Partly allowed

MD Azmal Hoque v. the State of Assam and Anr.

Gauhati HC14 Sept 2022Crl.Rev.P./31/2022

Case brief

AI extract

What is this about?

petitioner seeking zimma (custody) of a seized JCB vehicle based on an unregistered sale agreement. The court set aside the order refusing custody to either party but dismissed the prayer for release to the petitioner as there was confirmed prima facie ownership of the registered owner and the Civil Court decides title.

What did the court decide?

Quashing of the impugned order refusing custody; dismissal of prayer for interim custody in favour of the petitioner.

MD Azmal Hoque Vs the State of Assam and Anr. — Property and Title | Gauhati HC (2022)

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Page No.# 1/5

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GAHC010014642022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Rev.P./31/2022

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MD AZMAL HOQUE S/O LATE SUKUR ALI R/O VILL- TAMULDI P.S. BOKO DIST. KAMRUP, ASSAM, PIN-783123

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VERSUS

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THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM

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2:AMIN NURUL ISLAM S/O LATE PASHAN ALI R/O VILL- MAHAVIR PATHAR P.O. KALATOLI BAZAR P.S. CHHAYGAON DIST. KAMRUP ASSAM PIN-78112

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Advocate for the Petitioner : MR. S C BISWAS

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Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR

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ORDER

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14.09.2022

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Heard Mr. A. K. Ahmed, learned counsel appearing for the petitioner. Also heard

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Mr. B. B. Gogoi, learned Addl. Public Prosecutor, Assam appearing for the State respondent No. 1 and Mr. K. Agarwal, learned counsel for the respondent No. 2.

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By this petition under Section 397/401 read with Section 451 of the Code of Criminal Procedure (‘Cr.P.C.’ for short), the petitioner has prayed for quashing of the impugned order, dated 10.01.2022, passed by the learned Chief Judicial Magistrate, Kamrup, Amingaon (‘C.J.M.’ for short) rejecting the zimma of a vehicle (JCB) bearing registration No.ML- 10-B-3715 in Chhaygaon P.S. Case No. 992/2021 corresponding to G.R. Case No. 2046 (K)/2021.

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The petitioner’s case precisely is that he purchased one JCB vehicle bearing registration No. ML-10-B-3715 on 05.09.2016 from its registered owner/the respondent No.2 by executing a Sale Deed for a consideration of Rs. 9,00,000/(Rupees nine lakhs) only to be paid on equal 21 monthly instalments of Rs. 55,567/-. However, the transfer of ownership of the said vehicle could not be done due to unwillingness of the owner/the respondent No.2 although he signed in Form-29 vide Annexure-4 and petitioner paid 20(twenty) instalments from 03.08.2018 for crediting to the bank account of the respondent No.2, which the latter failed to deposit on time in his loan account. In the meantime, the petitioner allowed his man to use the vehicle for rents from time to time. Thereafter, the respondent No.2/the registered owner of the vehicle lodged an F.I.R. with Chhaygaon Police Station against the petitioner whereupon Chhaygaon P.S. case No. 992/2021 under Sections 406/420 of the IPC was registered and during investigation seized the said vehicle. The petitioner contends that he paid the entire amount of loan drawn against purchase of the vehicle to the finance company and as such, he has the right to the ownership of the vehicle, which the respondent No. 2 is bound to transfer his ownership over the vehicle as per agreement, dated 24.07.2018 and as such, he has the right to custody of the seized JCB.

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The impugned order, dated 10.01.2022 reads hereinbelow extracted-

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“10.01.2022

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Both petitioners are represented.

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Petitioner namely, Amin Nurul Islam filed petition No. 1164 u/s 451 Cr.P.C. praying for custody of JCB vehicle bearing registration number ML-10-B-3715 which was seized in connection with the instant case.

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Petitioner namely, Md. Ajmal Hoque also filed petition no. 1178 praying for custody of the same

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vehicle.

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Heard both sides.

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Petitioner, Md. Ajmal Hoque also filed petition no. 1240 stating that petitioner Amin Nurul Islam who is the registered owner of the vehicle sold the vehicle to him by executing a sale deed date 15.07.2018 for Rs.20,66,907/- out of which he paid Rs.9,00,000/- in cash and the remaining Rs.11,66,907/- was to be paid in 21 EMIs of Rs.55,567/- and the petitioner stated that he cleared the entire amount but the registered owner did not deposit the money to the financer.

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The registered owner, i.e. petitioner Amin Nurul Islam denied that petitioner Ajmal Hoque deposited the EMIs.

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Learned counsel for petitioner, Amin Nurul Islam admitted of receiving Rs.9,00,000/- but denied that Ajmal Hoque deposited the remaining EMI as agreed.

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Learned counsel for both the zimma petitioners on several occasions prayed for time to produce relevant documents regarding the transaction of money but failed to do so and today, both the counsel for the petitioners prayed that the zimma petitions to be dismissed.

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As the ownership of the seized JCB vehicle bearing registration number ML-10-B-3715 could not be ascertained, I am not inclined to allow the zimma petition no. 1164 & 1178 and accordingly, both the petitions stands rejected.

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Zimma Petition nos. 1164 and 1178 are disposed of.”

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I have given due consideration to the arguments advanced by the learned counsel of both sides. Perused record.

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In Sunderbhai Ambalal Desai Vs. State of Gujarat, reported in (2002) 10 SCC 283, the Hon’ble Supreme Court held that order for custody and disposal of property pending trial should be exercised expeditiously and judiciously. It would serve various purposes, namely (1) the owner of the article would not suffer because of its remaining unused or by its misappropriation; (2) Court or the police would not be required to keep the article in safe custody; (3) if proper panchnama before handing over the possession of the article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; (4) the jurisdiction of the Court to record evidence should be exercised promptly so that there may be no further chance of tampering with the articles. So far the vehicle is concerned, the

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Apex Court observed that in case of seized vehicles, it is no use keeping them at police station for long and it is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and bank guarantee as well as security for return of the said vehicles.

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A perusal of the impugned order shows that the learned Magistrate, in the backdrop of claim and counter claim made by the parties could not ascertain the ownership of the seized JCB vehicle and as such, refused to release it in favour of either of the parties. It is needless to point out that registration of vehicle in one’s name prima facie signifies the registered owner’s right to hold and use it. There is no dispute that the respondent No. 2 is the registered owner of the seized JCB vehicle. Therefore, the respondent No. 2 being admittedly the registered owner, in the opinion of this Court, he is entitled to its interim custody pending investigation or trial.

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The dispute that the petitioner purchased the vehicle on the basis of an unregistered agreement and accordingly, on delivery by the respondent No. 2(vendor), he used the vehicle and in terms of the agreement he paid all the instalments towards their agreed consideration, but as the registration of the vehicle has not been transferred as per the provisions of the Motor Vehicles Act to the petitioner (buyer), in such a fact situation, the ownership cannot be deemed automatically stood transferred for the purpose of releasing it in interim custody of the petitoner (buyer) pending investigation. The criminal Court cannot finally decide the disputed question of ownership of a vehicle, which is in the domain of the appropriate Civil Court, but can decide only prima facie ownership on the presumption of rightful owner is always in favour of the registered owner.

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Therefore, the petition stands partly allowed to the extent of setting aside and quashing of the impugned order.

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The petition stands dismissed in respect of the prayer for interim custody of the seized vehicle in favour of the petitioner.

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The petition stands disposed of.

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JUDGE

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Comparing Assistant

MD Azmal Hoque v. the State of Assam and Anr.

Case brief

What is this about?

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MD Azmal Hoque v. the State of Assam and Anr.

Case brief

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