Case Law Details
Himatbhai Laxmanbhai Ognaja Vs State of Gujarat (Gujarat High Court)
Conclusion: Since assessee was not having any evidence even to prove the said fact that he had made the payment towards installment of loan for the muddamal vehicle, the Magistrate had to verify the aspect of ownership of the muddamal vehicle after conducting inquiry and should handover the custody of the muddamal vehicle at the end of the trial if assessee was able to prove his better title and possession over respondent without being influenced by any of the observations made by Revisional Court in Criminal Revision Application.
Held: Assessee had preferred this petition under Articles 226 and 227 of the Constitution of India and under Sections 451 read with Section 482 of the Code of Criminal Procedure, 1973 with a prayer to quash and set aside the judgment and order dated 29.05.2023 passed by the Additional Sessions Judge, Rajkot in Criminal Revision Application No.61 of 2023 as also the common order passed by Judicial Magistrate First Class, Vinchhiya in Muddamal Application 22 and Muddamal Application No.6 of 2023 and had requested to direct the Respondents to hand over the custody of muddamal vehicle being goods carrier vehicle viz. Mahindra & Mahindra Bolero Pick-up bearing registration No.GJ-33-T-0533 to the present assessee. Assessee, by way of sale agreement, had purchased muddamal vehicle being goods carrier vehicle viz. Mahindra & Mahindra Bolero Pickup bearing registration No.GJ-33-T-0533 from respondent No.3. He had lodged an FIR being CR with Vinchhiya Police Station, Rajkot (Rural) against one Pravinbhai for the offences punishable under Sections 406 and 420 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”), wherein it was alleged that the accused had taken the muddamal vehicle for trial under the pretext that he intended to purchase the muddamal vehicle from the present assessee and thereafter the accused fled away with the muddamal vehicle and hence, FIR for the offences punishable under Sections 406 and 420 of the IPC came to be filed. The muddamal vehicle was hypothecated with AU Small Finance Bank Limited and assessee had paid Rs.6 lakh towards loan by way of installments and thereafter assessee had received the possession of muddamal vehicle. Thus, on the basis of such oral agreement and alleged notarized contract/agreement, assessee had received the possession of muddamal vehicle and since then assessee became the owner of the muddamal vehicle and was having the possession of the same. It was held that assessee was not a registered owner of the vehicle and had failed to prove his ownership as regards to he had purchased the vehicle and paid loan installments also to Finance Company and except bare words, assessee was not having any evidence even to prove the said fact that he had made the payment towards installment of loan for the muddamal vehicle. Hence, this Court was not inclined to grant any relief in favor of assessee and did not find any reason to interfere in the findings recording by the Sessions Judge. Hence, detail inquiry qua said fact was required to be conducted in this regard. However, it was clarified that the Magistrate had to verify the aspect of ownership of the muddamal vehicle after conducting inquiry and should handover the custody of the muddamal vehicle at the end of the trial if assessee was able to prove his better title and possession over respondent No.3. Trial Court was directed to decide the question of ownership of muddamal vehicle without being influenced by any of the observations made by Revisional Court in Criminal Revision Application No.61/2023 while deciding the ownership and possession.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
[1.0] RULE. Learned APP waives notice of rule for and on behalf of the respondents.
[2.0] The petitioner has preferred this petition under Articles 226 and 227 of the Constitution of India and under Sections 451 read with Section 482 of the Code of Criminal Procedure, 1973 with a prayer to quash and set aside the judgment and order dated 29.05.2023 passed by the learned 10th Additional Sessions Judge, Rajkot in Criminal Revision Application No.61 of 2023 as also the common order dated 04.02.2023 passed by the learned Judicial Magistrate First Class, Vinchhiya in Muddamal Application No.56 of 2022 and Muddamal Application No.6 of 2023 and has requested to direct the respondent Nos.2 and 3 to hand over the custody of muddamal vehicle being goods carrier vehicle viz. Mahindra & Mahindra Bolero Pick-up bearing registration No.GJ-33-T-0533 to the present petitioner.
[3.0] It is the case of the petitioner that the present petitioner, by way of sale agreement, had purchased muddamal vehicle being goods carrier vehicle viz. Mahindra & Mahindra Bolero Pickup bearing registration No.GJ-33-T-0533 (hereinafter referred to as “muddamal vehicle”) from respondent No.3. The present petitioner has lodged an FIR being CR No.11213068220283 of 2022 dated 18.10.2022 with Vinchhiya Police Station, Rajkot (Rural) against one Pravinbhai Shamlabhai Sambad for the offences punishable under Sections 406 and 420 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”), wherein it was alleged that the accused had taken the muddamal vehicle from the present petitioner for trial under the pretext that he intended to purchase the muddamal vehicle from the present petitioner and thereafter the accused fled away with the muddamal vehicle and hence, FIR for the offences punishable under Sections 406 and 420 of the IPC came to be filed.
[3.1] It is further the case of the petitioner that the muddamal vehicle was hypothecated with AU Small Finance Bank Limited i.e. respondent No.4 herein and the petitioner has paid Rs.6 lakh towards loan by way of installments and thereafter the petitioner had received the possession of muddamal vehicle. It is further the case of the petitioner that one contract came to be executed in favor of respondent No.3 – Labhubhai Shamlabhai Aal as earlier the amount of loan was not regularly paid pursuant to which the muddamal vehicle came to be seized by respondent No.4 herein in the year 2019 and hence, he has once again deposited Rs.90,000/- and has the receipt of payment of Rs.90,000/-. Till date, he has paid Rs.5,24,420/-. Thus, on the basis of such oral agreement and alleged notarized contract/agreement dated 01.09.2020 , present petitioner received the possession of muddamal vehicle and since then the petitioner became the owner of the muddamal vehicle and is having the possession of the same.
[3.2] It is further the case that as during the investigation, muddamal vehicle came to be seized by the police authority, for getting the interim custody of the muddamal vehicle, Muddamal Application No.56 of 2022 under Section 451 of the CrPC came to be filed by the present petitioner before the learned Judicial Magistrate First Class, Vinchhiya. That, the respondent No.3 also filed Muddamal Application No.6 of 2023 seeking custody of muddamal vehicle and the learned Magistrate vide common order dated 04.02.2023, was pleased to reject muddamal application of the present petitioner and allowed the muddamal application filed by respondent No.3 and was pleased to hand over the interim custody of the muddamal vehicle during the pendency of the case to respondent No.3.
Being aggrieved and dissatisfied with the said order dated 04.02.2023, present petitioner preferred Criminal Revision Application No.61 of 2023 which also came to be rejected.
Hence, present petition.
[4.0] Learned advocate Mr. Bhaumik Dholariya appearing for the petitioner has submitted that the present petitioner has purchased the muddamal vehicle and the petitioner has paid the amount of loan of bank and was in possession of the muddamal vehicle by way of contract which was executed before a Notary and possession of the vehicle was also handed over to the present petitioner and hence, now also the petitioner is entitled to get the possession of muddamal vehicle. It is further submitted that though the petitioner has paid substantial amount towards the vehicle, the petitioner has been duped and merely because respondent No.3 is a registered owner of the vehicle and vehicle is not transferred in the name of present petitioner in the RTO, respondent No.3 has taken undue advantage and is now claiming the possession of the vehicle and thus, the order passed by the learned Sessions Judge is required to be interfered with. Further, even respondent No.4 – AU Small Finance Bank Limited has not disputed the fact that the amount of loan towards the said vehicle is paid by way of installments by the present petitioner. Further, it is stated that this Court has not to only consider that the vehicle is not registered with the RTO in the name of present petitioner but has to consider that the actual possession of the vehicle was with the present petitioner and the accused from whom the vehicle is recovered has also stated the fact that the petitioner had given him the vehicle.
[4.1] Further, the Notary before whom the contract was executed has also substantiated the fact of execution of contract. Further, as per the provisions of the Sale of Goods Act, the vehicle is required to be handed over to the purchaser as he is the absolute owner of the vehicle and the Court should ignore the registration certificate and alleged seller being having no any right, title or interest after pocketing the money and he has relied on the decision of the Division Bench of the Bombay High Court in the case of Kishan Pandurang Kagde vs. Baldev Singh Gian Singh and Another and stated that object of section 31 of the Motor Vehicles Act is only for collection of tax. Further, various documents show that the delivery and the possession of the vehicle was with the present petitioner and hence, prima facie, ownership and the possession of the present petitioner is proved and hence, the petitioner is entitled to interim custody of the vehicle pending the conclusion of the trial. Merely because ownership of the motor vehicle is not transferred is not a ground to refuse the legitimate claim of the present petitioner. In view of the above, he has requested to allow the present petition.
[5.0] Learned APP appearing for the respondent – State of Gujarat has vehemently opposed the present petition and has stated that this is not a case wherein present petitioner is the registered owner of the vehicle in question and further that this is not a case wherein re-appreciation of facts or mini trial is required to be conducted by this Court by invoking inherent jurisdiction under Section 482 of the CrPC. Further, she has relied on the decision of Kerala High Court in the case of E. Aliyar Kunju and Others vs. Subair Khan & Others and argued that under Section 31 of the Old Act, the transfer of ownership of a motor vehicle, title passes only after the registration is made and only the registered owner is entitled for interim custody and while handing over the interim custody, the Court has to consider the ownership. Further, in absence of any proof of ownership and when there is no proof of any payment being made towards the installment and merely because contract is executed is not a ground and going through the papers also, it reveals that one Vanrajbhai Khatana has stated before the police that he has received the vehicle from respondent No.3 and hence, considering the rival claim, detailed inquiry is required and Court may consider the case and after conclusion of the trial , Court may pass appropriate order after inquiry about the ownership to handover the possession of the vehicle. In view of the above, she has requested to dismiss the present petition.
[6.0] Learned advocate for the respondent No.4 has stated that the muddamal vehicle was hypothecated with respondent No.4 – Finance Company. Further, he fairly concedes that he is unable to say as to who has paid the said loan amount though the loan amount is paid. Further, it is submitted that respondent No.3 took the finance from respondent No.4 and respondent No.3 is the account holder and documents of finance came to be executed in favor of respondent No.4 by respondent No.3. Thus, he is unable to clarify anything as to who had paid the loan installments but he has stated that he has no objection if any appropriate order is passed by this Court.
[7.0] This Court has given thoughtful consideration to the arguments canvassed by learned advocate for respective parties.
It is undisputed and admitted fact that till date the vehicle is registered in the name of respondent No.3, who had obtained loan from respondent No.4 for purchase of the muddamal vehicle and the documents which were produced for the purpose of availing loan are on the record of the case.
[7.1] So far as powers under Section 451 of the CrPC are concerned, the person to whom custody is given would naturally be concerned with the finding out as to who is entitled for the possession of the muddamal vehicle. In order to decide the question of ownership, obviously the registration certificate and other materials are required to be considered. Normally, the person whose name is registered in the registration certificate under section 2(30) of the Motor Vehicles Act can be said to be a person to whom custody can be given. It is true that it is not the Rule if sufficient material is brought on record to prove the possession and ownership of the vehicle. Herein, the possession of the vehicle itself is a disputed question of fact and now, it is an undisputed fact that the ownership in the registration certificate concerning the muddamal vehicle is in favor of respondent No.3. Hence, considering the material available on record, it is very difficult to weigh the evidence or to hold mini trial to decide the possession and ownership of the vehicle as the aforesaid aspect is itself a question of evidence. The learned Sessions Judge has also taken into consideration the fact that the present petitioner is claiming the ownership rights on the basis of the contract but the alleged contract / sale agreement is dated 03.01.2020 wherein the writing is dated 08.11.2018 and one more date 01.09.2020 is also mentioned in the document and thus, prima facie, learned Sessions Judge has come to conclusion that the contract itself is not clear and is ambiguous and in absence of any evidence as regards payment of loan installments and in view of the fact that respondent No.4 – Finance Company is also unable to clarify as to who made the payment of loan installments, it is difficult at this stage to presume that the present petitioner has paid the loan installments. Admittedly, under Section 482 of the CrPC, Court should not go into the disputed question of facts and material but prima facie it appears that registration certificate of the muddamal vehicle is on the name of respondent No.3 and as per the law laid down by this Court in the case of Nandiram vs. State of Gujarat and Ors. reported in 1967 Cri.L.J. 483, the person on whose name the motor vehicle stands with the registering authority, would be entitled to remain in custody thereof and not any other person, unless he is able to establish his superior title or claim over it. Herein, there is no any evidence which suggests the better title or possession of the present petitioner. However, it would be apt to rely on the decision of this Court in the case of Nandiram vs. State of Gujarat and Ors. reported in 1967 Cri.L.J. 483, wherein it has been held as follows:
“that person on whose name motor vehicle stands with registering authority will be entitled to remain in custody thereof and not any person unless he is able to establish his superior title or claim over it. Here in this case, the purchaser has shown his superior title by showing prima facie that he is a bonafide purchaser of vehicles for value without notice by paying money to the owner.”
Further, the Kerala High Court in the case of Jacob and Anr. vs. Jayabharat Credit & Investment Co. Ltd. and Others reported in MANU/KE/0124/1983, has been pleased to hold as follows:
“Interim custody of a motor vehicle has to be given to the registered owner. It cannot, at any rate, be given to a person who is not the registered owner even if the Police took possession of the same from him. This because the vehicle will have to be kept idle as only a registered owner can ply the same. If the vehicle cannot be used on the road, no purpose will be served in giving interim custody to anybody.”
The Karnataka High Court in the case of U. Kariyappa vs. P. Sreekantaiah and Another reported in MANU/KA/0025/1980 has observed as under:
“Sec.451 Cr. P.C. empowers the criminal court to make orders for interim custody of the property produced before it during trial and inquiry. When the property is produced before the criminal court, regard being had to nature of the property so produced, the criminal court has discretion to make such order as it thinks fit for the proper custody of such pending conclusion of enquiry or trial. While making an order for interim custody of a motor vehicle, what criminal court has to keep in view is who would be the best person to make use of the vehicle pending conclusion of the inquiry and trial. The provision of Sec. 22(1) and 24 of the Motor Vehicles Act indicate that the person in whose favour the certificate of registration is issued or stands, ordinarily and obviously is the proper person for the interim custody of the vehicle so seized and produced before the criminal court.”
In the case of T.C. Gopalan Nair vs. P. Kelu and Another reported in MANU/KA/0188/1973, the Karnataka High Court has held as follows:
“power of the magistrate to order custody of the property under Sec.516-A of the Criminal Procedure Code, 1898 does not extend to deciding ownership of the property under civil rights. It is strictly within the sphere of civil court. In order to find out true claimant of the property, such a motor vehicle, the Magistrate having regard to the Motor Vehicles Act, ought to have allowed the custody of such vehicle to the person in whose name certificate of registration stands, until any transfer of ownership is recorded in it.”
[7.2] At this stage, it is worthy to consider section 2(30) of the Motor Vehicles Act, which reads as follows:
“Section 2(30).- ‘owner’ means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement*, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement;
[8.0] In view of the above provision and as discussed hereinabove, the petitioner is not a registered owner of the vehicle and has failed to prove his ownership as regards to he has purchased the vehicle and paid loan installments also to respondent No.4 – Finance Company and except bare words, at this stage the petitioner is not having any evidence even to prove the said fact that he had made the payment towards installment of loan for the muddamal vehicle. Hence, this Court is not inclined to grant any relief in favor of the petitioner and does not find any reason to interfere in the findings recording by the learned Sessions Judge. Hence, detail inquiry qua said fact is required to be conducted in this regard. However, it is clarified that the learned Magistrate has to verify the aspect of ownership of the muddamal vehicle after conducting inquiry and shall handover the custody of the muddamal vehicle at the end of the trial if the petitioner is able to prove his better title and possession over respondent No.3.
[9.0] The learned trial Court is directed to decide the question of ownership of muddamal vehicle without being influenced by any of the observations made by the learned Revisional Court in Criminal Revision Application No.61/2023 while deciding the ownership and possession. Rule is hereby discharged.
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