State Of Gujarat &

1.0 By way of this petition under Article 226 of the Constitution of India, the petitioner who is the registered owner of the vehicle in question has prayed for to quash and set aside the impugned judgment and order passed by the learned City & Sessions Judge, Ahmedabad passed in Criminal Revision Application No.149 of 2007 dated 25.5.2007 and consequently confirmed the order passed by the learned Metropolitan Magistrate, Ahmedabad dated 19.3.2007 passed in Inquiry Case No.44 of 2006/ M Case No.2 of 2006 and consequently to give the custody of the Maruti Carin question to the petitioner.

2.0 That the petitioner is the registered owner of the Maruti Car in question being No. GJ­9B­2763. It appears that the said Maruti Car was agreed to be sold to respondent no.2 herein and it is the case of the applicant that he paid only Rs.1101/­ as token and thereafter he took the test drive and did not return the said Maruti Car to the petitioner. Therefore, the husband of the petitioner filed one complaint against respondent no.2 and one Baldevbhai D. Patel in the Court of learned Metropolitan Magistrate, Ahmedabad for the offences under Sections 406, 420 and 114 of the IPC, which was registered as Inquiry Case No.44 of 2006. It appears that the learned Metropolitan Magistrate passed an order for police investigation under Section 156(3) of the Code of Criminal Procedure and the same was sent to the Meghaninagar Police Station for investigation. It appears that during the course of the investigation, respondent no.3 – Investigating Officer of the Meghaninagar Police Station seized the said Maruti Car. Therefore, the petitioner submitted the application under Section 451 of the Code of Criminal Procedure for custody of the said muddamal Car. That the respondent no.2 also preferred similar application requesting to hand over the custody of the said Maruti Car to him. It appears that thereafter by order dated 19.3.2007, the learned Magistrate Court No.3 allowed the application submitted by the petitioner and rejected the application submitted by the respondent no.2 herein and directed to hand over the custody of the muddamal Maruti Car to the petitioner on condition to furnish / give security of Rs. 90,000/­ and on the terms and conditions mentioned in the said order dated 19.3.2007. Being aggrieved and dissatisfied with the order passed by the learned Metropolitan Magistrate Court No.3 dated 19.3.2007 in directing to hand over the custody of the Muddamal Car to the petitioner, respondent no.2 preferred Criminal Revision Application No. 149 of 2007 before the learned City and Sessions Judge, Ahmedabad and the Revisional Court by impugned judgment and order has allowed the said Criminal Revision Application and has quashed and set aside the order passed by the learned Metropolitan Magistrate and has directed to hand over the custody of the Muddmal Maruti Car to respondent no.2 on furnishing/ executing the Bond or Solvency of Rs. 70,000/­ or security of like amount and on further condition that till the trial is concluded he shall not transfer / alienate and / or change the condition of the Maruti Car. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Revisional Court, the petitioner has preferred present Special Criminal Application under Article 227 of the Constitution of India.

3.0 Shri Raval, learned advocate for the petitioner has vehemently submitted that the Revisional Court has materially erred in directing to hand over the custody of the muddamal Maruti Car to the respondent no.2 and has materially erred in quashing and setting aside the order passed by the learned Magistrate, by which, learned Magistrate directed to hand over the custody of the muddamal Maruti Car to the petitioner. It is submitted that admittedly the petitioner is the registered owner of the Maruti Car in question and therefore, she has better and superior title than that of the accused­respondent no.2. Therefore, relying upon the decision of the learned Single Judge in the case of Thakkar Mahendraprasad Bapalal vs. State of Gujarat & Anr reported in 1985 GLH 61 as well as another decision of the learned Single Judge in the case of Hussain Amibhai vs. Nyaj Mohmmad reported in 1990(2) GLR 1035, it is requested to allow the present Special Criminal Application and to quash and set aside the order passed by the learned City and Sessions Judge, Ahmedabad and to restore the order passed by the learned Metropolitan Magistrate Court No.3, Ahmedabad.

4.0 Shri Patel, learned advocate for the respondent no.2 has submitted that considering the transaction between the petitioner and / or her husband and respondent no.2 and considering the fact that respondent no.2 has paid a sum of Rs.60,000/­ for purchase of the disputed Maruti Car in question, no illegality or error has been committed by the learned Revisional Court in quashing and setting aside the order passed by the learned Metropolitan Magistrate and consequently directing to hand over the custody of the Maruti Car to the respondent no.2. Therefore, it is requested to dismiss the present Special Criminal Application and not to exercise the powers under Article 227 of the Constitution of India.

5.0 Shri Dabhi, learned APP appearing for the State has requested to pass appropriate order considering the facts and circumstances of the case.

6.0 Heard the learned advocates for the respective parties at length. It is required to be noted that as such the petitioner is registered owner of the Maruti Car in question and therefore, has better and superior title than that of the accused ­respondent no.2. It is required to be noted that it is the specific case on behalf of the husband of the petitioner that only a sum of Rs.1101/­ was paid towards sale consideration. On the other hand, it is the case of the respondent no.2 that he paid Rs.60,000/­, which is disputed by the petitioner. Therefore, it is disputed question of fact what amount was paid by the respondent no.2. The fact remains that the petitioner is the registered owner of the Maruti Car in question and as observed and held by this court in the case of Thakkar Mahendraprasad Bapalal (supra) and Hussain Amibhai (supra), the registered owner can be said to be having a better and superior title than that of the accused and therefore, the registered owner of the vehicle would normally be entitled to the custody of the disputed vehicle in question. Under the circumstances and considering the aforesaid two decisions of this Court, the order passed by the Revisional Court cannot be sustained and same deserves to be quashed and set aside.

7.0 In view of the above and for the reasons stated above, petition succeeds and the impugned order passed by the learned City and Sessions Judge, Ahmedabad passed in Criminal Revision Application No.149 of 2007 dated 25.5.2007 is hereby quashed and set aside and the order passed by the learned Metropolitan Magistrate, Ahmedabad dated 19.3.2007 in Inquiry Case No.44 of 2006/ M Case No.2 of 2006 is hereby restored and it is directed to hand over the custody of the muddmal Maruti Car in question being No. GJ­9B­2763 which is lying with the Meghaninagar Police Station on the same terms and conditions as mentioned by the learned Metropolitan Magistrate Court No.3 in the order dated 19.3.2007. Rule is made absolute to the aforesaid extent.

kaushik sd/­ (M.R.SHAH,J.)