Gujarat High Court
Yusuf Mohammed Khatri vs State Of Gujarat on 14 December, 2021
Bench: Gita Gopi
R/CR.MA/20254/2013 ORDER DATED: 14/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 20254 of 2013
With
R/SPECIAL CRIMINAL APPLICATION NO. 1479 of 2014
With
R/SPECIAL CRIMINAL APPLICATION NO. 1480 of 2014
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YUSUF MOHAMMED KHATRI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MRS NASRIN N SHAIKH(2451) for the Applicant(s) No. 1
MR NIRAV C THAKKAR with MS NISHA SHAH (2206) for the Respondent(s)
No. 2
MR PRANAV TRIVEDI, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 14/12/2021
COMMON ORAL ORDER
1. RULE. Learned Advocates appearing for the respective
respondents waive service of notice of Rule.
2. Criminal Miscellaneous Application No.20254/2013 is filed
by one Yusuf Mohammad Khatri who is the accused in
First Information Report being I-C.R. No.61/2013
registered on 17.10.2013 with B-Division Bhuj Police
Station, Kutch under Section 379 of the Indian Penal
Code. The petitioner being the accused has made a
prayer to quash and set aside the above First Information
Report.
3. Special Criminal Application No.1479/2014 and Special
Criminal Application No.1480/2014 are filed by Tausif
R/CR.MA/20254/2013 ORDER DATED: 14/12/2021
Ahemad Gafursha Saiyed against the common order
passed in Criminal Revision Applications No.26/2014 and
27/2014 by the learned 6th Additional Sessions Judge,
Bhuj-Kachchh. The said Tausif Ahemad Gafursha Saiyed
claims to be the owner of the Vehicle, i.e. Ford
Endeavour GJ-12-AR-0678 involved in the First
Information Report filed by Dipak Shamjibhai Kotak.
4. Learned Advocate Ms. Nasrin H. Shaikh appearing for the
applicant in Criminal Miscellaneous Application
No.20254/2013 submits that the complainant is working
as an Agent with the RTO Department and out of
business rivalry, it is submitted that a false and
concocted First Information Report has been lodged and
further, no ingredients of the alleged offence would get
attracted to the facts of the matter. It is submitted that if
at all any dispute regarding the vehicle is to be
considered between the complainant and the applicant
then it requires adjudication from the Civil Court. It is
further submitted that the complainant was not having
possession of the vehicle and the ownership of the
vehicle would be of Tausif Ahemad Gafursha Saiyed who
had purchased the same from Drupatsingh Himmatsinh
Sodha.
5. Learned Advocate Ms. Shaikh has relied on the following
judgments of the Apex Court :-
R/CR.MA/20254/2013 ORDER DATED: 14/12/2021
(a) Suvvari Sanyasi Apparao and Another v. Boddepalli
Lakshminarayana and Another reported in AIR 1962 SC
586;
(b) Chandi Kumar Das Karmarkar and Others v.
Abanidhar Roy reported in AIR 1965 SC 585;
(c) Ram Ekbal v. Jaldhari reported in 1972 Cri.L.J. 585 &
(d) Manoj Mahavir Prasad Khaitan v. Ram Gopal Poddar
reported in 2010 (10) SCC 673..
6. She submits that the complainant had moved for the First
Information Report alleging his bonafide claim of the
right on the vehicle and if the agreement of Sale is
required to be considered, then the very first requirement
will be of the ownership of the vehicle which the
complainant was required to enquire. It is also
submitted that had there been any transactions of money
then the complainant is required to go to the Civil Court
of the adjudication of rights.
7. Countering the arguments, it is submitted by learned
Advocate Mr. Nirav C. Thakkar appearing with learned
Advocate Ms. Nisha Shah that the complainant has very
categorically given all the details of the sale and the
circumstances under which the possession of the vehicle
was with the complainant and also the details as to when
and how the accused had taken away the vehicle which
was in the possession of the complainant.
R/CR.MA/20254/2013 ORDER DATED: 14/12/2021
8. Learned Advocate Mr. A.P. Shah for the petitioner in
Special Criminal Application No.1480/2014 submitted that
the possession could not be in the hands of Yusuf
Mohammed Khatri since Tausif Ahemad Gafursha Saiyed
was the owner of the vehicle who had purchased the
same on 09.10.2013. Learned Advocate Mr. Shah referring
to the copy of the R.C. Book stated that the vehicle was
registered in the name of the original owner - Ninabha
Himmatsinh Sodha who is the mother of Drupatsingh
Himmatsinh Sodha. Mr. Shah referred to the R.C. Book
showing the name of the applicant as Saiyed Tausif
Ahemad, being the owner of the Vehicle.
9. The said document in the form of Certificate of
Registration shows that the ownership of the vehicle was
in the name of Ninabha Himmatsinh Sodha. The
Agreement to Sell was executed on 09.10.2013 by the son
of the original owner with Tausif Ahemad Gafursha
Saiyed and the R.C. Book / and thereafter, the ownership
of the Vehicle as per the Certificate of Registration is in
the name of Tausif Ahemad Gafursha Saiyed. The First
Information Report was lodged on 17.10.2013. The
impugned First Information Report suggests that the
complainant on 26.05.2013 had informed Hitesh Soratiya
who is associated with M/s. Shiv Auto Consultants of his
necessity for a vehicle for his business. As per the First
R/CR.MA/20254/2013 ORDER DATED: 14/12/2021
Information Report, he informed the complainant that he
had a Car belonging to Yusuf Mohammad Khatri. The
sale price of the vehicle was said to be Rs.6,10,000/- and
thereafter, the complainant says that on the very same
day, he had given Rs.11,000/- to Yusuf Mohammad
Khatri in the office of Hitesh Soratiya. The complainant
further states that on the said day, Yusuf Khatri gave the
custody of the vehicle and he took the said Car to Anjar
and thereafter, on 29.05.2013 he sent Rs.3,25,000/- to
Vishnu Kanti Angadia and the said amount was received
by Yusuf Khatri and according to the complainant, a
writing was also done to that effect and for rest of the
money of Rs.2,75,000/- it was decided to pay the same
after necessary documents and NOC was received.
10. The complainant alleges that at about 11.00 a.m.,
he had gone with the Car from Anjar to RTO Office and
had parked the same in the compound of RTO Office,
Bhuj and had gone to complete his work. At about 3.30
p.m. it is alleged that Yusuf Khatri had come to him and
had asked for the remaining amount of Rs.2,75,000/-.
The complainant confronted him asking him about the
NOC and other documents and it is stated that only after
receiving the same, he would give payment of the
balance amount. The complainant alleges that Yusuf
Khatri who was with his friend, in his presence informed
R/CR.MA/20254/2013 ORDER DATED: 14/12/2021
him that he would bring the necessary documents and
had left the place. The complainant alleges that while
he was doing his work and after about 4.00 p.m., when
he came back to the compound, at the place where the
car was parked, he did not find his Car. It is alleged that
by using a duplicate key, Yusuf Khatri opened the lock of
the car and stole his Car. Thus, the complainant states
that an offence is committed on 10.06.2013 between 3.30
to 4.00 p.m. The reason for delay in lodging the First
Information Report is that the complainant had informed
about the incident to one Giriraj Jadeja who assured him
that he would get the car back for him.
11. The petitioner accused states that under these
circumstances, the provisions of Section 379 of the Indian
Penal Code could not get invoked. It is submitted that if
the whole of the transaction is to be considered and
taking into consideration the Banakhat dated 26.05.2013,
in the name of M/s. Shiv Auto Consultants, the
complainant at the most would be entitled to go before
the Civil Court for specific performance of contract and if
any amount is received by the petitioner, then the same
can be recovered by way civil action and can also pray
for any damages.
R/CR.MA/20254/2013 ORDER DATED: 14/12/2021
12. Section 378 of the Indian Penal Code reads thus :-
378. Theft - Whoever, intending to take dishonestly any
moveable property out of the possession of any person
without that person's consent, moves that property in
order to such taking, is said to commit theft.
Section 379 of the Indian Penal Code reads thus :-
379. Punishment for theft - Whoever commits theft shall
be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or
with both.
13. The complainant relies on the Agreement of Sale /
Banakhat dated 26.05.2013 to fortify the fact that he was
in possession of the vehicle. The fact emerging from the
record is that the ownership of the vehicle was with
Ninabha Himmatsinh. Sodha who sold the vehicle on
09.10.2013 to Tausif Ahemad Gafursha Saiyed. The
ownership of both the persons get reflected in the
Certificate of Registration. It appears that prior to
paying the initial amount of Rs.11,000/- and subsequently
Rs.3,25,000/-, the complainant had not verified the title
of the vehicle. It appears that Yusuf Mohammed Khatri
is an Agent with M/s. Shiv Auto Consultants which had
dealing with the complainant for sale of the vehicle. It
appears that money as collected upon was received by
the accused but when subsequent amount was asked for,
R/CR.MA/20254/2013 ORDER DATED: 14/12/2021
the deal could not be finalized. The agreement was
executed on 26.05.2013 regarding payment of money.
The vehicle at the relevant time in the hands of the
complainant could not be said to be of his own
ownership, at the most, it could be considered that the
complainant was in the custody of the vehicle, but the
same cannot be termed as lawful possession. Yusuf
Mohammed Khatri appears to be acting as an
intermediary for dealing of the vehicle and when the deal
could not be finalized, it appears that he had removed
the vehicle from the custody of the complainant. The
said act would not fall under the ingredients to attract
the offence of theft. The dispute between the accused
and the complainant would create a right to claim for a
civil injury as laid down in the judgment in the case of
Chandi Kumar Das Karmarkar and Others v. Abanidhar
Roy reported in AIR 1965 SC 585. The following
observations lend support to the proposition of law :-
"In our opinion there was an absence of the animus
furandi and the circumstances bring this case within the
rule that where the taking of movable property is in the
assertion of a bona fide claim or right, the act, though
it may amount to a civil injury, does not fall within the
offence of theft."
R/CR.MA/20254/2013 ORDER DATED: 14/12/2021
14. The First Information Report thus does not prima-
facie attract the ingredients of Section 379 of the Indian
Penal Code. In view of the same, the First Information
Report is required to be quashed. In rest of the
petitions, the applicant - Tausif Ahemad Gafursha Saiyed
has made a prayer to set aside the common order passed
on 05.04.2014 passed by the learned 6th Additional
Sessions Judge, Bhuj - Kutch stating that the learned
Revision Court has committed an error in remanding the
matter, for re-decision, to the trial Court and further
contended that the petitioner was ordered to surrender
the vehicle.
15. Criminal Revision Application No.26/2012 was filed
by Dipak Shamjibhai Kotak - the complainant and
Criminal Revision Application No.27/2014 is also filed
Dipak Shamjibhai Kotak. The complainant of the
impugned First Information Report as well as Tausif
Ahemad Gafursha Saiyed both had claimed custody of the
Vehicle under Section 451 of the Cr.PC. The trial Court
had ordered the custody in favour of Tausif Ahemad
Gafursha Saiyed thereby, allowing his application while
rejecting the application of Dipak Shamjibhai Kotak. The
Revision Court set aside both the orders and had ordered
for re-decision of the matters. It appears to this Court
that the order of the Revision Court is bad in law. Since
R/CR.MA/20254/2013 ORDER DATED: 14/12/2021
the ownership of the vehicle has been proved by Tausif
Ahemad Gafursha Saiyed by way of an agreement and
further his name as the owner is reflected in Certificate
of Registration. The learned Revisional Court ought to
have taken this fact into consideration. The legal
ownership of the vehicle would give the title to Tausif
Ahemad Gafursha Saiyed, to have interim custody of the
vehicle in question.
16. For for the foregoing reasons, the order of the
Revisional Court dated 05.04.2013 passed in Criminal
Revision Application No.26/2014 with Criminal Revision
Application No.27/2014 by the learned 6 th Additional
Sessions Judge, Bhuj-Kutch is set aside. The order dated
12.12.2013 passed in Criminal Miscellaneous Application
No.780/2013 by the learned Chief Judicial Magistrate,
Bhuj-Kutch is upheld.
17. This Court would also like to refer to the judgment
of the Apex Court in the case of Sunderbhai Ambalal
Desai v. State of Gujarat, AIR 2003 SC 638, wherein the
Apex Court has ordered release of muddamal articles
seized under the provisions of the Prohibition Act while
lamenting on the scenario of a number of articles having
been kept unattended and becoming scrap within the
police station premises or at any other designated places.
In Sunderbhai Ambalal Desai's case (supra), the Apex
R/CR.MA/20254/2013 ORDER DATED: 14/12/2021
Court has made the following observations:-
"4. Learned counsel further referred to the relevant
Sections 451 and 457 of Code of Criminal Procedure,
which read thus-
"451. Order for custody and disposal of property
pending trial in certain cases.-
When any property is produced before any Criminal
Court during any inquiry or trial, the Court may
make such order as it thinks fit for the proper
custody of such property pending the conclusion of
the inquiry or trial, and. if the property is subject
to speedy and natural decay, or if it is otherwise
expedient so to do, the Court may, after recording
such evidence as it thinks necessary, order it to be
sold or otherwise disposed of.
Explanation-For the purposes of this section,
"property" includes
(a) property of any kind or document which is
produced before the Court or which is in its
custody.
(b) any property regarding which an offence
appears to have been committed or which appears
to have been used for the commission of any
offence.
457. Procedure by police upon seizure of property.-
(1) Whenever the seizure of property by any
police officer is reported to a Magistrate under the
provisions of this Code, and such property is not
produced before a Criminal Court during an inquiry
or trial, the Magistrate may make such order as he
thinks fit respecting the disposal of such property or
the delivery of such property to the person entitled
to the possession thereof, or if such person cannot
be ascertained, respecting the custody and
production of such property.
R/CR.MA/20254/2013 ORDER DATED: 14/12/2021
(2) If the person so entitled is known, the
Magistrate may order the property to be delivered
to him on such conditions (if any) as the Magistrate
thinks fit and if such person is unknown, the
Magistrate may detain it and shall, in such case,
issue a proclamation specifying the articles of which
such property consists, and requiring any person
who may have a claim thereto, to appear before
him and establish his claim within six months from
the date of such proclamation."
5. Section 451 clearly empowers the Court to pass
appropriate orders with regard to such property, such as-
(1) for the proper custody pending conclusion of the
inquiry or trial;
(2) to order it to be sold or otherwise disposed of, after
recording such evidence as it think necessary;
(3) if the property is subject to speedy and natural
decay, to dispose of the same.
6. It is submitted that despite wide powers proper
orders are not passed by the Courts. It is also pointed
out that in the State of Gujarat there is Gujarat Police
Manual for disposal and custody of such articles. As per
the Manual also, various circulars are issued for
maintenance of proper registers for keeping the
muddamal articles in safe custody.
7. In our view, the powers under Section 451 Cr.P.C.
should be exercised expeditiously and judiciously. It
would serve various purposes, namely:-
1. 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 the proper panchanama before handing over
possession of article is prepared, that can be used
in evidence instead of its production before the
R/CR.MA/20254/2013 ORDER DATED: 14/12/2021
Court during the trial. If necessary, evidence could
also be recorded describing the nature of the
properly in detail; and
4. This jurisdiction of the Court to record
evidence should be exercised promptly so that there
may not be further chance of tampering with the
articles."
18. Hence, the interim custody of the above referred
vehicle, i.e. Ford Endeavour Vehicle No.GJ-12-AR-0678
(Engine No.8A 28645, Chassis No.NAJUXX NRZU8A
28645) under Section 451 of Cr.PC to Tausif Ahemad
Gafursha Saiyed as per the terms and conditions
contained in the order of the learned Chief Judicial
Magistrate, Bhuj-Kutch dated 12.12.2013 passed in
Criminal Miscellaneous Application No.780/2013 stands
confirmed.
19. In the result, the First Information Report being I-
C.R. No.61 of 2013 registered with 'B' Division Bhuj City
Police Station, Kutch, as also the Criminal Case No.2149
of 2014 pending before the learned 5th Additional Senior
Civil Judge and Chief Judicial Magistrate, Kutch-Bhuj and
all other consequential proceedings are quashed and set
aside. Rule is made absolute.
Direct Service is permitted.
Sd/-
(GITA GOPI,J)
Caroline
