Mahindra And Mahindra Fin. ... vs State Of Mha. Thr. Pso Kanhan Tha. ...
2023 Latest Caselaw 98 Bom

                                                    1                   crwp716.22.odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                NAGPUR BENCH, NAGPUR

             CRIMINAL WRIT PETITION NO.716 OF 2022

      Mahindra & Mahindra Financial Services
      Ltd. Through its Authorised
      Representative Mr. Arif Abdul Waheed
      Khan, Legal Manager, Aged about 45
      years, Occ: service, office at 7/A, Patil
      Complex, Ground Floor, Opp. S.T. Bus
      Stand, Ganeshpeth, Nagpur-440009.                        ... PETITIONER

            ---VERSUS---

  1. State of Maharashtra,
     Through Police Station Officer, Kanhan,
     Tah. Parshivani, Distt. Nagpur.

  2. Sandip s/o Damodhar Batulwar
     Aged about 39 years, Occ: Private,
     R/o Ward No.02, Jivanapur, Kuhi, Tah.
                                                               ...RESPONDENTS
     Kuhi, Dist. Nagpur.

 ----------------------------------------------------------------------------------------
 Shri M.R. Joharapurkar, Advocate for petitioner.
 Shri S.A. Ashirgade, APP for respondent no.1.
 ----------------------------------------------------------------------------------------
                                  CORAM              : G.A. SANAP, J.

                                  DATED             : JANUARY 04, 2023.

 ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard finally by

consent of learned advocate for the petitioner and learned

Additional Public Prosecutor for the respondent no.1/State. The

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respondent no.2 though served remained absent.

2. The order dated 25.11.2021 passed by the learned Judicial

Magistrate First Class, Kamptee, Court No.2 in Miscellaneous

Criminal Application No.556 of 2021 is challenged by the

petitioner. The petitioner is a finance company. The respondent

no.2 had borrowed the vehicle loan from the petitioner-company.

On purchase of the vehicle bearing registration

No.MH-40/BL-3419 the same was hypothecated with the

petitioner. The vehicle was involved in commission of crime

therefore the same was seized by the police in crime bearing Crime

No.221 of 2021 registered at Kanhan Police Station for the offences

punishable under Section 407 read with Section 34 of the Indian

Penal Code.

3. The petitioner-company made an application on

07.10.2021 in the Court of Judicial Magistrate First Class at

Kamptee for grant of custody and possession of the vehicle. In the

said application, the investigating officer filed reply on 24.11.2021.

During the pendency of this application, the vehicle owner Sandip

Damodhar Batulwar made an application for handing over the

custody of the vehicle to him on 22.11.2021. The Police filed say to

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this application on 25.11.2021. The custody of the vehicle was

claimed by the petitioner being financier with whom the vehicle was

hypothecated as well as by the registered owner.

4. The learned Magistrate instead of deciding both the

applications together, first decided the application subsequently

made by the registered owner on 25.11.2021 and subject to certain

conditions ordered the delivery of the custody of the vehicle to the

registered owner Sandip.

5. The petitioner came to know about this order later on.

Therefore, the petitioner has challenged the said order on multiple

grounds. One of the grounds is that either both applications should

have been heard and decided together or the application made by

the petitioner being first in point of time should have been decided

first.

6. The reply filed through investigating officer by the State

has supported the order in favour of owner of the vehicle.

7. It is to be noted that when say was filed by the

investigating officer to the application made by the registered owner

on 25.11.2021 it was duty of the investigating officer to disclose the

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pendency of the application for the same purpose by the petitioner

before the same Court. The investigating officer had filed say to the

application made by the petitioner on 24.11.2021. It therefore goes

without saying that the investigating officer had knowledge of the

pendency of the application made by the petitioner. The

investigating officer was therefore required to disclose this fact in the

reply filed to the application made by the registered owner

subsequently i.e. on 25.11.2021. It is further pertinent to note that in

absence of knowledge of the pendency of the application made by

the finance company (the petitioner in this petition), the learned

Magistrate decided the application made by the registered owner on

25.11.2021. The learned Magistrate in the order has categorically

stated that except the registered owner nobody has claimed the

custody of the seized vehicle. This observation would indicate that

pendency of the application made by the petitioner was

conveniently concealed from the Court.

8. In my opinion, the investigating officer was duty bound

to disclose the real state of affairs before the Court. Perusal of the

application made by the petitioner-finance company would show

that the registered owner was the party to the said application as a

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non-applicant no.2. The Roznama placed on record indicates that

the vehicle owner remained absent. The application made by the

registered owner would show that the petitioner-finance company

was not made party to the application for obtaining the custody of

the vehicle. In my view, therefore, the application made by the

finance company being first in point of time ought to have been

decided either before the application made by the registered owner

or together with the application made by the registered owner.

9. Shri M.R. Joharapurkar, learned advocate for the

petitioner relying upon the decisions of Culcutta High Court in the

case of M/s. Cholamandalam Investment & Fin Co Ltd Vs. State of

West Bengal reported in Law Finder Doc ID#1458971, Karnataka

High Court in the case of K.W. Ganapathy Vs. State of Karnataka

reported in Law Finder Doc ID#1225 and this Court in the case of

Tata Capital Financial Services Limited Vs. State of Maharashtra

and others (Criminal Application (APL) No.430 of 2014),

submitted that in such situation custody of the vehicle can be

handed over to the finance company and finance company can be

allowed to sell the vehicle.

10. In my view, on both counts the order passed by the

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learned Magistrate without hearing the finance company and before

taking any decision on the application made by the finance

company cannot be sustained. The petition therefore deserves to be

allowed. The petition is allowed.

11. The impugned order dated 25.11.2021 passed by the

learned Judicial Magistrate First Class, Kamptee, Court No.2, below

Exhibit-1 in Miscellaneous Criminal Application No.556 of 2021 is

set aside.

12. The application bearing Miscellaneous Criminal

Application No.556 of 2021 is restored to the file.

13. The learned Magistrate on restoration of the application

made by the registered owner shall decide the application made by

the petitioner-finance company and the registered owner together

after giving opportunity of hearing to all the parties.

14. The learned Magistrate shall take all such necessary steps

to secure the custody of the vehicle in the meantime.

Rule made absolute in above terms.

JUDGE

Wagh