1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.418 OF 2009. Baburao S/o Yeshwantrao Naikwadi ... Petitioner. Versus The State of Maharashtra and another ... Respondent. ... Mr.M.B.Kolpe, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.P.P. for the State. ... WITH CRIMINAL WRIT PETITION NO.510 OF 2009. Dilip Pralhad Bhadange ... Petitioner. Versus The State of Maharashtra and another ... Respondents. ... Mr.B.R.Sable, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.P.P. for the State. ... 2 CORAM : V.R.KINGAONKAR,J. Date : 08.10.2009. PER COURT 1. Both these petitions are being decided together inasmuch as the question involved therein is identical. The petitioners have set up rival claims for custody of a jeep vehicle bearing registration No.MH-25/A-1181, which was seized in connection with Crime No.131/2008, registered at Osmanabad Police Station. 2. It would be convenient to refer the petitioners by their first names so as to avoid the nature of claims put forth by each of them. There is no dispute about the fact that originally the jeep vehicle in question was owned by one Nandkumar Waghmare. Petitioner Dilip purchased the said vehicle on 7.8.2003 from said Nandkumar with financial assistance of Vasantdada Urban Cooperative Bank Ltd., The fact that he is registered owner of the jeep vehicle is undisputed. He lodged a report to the Police Station alleging theft of the jeep vehicle. The Police seized the jeep vehicle from custody of 3 petitioner Baburao under a seizure panchanama. The Police registered Crime No.131/2008 regarding the alleged offence of theft of the vehicle. 3. Both the petitioners filed separate applications for interim custody of the jeep vehicle which were rejected by the learned Judicial Magistrate (F.C.). The Police submitted "C" summary report after certain investigation. It does imply that the Police investigation revealed that the complaint filed by petitioner Dilip was neither true nor false. Admittedly, petitioner Dilip instituted a private complaint case (RCC No.772/2007) against petitioner Baburao. The learned Judicial Magistrate held that neither of the petitioner was entitled to seek interim custody of the jeep vehicle. So, petitioner Dilip preferred Criminal Revision Application No.104/2008 against rejection of his application for the interim custody, whereas petitioner Baburao preferred Criminal Revision Application No.131/2008 against the rejection of his application for the interim custody of the jeep vehicle. By common judgment rendered on 4 20.3.2009, the learned Sessions Judge, Osmanabad was pleased to dismiss both the Revision Applications. 4. Feeling aggrieved, petitioner Baburao has preferred Criminal W.P.No.418/2009 and petitioner Dilip has preferred Cri.W.P.No. 510/2009. Each of them allege that the custody of the vehicle should have been given to him. The case of petitioner Dilip is that he is entitled to the interim custody of the jeep vehicle because he is the registered owner. He asserts that the jeep vehicle was not transferred by him in favour of anyone, least petitioner Baburao. As against this, petitioner Baburao claims that there was an agreement to purchase the jeep vehicle and petitioner Dilip signed the transfer application forms which were required to be submitted to the RTO for registration. He asserts that he had paid earnest amount of Rs. 20,000/- (Rupees twenty thousand) at the relevant time when the oral agreement of sale was settled. He further asserts that remaining amount of Rs. 40,000/- (Rupees forty thousand) was paid vide a 5 blank cheque issued by his brother, namely, Govind Naikwadi, which was credited to the loan account of petitioner Dilip. According to him, possession of the vehicle was delivered to him at the time of oral agreement of sale. He alleges that on 3.9.2007, he submitted the duly signed transfer forms at office of the RTO and thus the transaction of sale was completed in his favour. It is his case that by filing false report, petitioner Dilip has attempted to play a double game in order to dupe him. Consequently, he seeks custody of the vehicle. 5. Heard learned counsel for the petitioners and learned A.P.P. 6. So far as investigation of the crime is concerned, the Police machinery did not come across any tangible material to infer that offence of theft in respect of the jeep vehicle has been committed by petitioner Baburao. Learned A.P.P. Smt.Gondhalekar, states that the Police could not express any definite opinion about commission of the offence or falsehood of 6 the complaint and, therefore, "C" Summary Report was filed before the learned Judicial Magistrate (F.C.), Osmanabad. The private complaint case filed by petitioner Dilip is, however, pending. 7. There can not be duality of opinion that ordinarily a registered owner is entitled to custody of the vehicle. The fact that registration certificate stands in name of petitioner Dilip is indicative of his prima facie entitlement to claim the vehicle. However, where it is shown that the registered owner has lawfully parted with the possession of the vehicle on account of transfer thereof, he can not be allowed to play hot and cold. The learned Additional Sessions Judge observed that petitioner Dilip attempted to change his stance from time to time. He alleged that the jeep vehicle was stolen by petitioner Baburao on 1.6.2007. He further alleged that he filed a report with the Police on 15.9.2007. However, such averments were not supported by any document. It was on 7.12.2007 that he instituted a private complaint case vide RCC No.772/2007, 7 alleging that petitioner Baburao had committed theft of the jeep vehicle. Thus, there is inordinate delay in setting the Criminal law in motion by petitioner Dilip. Ordinarily, a lawful owner of such a vehicle would not hesitate in giving report of the theft immediately after the occurrence. Why should petitioner Dilip await for such a long duration between 1.6.2007 to 7.12.2007 for giving of the complaint and moving the Police machinery is rather intriguing. No proper explanation is put forth by him regarding such delay. His further conduct is worthy to be noted. He came out with a case that he lost the original registration papers of the vehicle during journey. In which journey and when had he lost such papers is rather ambiguous. It appears that he did not lodge any report about such loss of papers immediately after completion of the journey. Nextly, he subsequently signed the transfer forms in favour of one Shalivahan Naikwadi on 6.9.2007. Significantly, the so- called transferee by name Shalivahan Naikwadi is not in picture. He did not claim custody of the vehicle before the learned Magistrate nor he has 8 filed application for custody of the vehicle on the basis of his so-called transfer. What transpires from the record and conduct of petitioner Dilip is that he desired to give dodge to the claim of petitioner Baburao and, therefore, signed the transfer forms in name of Shalivahan Naikwadi. 8. In the background of above circumstances and the conduct exhibited by petitioner Dilip, it is necessary to take note of the fact that the cheque issued by brother of petitioner Baburao was credited in the loan account of petitioner Dilip. An employee of Vasantdada Co-operative Bank Ltd., namely, Sanjay confirmed the fact that the said cheque was credited in the loan account of petitioner Dilip. The cheque was apparently issued by said Gopal in name of Govind Naikwadi, who is brother of petitioner Baburao. The learned Sessions Judge, however, discarded the claim of petitioner Baburao for the reason that he had not adduced "clinching evidence" regarding his purchase transaction. 9 9. While considering the question of interim custody, it is not proper to expect "clinching evidence" regarding the ownership. The question of identity of person who is entitled to custody is required to be decided on the basis of preponderance of probabilities. There was no business for petitioner Baburao to arrange for payment of Rs.40,000/- (Rupees forty thousand) in the loan account of petitioner Dilip. It was never the grievance of petitioner Dilip that such amount was erroneously deposited in his account with some ulterior motive. The fact that transfer forms were signed by petitioner Dilip is also prima facie indicative of the agreement of sale transaction. A close scrutiny of the record purports to show that after a considerable period of such sale transaction, petitioner Dilip decided to move the Criminal Court through the private complaint case. It can not be ignored that the initial motive of petitioner Dilip could be to get the jeep vehicle attached and put petitioner Baburao under certain pressure to come to his terms. 10 10. Section 4 of the Sale of Goods Act, 1930, would make it amply clear that where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract itself becomes "sale". Thus, the transfer of possession of the moveable goods is indicative of completion of the sale transaction in the eye of law. Needless to say, when petitioner Dilip parted with possession of the jeep vehicle and transferred the same in favour of petitioner Baburao, for consideration, the sale transaction could be deemed as completed within the meaning of the Sale of Goods Act, 1930. In pursuance to such transaction, petitioner Baburao filed the transfer forms as required under Rule 55 of the Motor Vehicles Rules, 1989. Thus, his conduct does not show any inhibitions on his part. 11. Mr.Sable, learned advocate seeks to rely on certain observations in "Arun Kumar Vs. State of Rajasthan" 2004 Cri.L.J.3796. A Single Bench of Rajasthan High Court, held that vehicle could be released in favour of registered owner 11 by imposing certain conditions. What appears on going through the facts stated in the given case is that the said vehicle i.e. Maroti Car was found being used for transportation of culprits who had committed the offence of house burglary and theft of jewellery. There was no dispute regarding rival claims in regard to the ownership of the vehicle. Hence, the observations of the learned Single Judge in the given case are of no application to the fact situation of the present case. 12. Considering the foregoing reasons, I have no hesitation in holding that the learned Sessions Judge and learned Magistrate has committed error while rejecting claim of petitioner Baburao. His claim for interim custody of the jeep vehicle is more acceptable and proper. If at all the petitioner Dilip is desirous of obtaining custody of the vehicle, he is at liberty to take appropriate Civil action for the purpose of establishment of his claim. The application for interim custody is required to be decided on the basis of present right 12 available to a party. Thus, it would have been proper to relegate the petitioner Dilip to seek Civil remedy and to grant the application of petitioner Baburao for the interim custody of the jeep vehicle during pendency of the Criminal case instituted by petitioner Dilip vide RCC No. 772/2007. 13. In the result, Criminal Writ Petition No.510/2009 is dismissed. Criminal Writ Petition No.418/2009 filed by petitioner Baburao is, however, allowed. The jeep vehicle bearing registration No.MH-25-A/1181 shall be restored to his custody by the concerned Police Station house Officer without any delay on his execution of "Supurdnama" in sum of Rs.1,00,000/- (Rupees one lac) to keep the vehicle properly and not to transfer the same until disposal of the Criminal Case RCC No.772/2007. Rule made absolute accordingly. (V.R.KINGAONKAR,J.) asp/office/Crwp418.09