1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1070 OF 2009 Dadabhau s/o Nana Nichit and another .. Petitioners. versus Shri Ashwinkumar Gholve and others. .. Respondents -------- Shri S.S.Jadhavar, Advocate, for the petitioners. Smt. M.D.Thube-Mhase, Advocate for Respondents 1 & 2. Coram : P. R. Borkar, J. Date : March 08, 2010 P.C. 01. Heard Shri S.S.Jadhavar Advocate for the Petitioners and Smt.M.D.Thube-Mhase Advocate for Respondent Nos.1 and 2. Rule. With consent of learned Advocates for the parties, rule made returnable forthwith and writ petition is taken up for final hearing at admission stage. 2 03. This writ petition is filed by original applicant, whose application for issuance of search warrant under Section 94 of the Code of Criminal Procedure, 1973, in Criminal M.A. No.9 of 2009 was initially allowed by the learned J.M.F.C. Parner vide order dated 7.4.2009, but was rejected by the learned Additional Sessions Judge, Ahmednagar in Criminal Revision No.73 of 2009 decided on 28.10.2009. 04. Brief facts giving rise to this writ petition are that, the petitioners herein are father and son. They entered into an agreement for transport of sugarcane with Parner Cooperative Sugar factory, Devibhoyare, Taluka Parner, District Ahmednagar of which Respondent Nos. 1 to 3 are the officers. The Petitioners had agreed to engage their tractor bearing No. MH-12-EB-2230 for transport of sugarcane. It is the case of the petitioners that they had taken advance of Rs.1.50 lakhs from the said sugar factory. However, they spent more than Rs.2.00 lakhs on labour contract. The said tractor was used only for 4-5 days and 3 thereafter the tractor remained idle at their house. On 15.1.2009, Respondent Nos.1 and 2 came to the house of Petitioners and took away the tractor and kept the same in the premises of the sugar factory. The keys of the tractor are with the petitioners. 05. Thereafter, present petitioners filed application under Section 94 of the Code of Criminal Procedure, 1973 in the court of learned J.M.F.C., Parner praying for issuance of search warrant in respect of the said tractor and to handover possession of the same to them. On 7.4.2009, after hearing both sides, the learned Magistrate allowed the said application which order was challenged in revision before the learned Additional Sessions Judge, Ahmednagar who, by order dated 28.10.2009 allowed the revision and dismissed the application of the petitioners. It is this dismissal which is challenged by this writ petition. 06. It is argued by Shri S.S. Jadhavar, 4 learned Advocate for the petitioners that theft has been committed in respect of the said tractor and, therefore, order of the learned Magistrate issuing search warrant issued under Section 94 of Cr.P.C. was proper and the same should not have been set aside by the learned Additional Sessions Judge in revision. However, one thing is not disputed at this stage, namely, the petitioners did not lodge either private complaint in the court, nor with the police regarding theft of the tractor. 07. Advocate Smt. Thube-Mhase for Respondent Nos. 1 and 2 submitted that if at all there was theft, petitioners would not have slept over the same for fifteen days and even while filing application under Section 94 of Cr.P.C., the petitioners did not file complaint for commission of offence of theft of the tractor. 08. The main question in this petition is whether, prima facie, there is material to indicate that theft was committed or whether the 5 tractor was taken away by Respondent Nos. 1 and 2 under the terms and conditions of the agreement between the parties, the copy of which is produced on record at Exhibit A. 09. At this stage, learned Advocate Shri S.S.Jadhavar submitted that just now he received instructions from his client who is present in the court that his client had filed complaint with police, regarding theft of the tractor, after making application under Section 94 of the Cr.P.C. but he does not remember exact date of the complaint. Be that as it may. 10. Learned counsel for both sides, drew my attention to the agreement (Exh.A with petition). From clauses 8 and 9 of the agreement, it appears that the petitioners have agreed to actual cutting of sugarcane; binding and loading the same in tractor and then supplying the same at the gate of the factory. Relying upon clauses 9 and 12 of the agreement, it is argued on behalf of Respondents No. 1 and 2 that if the petitioners have paid some 6 amount to labours, that is a matter between the petitioners and their labours and, therefore, petitioners cannot claim that amount from the factory and the fact remains that the factory had given advance of Rs.1.50 lakhs to the petitioners as stated by them (which amount, according to learned counsel for the Respondents is Rs.1.60 lakhs). As per clause 25 of the agreement, it is specifically agreed that the petitioners had taken an amount of Rs.1,61,345/= as advance which amount was to be deducted from the amounts payable by the factory to petitioners and if the said amount is not repaid, the petitioners would be liable to pay interest, or the factory would have right to recover such amount by selling the vehicle of the petitioners.It is this last clause, which is relied upon by the revisional court, by observing that the said clause gives authority to the factory to take possession of the said tractor and sell it off and that such taking of possession of the vehicle will not amount to commission of theft. The revisional court has referred to Section 410 of IPC which gives definition of 7 "stolen property." 11. The revisional court also relied upon the case of H.D.F.C.Bank Ltd. vs. State of Maharashtra 2009 CRI.L.J. 901. In that case, the court held that the order issuing search warrant for production of vehicle under Section 94 of the Cr.P.C. and consequential order of handing over possession of the hypothecated vehicle on the ground that financer has stolen vehicle was wrong. There was loan-cum-hypothecation agreement between the financer and the purchaser. The purchaser committed default of repayment of loan and, therefore, as per clause in the agreement, the financer took possession. It, therefore, cannot be said that financer had stolen the vehicle as there was no mens rea on part of the financer. 12. Reliance is also placed on the case of K.A. Mathai vs. Kora Bibbikutty (1996) 7 S.C.C. 212. In the said case, there was hire-purchase agreement; there was failure to pay installment by the purchaser. It was held that the financer had 8 right to resume possession even if the agreement did not contain a clause of resumption of possession and no offence of theft is made out by the act of the financer taking possession of the vehicle (bus in the case). 13. In the present case, there is transport agreement under which advance was paid by the factory to the petitioners and as a security for the advance, a clause is introduced in the said agreement whereby the factory was given the right to sell the vehicle of the petitioners in case of non payment of advance amount or failure to abide by the terms of the agreement. 14. Along with reply affidavit, Respondent Nos. 1 and 2 have produced vehicle register and it is submitted that on 15.1.2009, it is the petitioners who had taken the tractor to the factory; kept the same in the premises of the factory and said that they would take away the tractor after they repaid the amount taken as advance. However, that is an aspect in respect of 9 which evidence is to be produced in proper proceedings. 15. Therefore, having regard to the facts and circumstances of the case, in my opinion, the revisional court was right in allowing the revision application. This, therefore, is not a case requiring interference in the discretion used by the learned revisional Judge. 16. Hence, writ petition dismissed. Rule discharged. pnd/criapl256.98 (P.R.BORKAR, J.)