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Brijendra Singh Vs. Brij Kumar Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1976CriLJ467
AppellantBrijendra Singh
RespondentBrij Kumar Gupta and ors.
Excerpt:
- .....of the magistrate, dated 29th april, 1975, by which he ordered bus no. uso 4385 to be delivered to brij kumar gupta opposite party no. 1, as it was deemed to have been recovered from his possession. the bus was seized by the police on the basis of a first information report lodged by the petitioner under sections 420, 468 and 379, i.p.c. against brij kumar gupta. it was alleged in the first information report that the petitioner had purchased the bus from the firm kishun lai brijesh kumar and the same had been financed by brij kumar gupta opposite party no. 1 and the money had been 'borrowed from him on the basis of a pronote for a sum of rs. 12,500. it was further alleged that it had been settled between the petitioner and brij kumar gupta that the petitioner would pay rs. 1,000 per.....
Judgment:
ORDER

H.N. Kapoor, J.

1. This is a petition under Section 482, Cr.P.C. filed for quashing the order of the Magistrate, dated 29th April, 1975, by which he ordered Bus No. USO 4385 to be delivered to Brij Kumar Gupta opposite party No. 1, as it was deemed to have been recovered from his possession. The bus was seized by the police on the basis of a first information report lodged by the petitioner under Sections 420, 468 and 379, I.P.C. against Brij Kumar Gupta. It was alleged in the first information report that the petitioner had purchased the bus from the firm Kishun Lai Brijesh Kumar and the same had been financed by Brij Kumar Gupta opposite party No. 1 and the money had been 'borrowed from him on the basis of a pronote for a sum of Rs. 12,500. It was further alleged that it had been settled between the petitioner and Brij Kumar Gupta that the petitioner would pay Rs. 1,000 per month to Brij Kumar Gupta and the petitioner used to pay the money regularly to him, but Brij Kumar did not issue any receipt, It was also alleged that Brij Kumar had obtained signatures on blank papers and stamp papers from the petitioner when he was under the influence of liquor. On 1st January, 1975, Brij Kumar wanted the bus to be transferred, but the applicant did not agree to it. On 8th January, 1975, Brij Kumar then took away the bus with the help of Ram Kishun Driver from the possession of the driver of the petitioner, when the .petitioner was away. His driver informed the petitioner on his return that the bus had ' been sold to Ram Kishun Manohar Lai for Rs. 60,000, It was also stated that the petitioner had learnt that the bus was standing in Generalganj, Mathura.

2. The bus was seized toy the police from Generalganj, Mathura. On the basis of this report, the police made investigation and then submitted a final report as it was considered to be a dispute of civil nature. The learned Magistrate then passed the impugned order dated April 29, 1975. It appears that Brij Kumar filed a civil suit in January, 1975 soon after a first information report was lodged for a declaration that the bus belonged to him. He had prayed for a temporary injunction restraining Brijendra Singh from taking possession of the bus from the police. In that suit, he had filed several documents as has been averred in the counter-affidavit. Temporary injunction was, however, refused in that suit. F. A, F. O. No. 67 of 1975 was preferred in this Court and the same was dismissed by a Division Bench vide its order dated April 10, 1975, It was observed by this Court in that decision that temporary injunction in that suit was against the spirit of Section 41, Sub-section (d) of the Specific Relief Act. Section 41(d) reads as follows:-

Injunction when refused-

41. An injunction cannot be granted-.

(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;...

3. The Civil Court obviously took the view that the Magistrate was seized of the matter and it was for the Magistrate to pass suitable orders for the disposal of the property. It was obviously of the view that any injunction order passed by the civil court in such a case may amount to restraining a person from prosecution proceedings in a criminal matter.

4. The order about the custody of the property had to be passed under Sec-' tion 457, Cr, P.C. (New). It is a consistent view of the court that after the criminal proceedings are dropped the property should ordinarily be returned to the person from whose possession it was taken. It was so held in the case of Zafar Ali v. Tausik Hasan, 1971 All Cri C 101 = (1971 Cri LJ 986). It was also held in an un-reported case of Badan Singh v. State of U P (Criminal Revision No, 568 of 1972) decided by Hon'ble Mr. Justice J. M. L. Sinha on 17-3-1975 (All.). In fact similar view was expressed by the Division Bench of this Court in the case of Muneshwar Bux Singh v. State : AIR1956All199 . It was observed as follows :

In our opinion where property is recovered from the possession of a person, a court for the purpose of an order under Section 523 must hold that he is entitled to its possession.

5. learned Counsel for the petitioner has relied on some further observations made in that case. It was, observed that there were three exceptions to the case. The second exception is as follows :

2. Where the property is recovered from the possession of a person, but this (possession has been acquired either in a dishonest or unlawful manner.

6. learned Counsel for the petitioner has argued that the Magistrate did not hold any inquiry having this aspect in mind and wrongly observed that the bus was obviously seized from the possession of Sri Brij Kumar Gupta, and hence, he is the person entitled to the possession of the bus. According to him in the first place the bus was not actually seized from the possession of Brij Kumar as the recovery memo (Annexure 'E' to the rejoinder affidavit) shows that the bus was lying unguarded near the Nagar Palika Office on the road side and no person was in possession of the same. Secondly, he has argued that even if this could be considered to be the possession of Brii Kumar, he had obtained it unlawfully and dishonestly within the meaning of the above cited Division Bench Authority. It may be observed here that in the first information report, it was a clear case of the petitioner that the bus had been taken away toy Brij Kumar from the possession of the driver of the petitioner. Even the order of the Division Bench of this Court passed on April 10, 1975, in F.A.F.O. No. 67 of 1975 (All) shows that the bus in question was seized from the possession of the appellant Brij Kumar. The learned Magistrate was, therefore, not wrong in observing that it was obviously seized from the possession of Brii Kumar. As regards the possession of Brij Kumar being dishonest or unlawful, it could have 'been decided only if he was prosecuted and convicted on the basis of the first information report. It could not have been possible for the Magistrate to record such a finding on the basis of the material 'before him when it was not considered a fit case for prosecuting Brij Kumar on the basis of the first information report. It may also 'be observed that in the above cited case reported in AIR 1958 All 199 = (1956 Cri LJ 363) this was primarily required to set aside the order for payment of money to one Raghunandan Prasad which order certainly could not have been passed under Section 523, Cr.P.C.(old). On the basis of the mere allegations made by the petitioner in the first information report, such a finding certainly could not have been recorded. It is significant that Brij Kumar has stated in his counter-affidavit that he had obtained receipt from Kishun Lai which he has filed in the Civil Court. It has not 'been mentioned by Brijendra Singh anywhere that he is also in possession of any receipt. He relies only on the fact that he is the registered owner. His name could have been entered on the basis of a letter issued to the Regional Transport Authority by Kishun Lai, but it is claimed by Bri.i Kumar that he is actually owner of the vehicle under the hire purchase agreement. The hire purchase agreement is executed on a printed form. As already stated above, it is of great significance that he had obtained receipt from Kishun Lai after paying the price, which he has filed in the civil court. Brij Kumar also claimed that he had spent Rs. 40,000 over the repairs of the bus after purchasing it for Rs. 20,000 from Kishun Lai. It is significant that even in the first information report it was alleged that Brij Kumar had subsequently sold the bus to Ram Kishun Manohar Lai for Rs. 60,000. This shows that the present value of the bus is about Rs, 60,000. Brij Kur^r has also relied on surrender deed executed in his favour which is said to have been filed in the Civil Court. I am referring to these facts in order to show that the equities also appear to be in favour of Brij Kumar.

7. I, therefore, see no reason to interfere with the order dated April 29, 1975, passed by the Magistrate. The petition is accordingly dismissed.


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