in a position to deposit the balance amount of Rs.2,47,500/-. He stated that the said Dattatraya is not in a position to clear the dues of the Bank. : 7 : 8. The order under section 451 of the said Code is never final and is interlocutory in nature. As of today, custody of the vehicle cannot be given to Dattatraya, as he is not in a position to pay alleged balance consideration. The said Tanaji is not in a position to repay the loan taken from the Bank. The Bank appears to be having a charge over the said vehicle for repayment of the loan. Therefore, the only order which can be passed is of handing over the interim custody of the vehicle to the Bank. If any of the parties is in a position to settle the entire dues of the Bank, a fresh application can always be made before the learned Magistrate for grant of custody of the vehicle. 9. Hence, I pass the following order :- (1) The impugned order is quashed and set aside. The petitioner in writ petition no.1369/2008 i.e. the Mangalwedha Urban Co-operative Bank Ltd. shall be entitled to the custody of the vehicle, subject to executing indemnity bond in the sum of Rs.4,00,000/- and subject to further condition that the Bank will not sale or transfer the vehicle without the prior : 8 : permission of the Trial Court. (2) It is made clear that the aforesaid conditions imposed while grating custody to the petitioner-Bank will not prevent the petitioner-Bank from adopting appropriate proceedings in accordance with law before the Appropriate Authority/Forum for seeking recovery of the amount due and payable by the said Tanaji and/or seeking permission to sale or dispose of the vehicle for recovery of its dues. (3) The petitions are disposed of in above terms with no orders as to costs. [ A.S.OKA, J.]