1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Kistoor Chand Versus State and Anr. S.B.CRIMINAL REVISION NO. 145/2003 against the Order dt. 13.1.2003 passed by Learned Additional Chief Judicial Magistrate, Bhim in FIR Case No.356/02 and FR No. 57/2002. Date of Order : 16/2/2005 PRESENT HON'BLE MR. H.R.PANWAR, J. Mr. Sandeep Mehta,for the petitioner Mr. Pradeep Shah for the respondent No.2 Mr. Narendra Moolchandani, P.P. BY THE COURT:- This criminal revision petition under Section 397/401 Cr.P.C. is directed against the order dated 13.1.2003 passed by Additional Chief Judicial Magistrate, Bhim, (for short 'the trial court' hereinafter) in FIR Case No. 356/02 and Final Report (Negative) 57/02 P.S. Bhim whereby the trial court dismissed the application filed by the petitioner under Section 451 and 457 Cr.P.C. seeking interim custody of the truck No. RJ-01-G/2744, however, allowed the application filed by respondent No.2 Pannalal under Sections 451, 457 Cr.P.C. and released 2 the custody of the truck Supardginama and Jamanatnama in favour of respondent No.2 Pannalal on certain conditions. Aggrieved of the order impugned, the petitioner has filed the instant revision petition. The facts and circumstances giving rise to the present revision petition are that one Paras, said to be driver of respondent No.2 lodged a first information report No. 356/02 with P.S. Bhim, inter alia, alleging therein that the truck referred above is owned by respondent No.2 and he was engaged as a driver for transporting 75 bags of Sugar to Kareda. It was alleged that sugar belonging to the petitioner was to be transported in the said truck and the truck was hired for Rs. 925/-. The complainant parked the truck outside the hotel of the petitioner for loading sugar bags and went for meal. When he came back he did not find the truck there and saw that the truck was standing behind the hotel without wheels. On this information, crime report for the offence under Section 406 and 379 IPC was registered and the investigation ensued. After investigation, police filed negative final report. A notice of negative final report was served on the respondent. A protest petition was filed by complainant Paras. The complainant himself was examined as a witness and produced respondent No.2 and Pushkar Singh as 3 witnesses. The trial court on perusal of the material placed before it, came to the conclusion that the reasons assigned by the police for submitting negative final report are well-founded and prima-facie no offence against the petitioner appears to have been made out. The trial court satisfied with the conclusion arrived at by the police in filing negative final report and accordingly negative final report was accepted and the protest petition came to be dismissed by order dated 16.8.04. The order dated 16.8.04 dismissing the protest petition and accepting the negative final report has not been challenged and it has attained finality. I have heard learned counsel for the petitioner and the counsel appearing for respondent No.2 Pannalal. I have also gone through the order impugned as well as record of the trial court. Respondent No.2 Pannalal sold the truck in question for a sum of Rs. 1,80,000/- in favour of petitioner Kistoor Chand on 18.7.02 by agreement to sale. The agreement to sale is on record and has not been disputed by the counsel appearing for the respondent No.2. In the agreement, it has been 4 mentioned that the said truck was sold by respondent No.2 Pannalal to petitioner Kistoor Chand on 18.7.02 for a sum of Rs.1,80,000/- and out of Rs. 1,80,000/- a sum of Rs. 1,30,000/- had been received by the vendor respondent Pannalal and for remaining amount of Rs. 50,000/-, it was agreed that the respondent will have right to receive the said amount within five months. It has also been stated by the respondent in the agreement that after this agreement, the respondent will have no right or claim towards the said truck. In the agreement it has further been stated that the possession of the vehicle has been handed over to the petitioner voluntarily and in sound disposing of mind without there being any pressure. The Form No.29 notice of ownership of motor vehicle and the Form No.30 the report of transfer of the motor vehicle had been signed by respondent No.2 Pannalal and handed over to the petitioner. So far as the remaining amount of Rs. 50,000/- is concerned, respondent No.2 reserved his right in the agreement to realize the same from the petitioner. In the agreement, there was no such condition that if the petitioner fails to make payment of remaining amount of Rs. 50,000/-, the respondent will have right to repossess the vehicle. From the investigation diary, it nowhere appears that after 18.7.02, the said truck had ever come in possession of the respondent. It is not the respondent's case that 5 subsequently the truck was handed over to him by the petitioner. There being no evidence as to how complainant Paras, who alleged to have claimed himself to be the driver of the respondent, came in possession of the truck in question. During investigation, the respondent shifted his stand from that of the seller in the agreement to sale dated 18.7.2002 executed by him. In the statement made by respondent No.2 before the trial court, he admitted his signature on the agreement to sale but stated that one Satyavan took a loan and in that process the document was signed by him alleged to have been agreement to sale in favour of the petitioner. During investigation, he made statement before the police wherein no such stand was taken by him. From the perusal of the investigation diary, it appears that the balance amount of Rs. 50,000/- remained outstanding as there is no evidence even by the petitioner that he had paid the balance amount of Rs. 50,000/-. Finding the circumstance that the balance amount of sale price is not coming forth, the case appears to have been instituted through complainant Paras who claims himself to be the employee of the respondent No.2. The trial court, while allowing the application filed by the respondent No.2 for interim custody of the said truck, was persuaded more with certain photostat copies of the bills alleged to have been for the repairs of the 6 vehicle though in none of the bills, the name of the respondent No.2 is mentioned. In some of the bills only the vehicle number is mentioned but it nowhere has been shown that it was the respondent No.2 who got the vehicle repaired. More so, the respondent No.2 has not placed on record the original bills alleged to have been relating to the repairs of the truck as also the purchase of fuel. Only photostat copies have been placed on record which have not been even attested. Therefore, the genuineness of these documents is yet to be established. Learned counsel for the petitioner has relied on a decision of this Court in Dharma Ram Vs. Lichhuram & State of Raj. Reported in 1996 Cr. L.R. (Raj.) 273, wherein this Court observed as under :- “I have seen the documents available on the file. It is not in dispute that Lichhu Ram sold the above vehicle to petitioners by executing an agreement on 17.7.95 for a sum of Rs. 1,71,000/- and also obtained part payment of Rs. 40,000/-. The possession was also delivered to the petitioners. Notwithstanding the fact that Lichhu Ram is registered owner in respect of the vehicle in question and paying loan to the Bank, after the agreement the petitioners can lay their claim for interim custody of the above vehicle and, if the grievance of the non- petitioner No.1 is that petitioners are not complying with the conditions of the agreement he can persue a civil remedy.” The facts of the instant case are on better 7 footing than those in the case of Lichhu Ram (Supra) wherein this Court directed that the delivery or possession of the vehicle should be given in favour of the person in whose favour the agreement to sale stands. In that case, the vehicle was purchased through bank loan and the purchaser sold the vehicle to the petitioner Dharmaram therein by agreement to sale. So far as the bank instalments are concerned, the same were paid by the petitioner therein though in the name of the registered owner. The registration continued to be in the name of seller. Obviously, the vehicle was purchased through bank loan and unless the entire loan amount is cleared it could not have been transferred. Whereas in the instant case, out of sale price of Rs. 1,80,000/-, admittedly a sum of Rs. 1,30,000/- had been paid by the petitioner to the respondent No.2 as sale price and only an amount of Rs. 50,000/- remained outstanding which was to be paid within five months and even in the agreement to sale it has been stated that the respondent No.2 will have a right to realize this amount. There was no clause in the agreement to the effect that on failure to pay the balance amount of sale proceeds, the respondent would be entitled to repossess the vehicle. There is no evidence that after 18.7.02, the day when the possession of the vehicle was handed over to the petitioner by the respondent, the said vehicle ever 8 came in possession of the respondent No.2. In the circumstances therefore, the order impugned delivering the custody of the vehicle in favour of the respondent No.2 is erroneous and cannot be sustained. Consequently, the revision petition is allowed. The order impugned dated 13.1.2003 passed by Additional Chief Judicial Magistrate, Bhim is hereby set aside. The application filed by the petitioner under Sections 451 & 457 Cr.P.C. is allowed and it is directed that the custody of the Truck No. RJ-01-G- 2744 be delivered to the petitioner. Since by order of the trial court the delivery of possession of the truck in question has been given to the respondent No.2, the respondent No.2 shall hand over the possession of the truck in question to the petitioner within a period of one month from today. However, the respondent No.2 will be free to realize the balance amount in accordance with the terms of the agreement, if permissible under the provisions of law. (H.R.PANWAR),J. rp