IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Crl.MC.No. 1172 of 2000(B) ---------------------------------- CRIME NO.27/2000 OF NEDUPUZHA POLICE STATION PENDING BEFORE JFCM-11 OF THRISSUR. PETITIONER : ---------------- EXCEL FINANCE LTD., NOW AMALGAMATED WITH MCC FINANCE LTD. REPRESENTED BY ITS ASSISTANT GENERAL MANAGER A.R.RAMANATHAN IST FLOOR, RIAZ COMPLEX, R.S. ROAD, THRISSUR. BY ADV. SRI.K.I.MAYANKUTTY MATHER RESPONDENT : ----------------- 1. STATE OF KERALA, REPRESENTED BY ASSISTANT SUB INSPECTOR OF POLICE, NEDUPUZHA POICE STATION REPRESENTED BY PUBLIC PROSECUTOR. 2. SRI.K.SREERAMAN, S/O.(LATE) R.KRISHNA IYER, KIZHAKKEMADOM, OORAKAM P.O., THRISSUR. ADV. SRI.G.PRABHAKARAN PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/12/2008 ALONG WITH CRL.R.P.417 OF 2000, THE COURT ON THE SAME DAY PASSED THE FOLLOWING : THOMAS P. JOSEPH, J. ------------------------------ Crl M.C. No.1172 of 2000 & CRL.R.P.No. 417 of 2000 ------------------------------------------------------------- Dated this the12th day of December, 2008 O R D E R Though these petitions are coming up before me for hearing since 14/11/2008 onwards, on no occasion there was representation for petitioner and respondent and hence I am constrained to dispose of the same without hearing them or their counsel. 2. Heard Public Prosecutor. 3. Perused the relevant records. 4. Criminal M.C. No.1172 of 2000 is filed with a prayer to quash Annexure F, F.I.R. in Crime No.27/2000 of Nedupuzha Police station. That case is registered against one Shreeramachandran, said to be the employee of the petitioner, M/s. Excel Finance Ltd. and others for offences punishable under Sections 379, 395 and 403 of the Penal Code on a complaint preferred by the second respondent alleging that on 5/03/1998 at about 9.50 A.M, in prosecution of the common object, the accused committed theft and robbery of the bus belonging to him. According to the petitioner, as per hire purchase agreement executed Crl M.C. No.1172 / 2000 & CRL.R.P.No. 417 / 2000 2 between it and the second respondent, the bus in question was given to the possession of the second respondent, but he later defaulted payment of installments and thereon exercising the right to confiscate the bus in terms of the hire purchase agreement, that vehicle was re- possessed on 5/02/1998. Second respondent filed O.S. No.1082 of 1998 for mandatory injunction to return the vehicle. In the meantime, the bus was seized by the Revenue recovery (Deputy Tahsildar) for amounts due from the second respondent and thereon, petitioner filed O.P No.4641/99 in this court. There was Annexure B, interim order dated 24/02/1999 to return the vehicle to the petitioner on compliance of certain conditions. But petitioner could not comply with those conditions. Second respondent then filed C.M.P No.34586/1999 in this court and got an interim order in his favour (Annexure C) on 31/08/1999 to return the vehicle to him on condition of payment of certain amount. That order was challenged by the petitioner in W.A. No.1903 of 1999 and as per Annexure D order dated 7/09/1999, operation of Annexure C order was stayed. Writ appeal was disposed of on 28/10/1999 making the interim order absolute. Petitioner claims Crl M.C. No.1172 / 2000 & CRL.R.P.No. 417 / 2000 3 that it got possession of the vehicle and it is while so, that the second respondent filed complaint in the JFCM alleging theft of the vehicle. According to the petitioner, complaint was forwarded to the police for investigation and while so, vehicle was seized. It is in the above circumstances that prayer is made to quash Annexure F, F.I.R. One thing to be noted is that it is not any of the accused in Annexure F, F.I.R who has come up with the prayer to quash the same. Employer of the first accused has come forward with a prayer to quash the FIR. There is no reason why this court should exercise the power under Section 482 of the Code of Criminal Procedure in that circumstance. That apart, if what is pleaded by petitioner were correct, it is well within the power of the investigating officer to collect materials regarding that and if no offence is made out, submit final report accordingly. That, petitioner has no right to seize the vehicle by force without recourse to the provisions of law has been held by this court in Bahuleyan Vs. State of Kerala [2007(4) K.L.T. 402]. Therefore, I am not persuaded to accept the request for quashing Annexure F, F.I.R. 5. In Crl. R.P. No.417 of 2000, challenge is to the order dated Crl M.C. No.1172 / 2000 & CRL.R.P.No. 417 / 2000 4 29/02/2000 in M.P No. 1960 of 2000 in Criminal M.C. No.27/2000 arising out of the same case. There, an order has been passed by the learned magistrate under Section 451 of the Cr.P.C giving interim custody of the vehicle to the first respondent. Petition for interim custody was not opposed by the law officer and thereon that vehicle was ordered to be released to the first respondent on executing bond for Rs.5,00,000/-, on the further condition that he shall produce the vehicle before court as and when directed. According to the petitioner, it being the financier and real owner is entitled to custody. 6. Assuming that the petitioner has financed the purchase of the vehicle by first respondent that by itself does not entitle it to possess the vehicle. Even according to the petitioner, it is for alleged non payment of installments that the vehicle was seized by it. Certainly therefore, before such seizure the first respondent was operating the bus. In Bhahuleyan Vs. State of Kerala referred (Supra) in paragraph 10 it is observed that the registered owner was rightly found by learned magistrate to be the person entitled to get possession of the vehicle. There is no reason why a different stand should be taken in the facts of Crl M.C. No.1172 / 2000 & CRL.R.P.No. 417 / 2000 5 this case. Moreover Section 451 of the Code deals interim custody of the vehicle. It is well within the power of the magistrate concerned to issue appropriate direction regarding the production of the vehicle, if such a course is found necessary. There is nothing illegal or irregular in the order of learned magistrate giving interim custody of the vehicle to the first respondent requiring interference by this court. These petitions fail and are accordingly dismissed. Criminal Miscellaneous Petition No.1114 of 2000 shall stand dismissed. THOMAS P. JOSEPH, JUDGE scm