IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1292 of 2009 SHANKAR KUMAR @ SHINGH SON OF LATE NAWAL PRASAD SINGH, RESIDENT OF VILLAGE-BARHIYA, POLICE STATION-BARHIYA, DISTRICT LAKHISARAI …PETITIONER Versus 1. THE STATE OF BIHAR 2. ASHOK KUMAR ROY SON OF LATE LAXMAN ROY @ LAXMI ROY RESIDENT OF VILAGE-NAWADIH, POLICE STATION-DHANWAR, DISTRICT-GIRIDIH AT PRESENTLY RESIDING AT C/O KAILASH ROY(ADVOATE) NEAR- AGRAWAL LODGE, BAKASHIDIH ROAD(TOWN) POLICE STATION GIRIDIH, DISTRICT GIRIDIH …OPPOSITE PARTIES With Cr. Misc. No.6568 of 2010 ASHOK KUMAR ROY SON OF LATE LAKSHAMAN ROY, RESIDENT OF VILLAGE-BUXI DIH ROAD, P.S. GIRIDIH, DISTRICT GIRIDIH, JHARKHAND …PETITIONER Versus 1. STATE OF BIHAR 2. SHANKAR SINGH, SON OF LATE NAWAL SINGH, RESIDENT OF VILLAGE BARHIYA, MOHALLA RAMEEN, P.S. BARHIYA, DISTRICT LAKHISARAI …OPPOSITE PARTIES For the petitioner : Mr. Onkar Nath (Cr.Rev. No.1292/09) ---- For o.p. in Cr. Rev. No. 1292/09 and petitioner in Cr.Misc. No.6568/10 :Mr. U.P.Singh, Sr. Advocate :Mr.M. Prasad Singh No.2 & :Mr.O.P. Maharaj ----------- 04. 31.03.2011 Heard counsel fort the parties. Both the cases arise out of Barhiya P.S.Case No.231/07 instituted u/ss 420/406/34 IPC lodged by the petitioner of Cr. Revision No. 1292 of 2009. Informant- petitioner in Cr. Revision No. 1292 of 2009 made an application for release of the truck bearing registration and mark no. B.R.-2G 3785 which was considered and rejected by order dated 06.05.2009, passed by learned Chief Judicial Magistrate, Lakhisarai. 2 It appears that during investigation of the case the truck in question was seized from the possession of the petitioner of Cr. Misc. No. 6568/2010(Ashok Kumar Roy). Accordingly aforesaid Ashok Kr. Roy also filed an application seeking release of the said truck during the pendency of investigation/trial. Learned Judicial Magistrate by order dated 06.05.2009, rejected the said application. Aggrieved by the aforesaid order Cr.Rev. No. 11/163 of 2009 has been filed. It thus appears that both the applications raise an issue relating to the release of the truck in question and, therefore, have been heard together with the consent of the parties. An FIR was lodged by Shankar Singh(petitioner of Cr. Rev.No.1292/2009) alleging therein that the truck in question was purchased jointly with the petitioner of Cr. Misc.No. 6568/2010. The said truck was given in possession of one of the relatives of petitioner Ashok Kumar Roy who was required to furnish accounts relating to the earning and expenditure. It is alleged therein that for the purchase of the truck in question he had made an advance of Rs. 1,40,000/- . The accused had returned only Rs. 60,000/- and thereafter stopped furnishing accounts relating to the earnings from the truck in question and also brought the said truck in their exclusive possession. It is further alleged that in spite of notice they did not pay the amount and accordingly they were put on notice but no response was received and, as such, it was alleged that they had committed offence of cheating and breach of 3 trust. It is the stand of the informant that the registration in respect of the truck in question stood recorded in the joint names of the petitioner and accused of the case on 02.09.2003. On the strength of the aforesaid documents, a prayer for release was made in his favour which was considered and rejected Learned counsel appearing in support of Cr.Misc. No. 6568/2010, on the other hand, submits that the truck in question was purchased under higher purchase agreement on 15.03.1997. Referring to annexure-2, it is submitted that the name of the purchaser of the truck was recorded as Ashok Kumar Roy (petitioner). Referring to annexures-3 and 4, it is submitted that the ownership in respect of the truck in question remained with the petitioner and different communications in this regard were made by the financier as well as the Transport Department of the district. It is submitted that till today the road tax in respect of the truck in question is being paid by the petitioner. Learned counsel further stressed referring to the pleadings and documents filed in the application that admittedly the truck was seized from the possession of the petitioner. It is contended with reference to annexure-2 that a wrong averment was made in the FIR that the truck was purchased in the joint name of the petitioner of both the cases. It is reiterated that the truck was originally purchased in the year 1997 and as per the facts set out in the FIR in question certain advancements relating to the said truck was made by the informant of the case whereafter under a written agreement 4 (Annexure-5) the name of the informant(petitioner of Cr.Rev. No.1292 of 2009) was incorporated in the ownership documents relating to the said truck. Referring to and relying upon a judgment of the Hon‟ble Supreme Court rendered in General Insurance Council Vs. State of Andhra Pradesh (2010(2) BBCJ IV-373) as well as in cases of Sunderbhai Ambalal Desai vs. State of Gujarat and C.M. Mudaliar vs. State of Gujarat since reported in AIR 2003 SC 638, submits that continued seizure of a vehicle and lodgment thereof at police station has been deprecated by the Court. The Supreme Court in the case of Sunderbhai Ambalal Desai(supra) at paragraph 7 found as under: “7. In our view, the powers under Section 451, Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:- 1. Owner of the article would not suffer because of its remaining unused or by its misappropriation. 2. Court or the police would not be required to keep the article in safe custody. 3. If the proper panchnama before handing over possession of article is prepared, that can be used in evidence instated of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and 4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.” Learned counsel for the petitioner laid stress on the facts that going by the materials placed on record as also the contents 5 of the FIR it would appear that the informant of the case had made certain advancements to the original owner of the vehicle or his financier which, accordingly to him, was not paid back as per the agreement. It is contended that the truck, in the facts and circumstances of the case, cannot be said to be the subject matter of commission of offence. If a breach of trust has been committed in relation to non-payment of the advancements, the accused of the case shall be punished therefor. It is further submitted that even according to the materials placed on record in Cr. Misc. No. 6568 of 2010, it would appear that a sum of Rs.60,000/- was already paid to and received by the informant against the advancements made to the petitioner-accused for satisfying the regular instalments to the financier. It is submitted that although the petitioner-accused has made entire payment of advancements of the amount paid by the complainant but the same is still subject matter of investigation which is pending investigation. It is submitted that petitioner Ashok Kumar Roy is ready and willing to furnish sureties and execute appropriate bonds for production of the said truck as and when required by the court. Keeping in view the facts appearing from records and submissions advanced on behalf of the petitioner of Cr.Misc. No. 6568/2010, this court is inclined to direct the court below to release the vehicle bearing registration and mark No. B.R.-2G 3785 in favour of the petitioner on furnishing appropriate „Zimmanama‟ supported by reasonable sureties/bond(s). 6 Court below shall be at liberty to impose further reasonable conditions as deemed fit and proper while releasing the vehicle in terms of the present order. In the result, Cr. Rev. No.1292 of 2009 is dismissed and Cr. Misc. No. 6568 of 2010 is allowed with the aforesaid direction/observation. This Court, however, makes it abundantly clear that present order shall not, in any manner, prejudice the pending investigation of the case. Considering the urgency involved in the case and materials brought before the Court, a view has been taken directing release in favour of petitioner of Cr. Misc. No.6568/10 which shall not prejudice the interest of either party to the pending criminal case. hr ( Kishore K. Mandal )