Interim Order 2

Order Details: Order Below EX 1
Pdf Text: C. C. No. 1202 PW 2022 State Vs Anand Singh and ors.
CNR No.MHMM18-006053-2022
ORDER BELOW
(Applications for Return of Property filed by Mr. Satyendra Thakur and Mr.
Naresh Katariya)
1. Perused record. Heard all the parties.
2. The brief facts leading to filing of present application for release of
property is that -
The informant Mr. Satyendra Ramarjun Thakur, hereinafter referred
as informant/first applicant approached Bandra Police Station, Mumbai,
on 22.02.2022 and lodged report stating that he owns a white coloured
car, Mercedes Benz, bearing registration No. MH-02-DG-0222,
hereinafter referred as disputed car. On 04.02.2021, he came in contact
with Accused No.2, Mr. Anand Shyamnarayan Singh, his close relative.
Said accused informed him that if first applicant is willing to sell his car
accused Mr. Anand will help him. Informant/first applicant shown his
willingness to do so and forwarded proposal that the price should be Rs.8
lacs. Immediately, at that time itself accused Mr. Anand, handed him over
an amount of Rs.50,000/- and undertook to pay the remaining amount of
Rs.7.50 lacs by other means within 08 to 10 days. He also taken away the
disputed car from the first applicant along with various documents
relevant to transaction. First applicant assured him of signing of other
documents for transfer of ownership after getting purchaser and transfer
of amount.
Then accused Mr. Anand, informed to first applicant that the deal of
the car was finalized with Accused No.1, Mr. Sanjay Ghanshyam Sainani.
Accused Mr. Anand, further assured that he will pay the amount and after
doing paper work the amount will be transferred. But as no amount
transferred after one week first applicant/informant again contacted
accused Mr. Anand. On that he informed that the custody of car is handed
over to accused Mr. Sanjay, for selling it and after finalizing deal he will
handover the amount. But, no such thing occurred and despite repeated
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C. C. No. 1202 PW 2022 State Vs Anand Singh and ors.
CNR No.MHMM18-006053-2022
contacts the amount was not received by first applicant/informant.
Accused Mr. Anand, started avoiding the first applicant.
On 09.07.2021, informant/first applicant somehow came in contact
with accused Mr. Anand, and he returned the advance amount of
Rs.50,000/- to him and canceled the deal. He demanded back the custody
of disputed car. But accused Mr. Anand, neither informed anything about
the said car nor returned it. In a period running between 10.11.2021 to
18.02.2022, informant was suffering from illness. Therefore, on
22.02.2022, he contacted concerned police station and lodged report
stating that both the accused persons forged documents pertaining to
transfer of ownership and taken away his car without paying the full
amount of consideration and thereby committed cheating and fraud on
him.
3. Investigation commenced on the basis of this report. It is found that
in the mean time the custody of disputed car transferred to several persons
and was lastly found in custody of Mr. Naresh K. Katariya, hereinafter as
referred as second applicant. Said applicant claimed that the
informant/first applicant lodged false First Information Report by
misguiding the police. On 12.03.2021, he purchased the disputed car from
a firm named as Trupti Cars for amount of Rs.8,50,000/- and after getting
executed all the relevant documents from the vendor and completing
other formalities. He also produced in support of his contention all the
relevant documents, including R.C. Book, clearance certificate, insurance
policy, payment details, etc. He also recorded his statement before police.
4. The say of Investigating Officer, Ld. A.P.P. and other accused
persons was called. Investigating Officer and Ld. A.P.P. objected to
handing over the custody of the car to any of the applicants stating that
investigation is going on and the ownership of the car is yet to be
asserted. The Accused No.2, Mr. Anand Singh, filed his written reply and
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C. C. No. 1202 PW 2022 State Vs Anand Singh and ors.
CNR No.MHMM18-006053-2022
contended that custody of the car should be handed over to informant/first
applicant.
5. The submissions of all the concerned parties are in tune with their
respective contentions.
6. The summary of the allegations made by first applicant is that he
handed over the custody of the car to accused Mr. Anand, on 04.02.2021,
for selling it after accepting part consideration. But as he failed to
complete the transaction he refunded the amount and sought custody of
his car. But as it is not handed over he lodged report on 22.02.2022, after
one year against both the accused persons. Due to illness there caused
delay in lodging of the report.
7. In the mean time the second applicant purchased car from a firm
named as Trupti Cars. While executing transaction he paid whole amount
of consideration. He completed all the formalities and required
documentation.
Claim of first applicant
8. So far as claim of first applicant Mr. Satyendra Singh, is concerned,
main basis of his claim is that he is still owner of the disputed car, he has
not received full amount of consideration and accused persons committed
fraud on him by forging certain documents and transferred it to second
applicant. He admitted that accused No.2, Mr. Anand Singh, is his close
relative and he handed over the custody of car to him.
9. If we perused record it reflects that informant/first applicant is a
educated person belonged to elite category and its very difficult to believe
that without accepting anything substantive he will handover the custody
of car. Further, it also very difficult to believe that he will remain silent
for a period of more than one year and that too when custody of car is
transferred to several persons in the mean time.
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C. C. No. 1202 PW 2022 State Vs Anand Singh and ors.
CNR No.MHMM18-006053-2022
10. It is important to note that the custody and ownership of the
disputed vehicle is transferred to second applicant on 21.03.2021, i.e.
almost before one year of lodging First Information Report. The delay
caused to approach police is substantial. Therefore, there should be
concrete evidence in support of the allegations and delay caused. But such
evidence is lacking in the charge sheet. Informant/first applicant also had
not filed any such evidence on record in support of his contention. He
preferred to rely on charge sheet.
11. Further, the second applicant produced on record a letter given by
first applicant to Sr. Inspector, Oshiwara P.S., Mumbai, wherein first
applicant contended that he has handed over the custody of car to accused
No.1, Mr. Sanjay Sainani, and not to Accused No.2, Mr. Anand Singh,
after entering into deal about disputed car for amount of Rs.9 lacs. This
letter is not seriously disputed by him and creates doubt about the version
of informant/first applicant.
12. Informant/first applicant admitted that accused Mr. Anand Singh, is
his close relative. He has also not seriously disputed the facts pertaining
to transfer of custody and ownership of the car to the second applicant on
21.03.2021. During whole proceedings, from remand to commencement
of inquiry in the matter after filing of the charge sheet, till date both these
persons supported each other. The informant/first applicant given no
objection to the bail applicant filed by accused Mr. Anand Singh, and
accused Mr. Anand Singh supported the claim of informant/first applicant
over the disputed car, besides other grounds. Thus, if the conduct of both
these persons considered in the light of above discussed aspects of the
matter, it can be said that there is something which both these persons
concealing from the court by shaking hands with each other. The
bonafides of the claim of the informant/first applicant are thus doubtful.
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C. C. No. 1202 PW 2022 State Vs Anand Singh and ors.
CNR No.MHMM18-006053-2022
Claim of second applicant
13. Against the above observations if we considered claim of the
second applicant Mr. Naresh Katariya, it is not in dispute that he
purchased disputed car from the firm named as Trupti Cars. While
purchasing it he paid the whole amount of consideration after getting
executed all the documents of ownership in his favour and completing
other formalities. These facts are not in serious dispute.
14. The only disputed fact is genuineness of the documents pertaining
to transfer of ownership. If we considered all the documents in the light of
conduct of the first informant and delay caused in lodging of the First
Information Report at his instance, it can be said that the documents
executed in favour of the second applicant are in his aid, as compared to
first applicant, for the limited purpose of handing over custody of the car.
Those documents can not be held to be totally fake or forged one, for such
limited purpose.
Limited scope of inquiry -
15. The scope of inquiry under Section 457 of Code of Criminal
Procedure to hand over custody of the property is very limited. The law is
now well settled that while adjudicating adverse claims over particular
property the criminal court deciding such adverse claims should not
decide the ownership but should decide whose custody is proper custody
or who is legally entitled for interim custody of the property on the basis
of material produced before criminal court. Therefore, adverse claims of
both the parties can not be gone into in detail. The scope for scrutiny of
material is limited to this extent only.
Conclusion -
16. Considering this legal position, if we considered the adverse claims
of both the parties in the light of discussion in preceding paragraphs it is
thus clear that there is doubt over the bonafides of the claim of first
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C. C. No. 1202 PW 2022 State Vs Anand Singh and ors.
CNR No.MHMM18-006053-2022
applicant Mr. Satyendra Ramarjun Thakur. However, as observed above
the documents came on record showing ownership of the second
applicant Mr. Naresh Katariya, over the disputed car, can not be said to be
totally fake or forged, for such limited purpose.
17. The ownership and custody of the car is transferred to second
applicant almost one year ago before the registration of offence. He is the
last custodian of the car. He has paid whole amount of consideration. His
custody can not be said to be illegal. The first applicant may have claim
over the car on the basis of his contentions. But the above discussed
aspects of the matter after comparison of the fact and material produced
on record, tilts the balance in favour of second applicant Mr. Naresh
Kantilal Katariya. As such the claim of second applicant carries more
weight as compared to claim of first applicant.
18. Thus, application filed by first applicant Mr. Satyendra Ramarjun
Thakur, needs to be rejected. However, application filed by second
applicant Mr. Naresh Kantilal Katariya, needs to be allowed. Accordingly,
following order -
ORDER
a. Application filed by second applicant Mr. Naresh Kantilal Katariya,
is allowed.
b. Application filed by first applicant Mr. Satyendra Ramarjun
Thakur, is rejected.
c. The respondent/P.S.O., Bandra Police Station, Mumbai, is herewith
directed to hand over the custody of disputed car i.e. white coloured
Mercedes Benz, bearing registration No. MH-02-DG-0222, seized in
connection with an offence registered at C. R. No.138/2022, registered
with Bandra Police Station, Mumbai, for offences punishable under
Sections 406, etc. of Indian Penal Code, to second applicant Mr. Naresh
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C. C. No. 1202 PW 2022 State Vs Anand Singh and ors.
CNR No.MHMM18-006053-2022
Kantilal Katariya, on his executing Indemnity Bond of Rs.8 lacs, before
him.
d. The P.S.O., Bandra Police Station, Mumbai, or Investigating
Officer, is directed to report the compliance and send all the documents
pertaining to handing over custody to this court, for being annexed with
the present main record.
e. It is clarified that observations made above are strictly limited for
the decision of the present applications only and will not in any way
binding and considered by this court during trial and further adjudication
of the main matter.
MUMBAI (KOMALSING RAJPUT)
DATE – 12.09.2022 M.M., 12TH COURT, BANDRA, MUMBAI
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