IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 Crl.MC.No. 3754 of 2010() ------------------------------- CMP.1908/2010 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM CRIME NO.2190/2009 OF ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM DISTRICT .................... PETITIONER(S): PETITIONERS ------------------------------------ HDFC BANK LTD., MATHER SWUARE, OPP.RAILWAY STATION, ERNAKULAM, COCHIN – 18. REP. BY ITS POWER OF ATTORNEY HOLDER SUMITH P. PRASAD. BY ADV. SRI.PRADEESH CHACKO RESPONDENT(S): ACCUSED/COMPLAINANT --------------------------------------------------------- 1. SUB INSPECTOR OF POLICE, ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM. 2. SHAJI K.S., KONCHERRYIL HOUSE, MAYITHARA P.O., NEAR MAYINTHARA JUNCTION, CHERTHALA, ALAPPUZHA DISTRICT – 688 539. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1, R3 BY PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 3754 OF 2010 =========================== Dated this the 17th day of December,2010 ORDER Petitioner filed a complaint against the second respondent alleging that he committed offences under sections 406 and 420 of Indian Penal Code. It was based on consent Crime 2190/2009 of Ernakulam Town North Police Station was registered. BMW car KL 32-8400 was seized and produced before the Magistrate. Petitioner filed a petition under section 451 of Code of Criminal Procedure to release the car on interim custody. The petition was allowed. Petitioner thereafter filed CMP 1908/2010 for permission to dispose the car contending that huge amount is due to the petitioner bank and in such circumstances permission is to granted to sell the car. By Annexure II order, the petition was dismissed Crl.M.C.3754/2010 2 by Additional Chief Judicial Magistrate. Petition is filed under section 482 of Code of Criminal Procedure to quash Annexure II order and to grant permission to dispose the vehicle. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Though notice was served on the second respondent, he did not appear. 4. Learned counsel appearing for the petitioner submitted that by Annexure III order in Crl.M.C.2496/2008 in an identical case this court permitted sale of 13 motorcycles in public auction and in such circumstances, it is not in the interest of justice to deny the permission sought for. 5. Though BMW car 32-8400 was released to the petitioner for interim custody under section 451 of Code of Criminal Procedure, I do not find that on Crl.M.C.3754/2010 3 the facts of the case, permission is to be denied to the petitioner to dispose the vehicle. Amount is due to the petitioner bank. Retaining the car will not help the second respondent. It would only result in reducing the value of the vehicle. Instead if the car is sold in public auction and the amount is realised, it should necessarily be to the advantage of the second respondent also. In such circumstances, Annexure II order is to be quashed and permission is to be granted to dispose the vehicle as has been done by Annexure III order. Petition is allowed. Annexure II order is quashed. Petitioner is granted permission to dispose BMW motor car32-8400 in public auction after giving specific notice of thirty days to the second respondent conveying the details of the proposal to sell the vehicle in public auction. The public auction shall be published in a Malayalam Daily and either in Indian Express or Crl.M.C.3754/2010 4 the Hindu in all Kerala Editions sufficiently early. Petitioner shall also file an undertaking before the learned Magistrate that bonds for the entire amount so realised will be executed before the learned Magistrate. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006