1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 983 OF 2008 Mr. Surendra S/o Bholanath Dubey .... Petitioner. V/s State of Maharasthra & anr. .... Respondents. Mr. Ajay B. Rai i/b Akhilesh Singh for the Petitioner. Mr. Rajendra Rathod i/b Mr. O.A. Siddiqui for respondent No. 2. Mrs. P.P. Bhosale, APP for the State. CORAM: V. M. KANADE, J. DATE : 7TH APRIL 2010 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of Respondent No.2. 2. Petitioner is challenging the order passed by the Metropolitan Magistrate, 22nd Court, Andheri, Mumbai, who, by the said order, was pleased to reject the application filed by the Petitioner for return of his auto-rickshaw which was seized by Police in C.R. No.88 of 2008 which was registered at Sakinaka Police Station. According to the Petitioner, he is the owner of the auto-rickshaw and his auto-rickshaw was stolen and, therefore, he filed his FIR on 23/01/2008 and the aforesaid offence was registered at Sakinaka Police Station. 2 During investigation of the said case, auto-rickshaw was found in possession of the accused Virendra Singh and, therefore, it was seized. The Investigating Officer filed his reply to the application and, according to him, the applicant had taken loan of Rs 10,000/- from the accused in the year 1996. However, the said loan was not repaid and the accused had taken signature of the Petitioner on the document of sale of the said vehicle. The accused also filed his reply to the said application and submitted that the applicant had sold the vehicle to him by the agreement by taking cash amount of Rs 80,000/- and the rights of the complainant were transferred to the accused. The accused filed copy of the affidavit, agreement and Power of Attorney executed by the applicant. The learned Metropolitan Magistrate came to the conclusion that in view of the rival submissions which were made by the applicant and the accused it was not possible to give possession of the vehicle without recording evidence. 3. The learned Counsel appearing on behalf of the Petitioner has filed a compilation of documents in support of his submission that the Petitioner is the owner of the said vehicle and that the permit had been issued by the RTO. He has also submitted that he has been paying taxes regularly and PUC Certificate has been issued from time to time. He has also relied upon other documents. He has also relied upon the judgment of the Apex Court in Rajendra Prasad v. State of Bihar and another1. 1 (2001) 10 SCC 88 3 4. On the other hand, the learned Counsel appearing on behalf of Respondent No.2 relied upon the judgment of the learned Single Judge of this Court in Shri Julio alias Francis K. Rugde v. State & Anr.1 5. After having heard the learned Counsel appearing on behalf of the Petitioner and the the learned Counsel appearing on behalf of Respondent No.2, I am of the view that the question regarding correctness of the rival versions regarding transaction relating to the vehicle cannot be decided at this stage though it is alleged that the applicant is the owner of the vehicle. The Respondent – accused also has contended that the vehicle was sold to him after the applicant was unable to pay the said amount. The learned Magistrate, therefore, in my view, has correctly held that unless the evidence is led on this aspect, it would not be possible to decide the said contested issue on the application being filed under section 457 of the Criminal Procedure Code. 6. So far as the judgment on which reliance is placed by the learned Counsel for the Petitioner is concerned, the said judgment was passed on the facts situation as it existed in the said case. On the other hand, the judgment on which reliance is placed by the learned Counsel for Respondent No. 2 also has taken into consideration the previous judgment of the Supreme Court. In the said case the learned Single Judge 1 2007 (3) AIR Bom R 238 4 has observed that the accused being in lawful possession of the car at the time of seizure, has better right to possess it till rights of vehicle are decided in spite of the fact that petitioner’s name was recorded in R.C. Book. The ratio of the said judgment, in my view, squarely applies to the facts of the present case. It is no doubt true that name of the Petitioner appears in the RTO records. However, the vehicle was in possession of the Respondent No.2. He has also produced number of documents, alleging that the car was sold by the applicant/petitioner to him. In the present case the complaint was filed by the applicant/Petitioner that the vehicle was stolen. Later on, it was found to be in possession of the Respondent No.2 who is now claiming that the vehicle was sold to him. 7. There is no merit in the submissions made by the learned Counsel appearing on behalf of the Petitioner. Petition is accordingly dismissed. (V.M. KANADE, J.)