1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT MOHAMMED HUSSAIN VS. STATE OF RAJ. AND ANR. SB Criminal Revision Pet. No.733 of 1999 under Section 397 read with Section 401 Cr.P.C. against the order dated August 25, 1989 passed by Judge (Communal Riot Cases) Special Court and Addl. Sessions Judge Tonk in Criminal Appeal No. 12/97 (37 of 1993) whereby he allowed the appeal filed against the judgment dated May 3, 1993 of Judicial Magistrate No.1 Uniara in Criminal Case No. 148 of 1985 under section 420 and 406 IPC, whereby the custody of Truck RRL 5141 was ordered to be given to the accused respondent Mohammed Hussain. Date of Order : April 9, 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr.S.S.Hassan, for the petitioner. Mr.V.S.Punia, for the respondent. Mr.Pradeep Srimal, Public Prosecutor BY THE COURT : This revision petition has been filed by the petitioner Mohammed Hussain, against the order dated August 25, 1989 passed by Judge (Communal Riot Cases) Special Court and Addl. Sessions Judge Tonk in Criminal Appeal No. 12/97 (37 of 1993) whereby he allowed the appeal filed against the judgment dated May 2 3, 1993 of Judicial Magistrate No.1 Uniara in Criminal Case No. 148 of 1985 under section 420 and 406 IPC, whereby he acquitted the accused respondent and granted the custody of Truck RRL 5141 to him. 2. Brief facts of the case are that complainant respondent No.2 Jaskaran filed a complaint in the Court of Judicial Magistrate Uniara on June 1, 1984 stating therein that on July 19, 1983 the accused petitioner came to him at Aligarh and stated that he is owner of Truck No. RRL 5141 Model 1970 and as he is in financial crisis, he wants to sell out his said truck and accordingly the complainant agreed to purchase the said truck for Rs. 62,251/- and he paid Rs. 10,000/- as advance to the accused. It was stated that truck in question is lying at Jaipur. The accused has not handed over the said truck and subsequently the complainant respondent No.2 took possession of the truck at Jaipur and 3 plied the truck up to May 26, 1984. Subsequently the petitioner came to Aligarh and took away the truck and has not handed over the possession of the truck and ultimately cheated the complainant. The said complaint was sent under section 156 (3) Cr.P.C. to the Police Station, Aligarh. Thereafter the police registered a case No. 26 of 1984 under sections 406 and 420 IPC. and investigation commenced. During the course of investigation the truck was recovered from the possession of the accused petitioner at Sawai Madhopur and subsequently the police filed challan against the accused petitioner under section 420 and 406 IPC. The Judicial Magistrate framed charges against the accused petitioner under sections 420 and 406 IPC. The accused petitioner denied the charges and claimed trial. The prosecution examined 18 witnesses. Accused petitioner was also examined under section 313 Cr.P.C. After concluding the 4 trial and after hearing both the parties, the Judicial Magistrate Uniara acquitted the accused petitioner vide judgment dated May 3, 1993 and further ordered to hand over the possession of the disputed truck to the petitioner as the truck in question was recovered from the accused petitioner. The State has not filed any appeal against the order of acquittal but subsequently the complainant filed appeal before the Sessions Judge Tonk against the judgment giving custody of the said truck to the accused petitioner. The Sessions Judge after hearing both the parties, set aside the order of the Judicial Magistrate dated May 3, 1993 and ordered to give custody of the disputed truck to the complainant respondent No.2 vide judgment dated August 25, 1999. Against this order of the Sessions Judge, the present revision petition has been filed. 3. Mr. S.S.Hasan, learned counsel for 5 the petitioner submitted that the truck was recovered from possession of the accused petitioner on June 18, 1984 at Sawai Madhopur. The accused petitioner was having custody of the truck as an owner of the said truck and the petitioner was acquitted from the charge of Sections 406 and 420 IPC, as such the Judicial Magistrate had rightly passed the order as per the provisions of law to hand over the custody of the said to the petitioner,but the Special Judge acted beyond the jurisdiction while passing the impugned order dated August 25, 1999 whereby given the custody of the disputed truck to the complainant respondent. Thus the judgment of the Special Judge is liable to be set aside and the truck in question should be delivered to him. The learned counsel placed reliance on Lumba Ram vs. State and another (1998 Cr.L.R. (Raj.) 589) and Babulal vs. State of Rajasthan (1999 Cr.L.R. (Raj.) 368). 6 4. Mr. V.S. Poonia, learned counsel for the respondent and Mr. Pradeep Srimal, Public Prosecutor opposed the arguments of the petitioner. It was stated that the petitioner has not paid the full amount of the truck and thus the registered owner of the truck was complainant and the delivery was rightly given to the registered owner. 5. I have gone through the judgment of the appellate court and in my opinion even if the delivery of the truck was given to the registered owner, the appellate court has not committed any illegality in giving the delivery to him. No doubt the truck was received from the accused petitioner but the registered owner of the truck was the complainant and the petitioner has not paid the full and final payment of the truck as was admitted by him. Thus the judgment passed by the appellate court cannot be said to be perverse or there is no illegality or infirmity in giving 7 delivery to the registered owner of the truck. The order is just and proper. 6. In Lumba Ram vs. State and anr. (supra), the delivery of property was she buffalo and the police seized she buffalow from the possession of respondent Meera Ram and submitted FR. Magistrate accepted FR and ordered to auction the buffalow, leaving parties to get their rights decidedby civil courts. Revisional court directed to hand over the buffalo to respodnent Meera Ram. The court held that when the accused is acquitted or discharged, the property should be returned to the person from whose possession it was seized. 7. In Babulal vs. State of Rajasthan (supra), the trial Magistrate refused to deliver the property on the ground that it might be required in trial of absconded accused. Property seized from possession of the accused who acquitted from all the charges. The State not filed the appeal against acquittal. In this 8 case itwas not proved that the silver and gold ingots were prepared from solen property, hence the accused pleaded it his propertyand produced the defence evidence. This Court held that the trial Magistrate committed error in refusing to deliver the property. 8. In the instant matter, admittedly the petitioner is registered owner of the vehicle in dispute and the learned ADJ rightly ordered the delivery of the vehicle to him. The order cannot be termed to be illegal. 9. For these reasons the revision petition is dismissed. 10. As the main petition has been dismissed the stay application also stands dismissed. (Mahesh Chandra Sharma) J. OPPareek/