Mansing Balasaheb Pawar And Ors vs The State Of Maharashtra And Anr
2016 Latest Caselaw 2685 Bom

                                        1                    Cri.WP.No.173.06.odt




                                                                           
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                          BENCH AT AURANGABAD




                                                   
                    CRIMINAL WRIT PETITION NO.  173 OF 2006


    1.     Mansing S/o Balasaheb Pawar, 




                                                  
            Age : 44 years, Occ : Proprietor
            of Ratnaprabha Motors,
            Adalat Road, Aurangabad.
            R/o Plot No. 406, N-1, CIDCO,




                                       
            Aurangabad, Tq. & Dist. Aurangabad.
                               
    2.     Jayesh S/o Dinkarrao Kulkarni,
             Age : 38 years, Occ : Service,
                              
             as Branch Manager of the Ratnaprabha
             Motors, Jalna.
             R/o Dhoka Mill, Jawahar Baug,
             Jalna, Tq. & Dist. Jalna.
      


    3.      Avinash S/o Prabhakarrao Kulkarni,
   



             Age : 35 years, Occ : Service as Assistant
             Manager, Ratnaprabha Motors, Jalna.
             R/o Opps. J.E.S. College, Jalna,
             Tq. & Dist. Jalna.





    4.      Vasantrao S/o Tulsiram Sawant.
             Age : 28 years, Occ : Service 
             as Sales Manager of Ratnaprabha Motors,
             Jalna.





             R/o Bhagya Nagar, Jalna, 
             Tq. & Dist. Jalna.
                                                               Petitioners

    VERSUS


    1.      The State of Maharashtra,
             (Copy to be served on Public Prosecutor,

    atu/June.2016




      ::: Uploaded on - 16/06/2016                 ::: Downloaded on - 30/07/2016 04:45:09 :::
                                               2                    Cri.WP.No.173.06.odt




                                                                                 
              High Court of Judicature of Bombay
              Bench at Aurangabad.)




                                                         
    2.       Banderao S/o Namaji Sonovane,
              Age : 45 years, Occ : Agri,
              R/o. Vadi Wadi, Tq. & Dist. Jalna.                     Respondents

Mr. R. N. Dhorde, Senior Counsel i/b Mr. R. A. Tambe, Advocate for the Petitioners.

Mr. S. G. Karlekar, APP for Respondent No.1/State. Mr. V. G. Mete, Advocate for Respondent No.2.

ig .....

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 09/06/2016

ORAL JUDGEMENT :

1. The petitioner is aggrieved by the impugned judgment and

order dated 10.01.2006 delivered by the Revisional Court by which

Criminal Revision Application No. 160 of 2005 filed by the respondent

No. 2 was allowed and process was issued against the petitioners

under Section 420 read with Section 34 of the Indian Penal Code.

The order of the Trial Court refusing to issue process and dismissing

the complaint dated 05.07.2005 was therefore quashed and set aside

by the Revisional Court.

2. This petition was admitted by this Court on 22.03.2006 and

atu/June.2016

interim relief in terms of prayer Clause 'C' was granted. Prayer

Clause 'C' reads as under :-

Pending hearing and final disposal of this Criminal Writ Petition, grant stay to the impugned

judgment and order dated 10.01.2006 passed by the learned 4th Adhoc Additional Sessions Judge, Jalna in Criminal Revision Petition No.160/2005 allowing revision and issuing the process against the

petitioners; and for that purpose issue necessary order :

3. Petitioner No.1 is the proprietor of a Proprietory firm indulging

in the business of selling vehicles manufactured by Mahindra and

Mahindra Company. The said firm is said to be an authorized dealer

for the sale of such vehicles and for facilitating after sales service.

The other petitioners are the employees of the firm.

4. Shri. Dhorde, the Learned Senior Advocate contends on behalf

of the petitioners that respondent No. 2 had purchased a new

Mahindra Maxx Jeep of silver colour bearing Engine No.

AB44D77559 on 28.07.2004. After the said jeep was purchased, it

was delivered to respondent No. 2/ Complainant, who took

possession of the said vehicle. After using it for about 15 to 20 days,

atu/June.2016

since the owner / Respondent No. 2 had certain issues with regard to

the vibrations being felt when the Engine of the vehicle was running,

he had brought the vehicle for servicing to the petitioners. The

vehicle was duly serviced and was handed over in a good condition to

Respondent No.2/ owner, which he accepted by expressing

satisfaction.

5. The respondent No.2 lodged a complaint dated 16.12.2004 with

the Judicial Magistrate First Class and sought orders under Section

156 (3) of the Code of Criminal Procedure. It was contended that

though he had purchased the vehicle on 28.07.2004, he had a reason

to believe that the said vehicle was earlier sold to another person and

the said vehicle was, therefore, 'RE-SOLD' to the Respondent No.2..

He further complained that whitener was applied on the service book

of the vehicle so as to hide the name of the earlier owner and

thereafter, the name of Respondent No. 2 was written over the

whitener in order to project that he was the owner of the said vehicle.

Based on the said impression, Respondent No.2 had sought an order

from the learned Judicial Magistrate First Class, so as to initiate

atu/June.2016

Police Investigation in the matter.

6. The Police had carried out investigation and have recorded the

statements of the Petitioners as well as the Respondent No. 2 and one

Mr. Uddhavrao Madhavrao Gadekar who, according to Respondent

No. 2 was the first owner of the vehicle. The report was submitted

on 08.03.2005 to the Learned Judicial Magistrate First Class

whereby it was indicated that there was no evidence to substantiate

the contentions of the complainant that the vehicle was earlier sold

to Mr. Gadekar and resold to the Complainant. It was also mentioned

in the report that the vehicle is in running condition and the

Complainant was using the said vehicle ever since it was registered

with the R.T.O., Jalna, and was allotted the Registration No. MH-21-

C-1473.

7. Shri. Dhorde, therefore, submits that considering the report of

the concerned Police Station submitted on the investigation carried

out under orders of the learned Judicial Magistrate First Class, the

Learned Judicial Magistrate First Class, passed an order dated

atu/June.2016

05.07.2005, concluding that there was no evidence on record and

there was no reasonable ground to issue process against the

Petitioners. The Complaint was therefore, dismissed.

8. Shri. Dhorde, submits that the complainant then preferred

Criminal Revision Petition No. 160 of 2005. After hearing the parties,

the Revisional Court set aside the order of the learned Judicial

Magistrate First Class and directed issuance of process against the

petitioners under Section 420 read with 34 of the Indian Penal Code.

9. Shri. Dhorde, submits that the thrust of the second

Respondent No2/Complainant is that the vehicle which was already

sold to Mr. Gadekar, has been resold to him by applying whitener on

the service book so as to conceal the name of the first owner.

10. He submits that this apprehension of the Complainant / owner

is totally misplaced. The Petitioners have disclosed all factual details

to the Investigating Agency. It was specifically brought to the notice

of the Investigating Agency as well as the Learned Judicial Magistrate

atu/June.2016

First Class, that Mr. Gadekar, had earlier placed an order for

purchasing the same Mahindra Maxx Jeep in May 2004. Since 20

per cent of the ex - showroom price was paid by Mr. Gadekar, his

name was entered in the service book which is in fact the Operator's

Manual Book which contains free service coupons and is commonly

called as service Book. An insurance cover note was also prepared

since Mr. Gadekar made the Petitioners believe that he would deposit

the remaining 80 percent ex-showroom price and would then take

the delivery of the vehicle. Since Mr. Gadekar was unable to deposit

the remainder amount of 80 percent, the transaction was cancelled

and the vehicle was, therefore, not delivered to Mr. Gadekar.

11. Shri. Dhorde, categorically submits that to establish an earlier

sale of a vehicle or the resale of a vehicle, the said vehicle needs to be

registered with the concerned R.T.O. of the said District and the

vehicle has to be delivered to the customer so as to be taken to the

R.T.O. for registration. He submits that there was no evidence before

the Trial Court and factually the said vehicle was never registered

with any R.T.O., much less in the name of Mr. Gadekar. The

atu/June.2016

documentation was kept ready considering the fact that Mr. Gadekar,

was to pay the remainder 80 per cent amount, which is a usual

practice in the automobile industry as the Petitioners had received 20

percent of the amount. Once it was realized that Mr. Gadekar, did not

have the financial strength to proceed to purchase the vehicle, the

vehicle was therefore, retained by the Petitioners in their showroom

and which was available for inspection and test drive to the

Complainant.

12. Shri Dhorde further submits that the Complainant had taken

the test drive of the vehicle and is the first owner of the said vehicle

after it was sold to him on 28.07.2004. He had made the down

payment and had obtained financial assistance from a financial

company and the vehicle was delivered to him along with the

Operator's Manual. It was in this backdrop that the whitener was

used on the Operator's Manual so as to write the name of the

Complainant as he became the first owner of the vehicle.

13. Shri Dhorde further submits that the scope of interference of

atu/June.2016

the Revisional Court was limited. Merely because a second view was

possible, the Revisional Court could not have interfered with the

findings of the Learned Judicial Magistrate First Class. The

concerned Police authorities had investigated into the matter and had

recorded the statements of the petitioners as well as the Complainant

/ owner, had specifically recorded the statement of Mr. Gadekar, who

had stated that he had not purchased the vehicle, that he had paid

20 percent of the ex-showroom price which is in fact the invoice

amount and since he was unable to the make the further payment of

80 percent, he had aborted his intention to purchase the said vehicle.

He specifically stated in his statement to the Police concerned that he

had not taken the custody of the vehicle, and had not used it, much

less ever registered the said vehicle with the R.T.O. These statements

were totally disregarded by the Revisional Court which was impressed

only by the fact that whitener was applied on the Operator's Manual

and which would, therefore, mean that the vehicle was earlier sold to

another person. He therefore, prays that the impugned Judgment be

set aside and the order of the learned Judicial Magistrate First Class,

be sustained.

atu/June.2016

14. Shri Mete learned Advocate for Respondent No. 2/

Owner /Complainant, has strenuously defended the impugned order.

He submits that he had developed an apprehension that the vehicle

was earlier sold to another person for two reasons. Firstly, that there

were vibrations felt from the engine of the vehicle and secondly,

whitener was applied on the Operator's Manual. He concedes that

the vehicle showed 240 kilometers on the odometer when the vehicle

was purchased on 28.07.2004.

15. Shri Mete submits that the Revisional Court rightly appreciated

that as whitener was applied on the Operator's Manual, it indicated

a suspicious act and since the name of the Complainant was written

upon the whitener, the Revisional Court rightly concluded that the

vehicle has been resold to the Complainant. The statement of the

Driver of the Complainant was also considered wherein, he stated

that after about 15 to 20 days of the delivery of the vehicle, the driver

sensed vibrations in the engine. The Driver, however, stated that he

saw the whitener on the service book after he had used the vehicle

atu/June.2016

for 4000 kilometers. Shri Mete further submits that the Jeep has not

been returned by the Complainant to the Petitioner, though he is

unable to state whether, the Complainant still uses the same Jeep

after a passage of about 12 years. He, therefore, prays for the

dismissal of this petition.

16.

I have considered the submissions of the learned Advocates.

17. It is trite law that the scope of interference of the Revisional

Court is limited. The Hon'ble Apex Court has dealt with this issue in

the matters of Shalini Shyam Shetty and another Vs. Rajendra

Shankar Patil, ( 2010) 8 SCC, 329 and in the matter of Radhey

Shyam and another Vs. Chhabi Nath and others (2015) 5 SCC, 423 :

2015 (3) SCALE 88. Merely because a second view or a different

view is possible, interference can not be caused in the orders passed

by the Trial Court. Moreover, in matters wherein an order of refusal

to issue process or acquittal are concerned, unless such orders

appear to be patently illegal, perverse and erroneous, no interference

is called for.

atu/June.2016

18. In the back drop of the contention of the complainant that a

sold vehicle was resold to him, I find that the said contention is

misconceived. The Issuance of a cover note or acceptance of 20 per

cent of the ex-showroom price of a vehicle would not mean that the

vehicle has been delivered to the prospective owner. Unless the entire

amount of the ex-showroom price of the vehicle is not paid, no dealer

would, in normal or usual circumstances, hand over the custody of

the vehicle to the prospective purchaser. It is not in dispute that the

said vehicle was never registered with the R.T.O. Therefore, even

prima facie, there was no material before the Trial Court to conclude

that the vehicle was already sold to Mr. Gadekar and thereafter,

surreptitiously resold to the Complainant.

19. The statement made by Mr. Gadekar, coupled with the

statements of the Petitioners as well as the Complainant and his

driver, would indicate that there is no evidence that the said Jeep

was sold to Mr. Gadekar and he had carried away the same and/or

had used it. Mr. Gadekar specifically states in his statement to the

atu/June.2016

Police that he had indeed paid 20 percent of the ex-showroom price

about seven months prior to the date 28.07.2004, when the

Complainant purchased the said vehicle. Since he could not pay the

remaining 80 percent amount, he aborted his intention to go ahead

and purchase the said vehicle. He specifically stated that the said

vehicle was never handed over to him and he had not used it. The

vehicle, therefore, was not a "Pre-owned' vehicle.

20. The statement of the Driver of the complainant also indicates

that a test drive of the said vehicle was taken before it was purchased

and after being satisfied, the Complainant/Owner selected the said

vehicle / model and completed the formalities of purchasing the

same. Since the Driver noticed certain vibrations, he returned with

the vehicle to the Agency and voiced his complaint. Thereafter, the

Agency has attended to his complaint and rectified the problem. The

Jeep was then utilized for about four months and had clocked about

4000 kilometers. It was then that the Complainant felt suspicious

about his purchase transaction as he noticed whitener on the

Owner's Manual.

atu/June.2016

21. In my view, the Revisional Court could not have relied upon the

solitary aspect of whitener being applied on the Owner's Manual as

being indicative of the act of the petitioners amounting to offences

under Section 420 read with Section 34 of the Indian Penal Code. It

was a probable situation and the contention of the petitioners was

supported by the statement of Mr. Gadekar that he had initiated the

formality of purchasing the vehicle by paying 20 percent of the

amount and had aborted his plan to purchase the vehicle midway

through.

22. It was therefore possible in this backdrop that the Petitioners

were left with no option but to apply a whitener as the Owner's

Manual is the book which accompanies every vehicle. It contains free

service pass/coupons and such Owner's Manual is to be handed over

to the owner of the said vehicle. In my view, the Revisional Court

could not have ignored the statements of Mr. Gadekar, the Driver of

the Complainant, the Complainant himself and the petitioners, only

to be guided by the solitary aspect of application of a whitener on the

atu/June.2016

manual.

23. Not withstanding the above, if the vehicle was suffering from

certain mechanical problems, which is quite possible with any vehicle

or machine or equipment, such problems can be attended to by the

Servicing Agency. Merely because vibrations were noticed in the

engine would not mean that the vehicle was earlier sold to another

person and resold to the Complainant. Mechanical problems are not

necessarily indicative of a purported earlier sale of the vehicle.

24 In the light of the above, I find that the impugned order passed

by the Revisional Court is perverse. The same has been passed

merely because a second view was possible and by totally ignoring

the statements recorded by the Police authorities. There was no

evidence that the vehicle was earlier sold to any person. In the

absence of such evidence, the conclusion of the Revesional Court

that the scoring off of the name in the Service Book and the

vibrations in the engine indicate that an old Jeep was sold to the

Complainant, is a perverse conclusion.

atu/June.2016

25. In the light of the above, this petition succeeds. The impugned

Judgment dated 10.01.2006 is quashed and set aside and Criminal

Revision Petition No. 160 of 2005, is therefore, dismissed. Rule is

made absolute in the above terms.

( RAVINDRA V. GHUGE, J.)

atu/June.2016