1 APPLN 5757.10.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL APPLICATION NO. 5757 OF 2010 Mr. Faiz Mercantile Co. Op. Bank Ltd. ... Applicants. V/s. The State of Maharashtra & Ors. ... Respondents. Mr. M.M. Sathaye for the Applicant. Mr. A.S. Shitole, APP for the State. Mr. R.N. Gite for Respondent 2. CORAM : K.U. CHANDIWAL, J. DATED : 06th SEPTEMBER 2011. P.C. :- Heard finally. 2. The order of learned 4th Additional Sessions Judge, Nasik dated 23.11.2010 directing handing over custody of the vehicle MH-15-AS-811 seized in C.R.No.194 of 2005 to Respondent Smt. Sunita is question by the Bank. 3. The Applicant – Bank had lent financial facilities to one Rizwan Kazi to purchase a vehicle, which accordingly was purchased and charge in the RTO record of the Applicant – Bank was recorded. The original papers including R.C. Book of the vehicle and Forms remained with the Applicant – Bank. Its entry as a financer with the charge was also recorded with the R.T.O. The borrower allegedly played a mischief. Procured a duplicate or fabricated R.C. Book. Naturally, it did not reflect 2 APPLN 5757.10.sxw entry of a charge of the Applicant – Bank. Based on the same and representation by said Rizwan, Respondent Smt. Sunita has purchased the vehicle from said Rizwan. She too claims availed loan. 5. The learned Counsel for the Respondent No.2 submits that she is a bonafide purchaser and the vehicle was with her at the time of seizure, she is entitled to restore its position. The learned Counsel also submits, since the Bank has initiated proceedings under Maharashtra Co-Op. Societies Act and there is a recovery certificate, the procedure contemplated for attachment should be followed and then the vehicle if desired can be taken from Respondent Smt. Sunita, for that purpose, the order under challenge need not be disturbed. 6. The basic charge in respect of the vehicle of the Applicant – Bank flows and operates as engraft in the Hire Purchase Act, 1972. The illegalities committed by the borrower Rizwan, making Smt. Sunita to part some amount, such transaction will be naturally between Smt. Sunita and Rizwan. It will not impair the Bank’s existing rights as a financer including its lien. 7. The contention that Smt. Sunita is a bonafide purchaser of the vehicle, goes contrary to the record. Even if Rizwan produced duplicate RTO papers, it was expected from Smt. Sunita as a bonafide purchaser to inquire with the R.T.O. as to original record or atleast charge of the Bank. R.T.O. 3 APPLN 5757.10.sxw particulars as is available with the R.T.O. Authority would facilitate the inquiry. 8. It was pointed to the learned District Judge as is referred in paragraph 6 of the order, that the Bank had preferred an Appeal No.2/TC/2006 before the Transport Commissioner, Maharashtra State, Mumbai and the Competent Authority rectified the unlawful transfer and directed to continue the earlier position to the R.T.O. Nasik. The vehicle was seized by the Economic Wing of Police, Nasik Division on 3rd October 2008. He should have ventured to the legal rights of Bank. 9. The Applicant – Bank, under Hire Purchase Agreement is owner of vehicle, while the borrower is branded as a hirer and consequently, borrower has restricted rights to deal with the hired property, the Applicant – Bank is showered with a recovery certificate in terms of Section 101 of Maharashtra Co-operative Societies Act coupled with an attachment warrant. Therefore, the contention that the Bank can follow other legal procedure is again fallacious. 10. The reliance placed to the reported Judgment in the case of Jagannath Bapu V/s. State of Maharashtra reported in 2000(2) Mh.L.J. 605, by the learned Judge in paragraph 12 has no application to facts, as in the said case the owner transferred the vehicle and himself moved report of theft. Here, the borrower has deceived Smt. Sunita by preparing forged documents and also financer Bank – Applicant by surreptitiously transferring the vehicle and keeping the 4 APPLN 5757.10.sxw liability intact. The observations of the learned Judge in paragraph 14 also will not be applicable to the facts of the present case. 11. The learned Counsel also submits, even if Smt. Sunita had checked the records of RTO, Nasik, she could not be successful as there was no record concerning the vehicle with RTO. This is difficult to accept for want of any attempt from Smt. Sunita. 12. The vehicle even if was seized from Smt. Sunita by the Crime Branch of Police of Bhadrakali Police Station, by itself would not create rights in favour of Smt. Sunita to continue either temporary or by a permanent occupation. The Applicant – Bank has primary lien over the vehicle, default in remittance has facilitated the bank, as a financer under the statutory arrangement to take legal recourse, as it is benedicted with a recovery certificate. These legal aspects were not considered by the learned Judge while directing handing over the vehicle to Smt. Sunita. 13. In the result, the application allowed. The order dated 23rd November 2010 of the Additional Sessions Judge, Nasik is set aside. The questioned vehicle to be handed over to the Applicant – Bank within 30 days. (K.U. CHANDIWAL,J.) 5 APPLN 5757.10.sxw