IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :06.08.2010 Coram THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM CRIMINAL REVISION CASE NOs.414 and 699 of 2010 Crl.R.C.No.414 of 2010 M.Chitra ... Petitioner -Vs.- 1. The Inspector of Police, Senthurai Police Station Ariyalur District. 2. Chinnasamy @ Thangam ... Respondents Crl.R.C.No.699 of 2010 Chinnasamy @ Thangam ... Petitioner ..vs.. 1. State represented by The Inspector of Police, Senthurai Police Station 2. M. Chitra ... Respondents (2nd respondent in Crl.R.C.699 of 2010 is impleaded as per order dated 21.07.2010 made in M.P.No.1 of 2010) Revisions against the orders dated 08.04.2010 made in Crl.M.P.No.1381 of 2010 and Crl.M.P.No.1388 of 2010 on the file of the Judicial Magistrate,Ariyalur. For Petitioner in Crl.RC.414 } Mr. R.Thiagarajan and for } : Senior Counsel for 2nd respondent in Crl.RC.699 } M/s.T.Ravichandran For 1st Respondent in : Mr. V.R.Balasubramaniam both Crl.R.Cs. Additional Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in Crl.RC.699 } and for } : M/s.M.Deivanandam 2nd respondent in Crl.RC.414 } C O M M O N J U D G M E N T The revision petitioner in Crl.R.C.No.414 of 2010 and revision petitioner in Crl.R.C.No.699 of 2010 both have filed applications before the learned Judicial Magistrate, Ariyalur in Crl.M.P.Nos.1381 and 1388 of 2010 respectively, for the interim custody of the vehicle JCB – BOCLIN bearing Registration No. TN-46-E-3393. The learned Magistrate passed common order dismissing both the petitions filed by the respective petitioners, holding that both the petitioners are not entitled for the interim custody since the investigation is pending. Aggrieved by that order, both the petitioners have preferred the above said revisions. 2. The case of petitioner in Crl.R.C.No.414 of 2010, Tmt.Chitra, is that she entered into hire purchase agreement with Kotak Mahindra Bank Ltd., and purchased the vehicle in question and it was agreed by her to pay the total loan amount in 35 monthly instalments and the monthly instalment was fixed as Rs.61,180/-. The loan was obtained on 21.10.2006 and thereafter 16 instalments were paid by the petitioner. Thereafter as she did not pay monthly instalments for two months, on 24.02.2008, the vehicle was seized by Kotak Mahindra Bank Ltd.,. Though according to Kotak Mahindra Bank Ltd.,, the vehicle was repossessed for non-payment of the monthly instalments, the petitioner Chitra had given a complaint to the police and on that basis a case was registered in Cr.No.150 of 2010 by Senthurai Police on 15.03.2010 for offences under Sections 392 and 420 IPC. On the basis of the complaint, the police seized the vehicle from the Kotak Mahindra Bank Ltd., and produced before the court and the vehicle is now in the custody of the court. According to the petitioner in Crl.R.C.No.414 of 2010, Mrs.Chitra, though the petitioner went to Kotak Mahindra Bank Ltd., on 27.02.2008 and enquired about the vehicle, she was informed by the Manager of the Bank to pay two months arrears of default, and then only the vehicle will be handed over to her. On believing that the petitioner paid Rs.1,22,400/- and on receiving the arrears of amount, the vehicle was not returned to the petitioner and she was cheated by the bank. Though the petitioner gave a complaint to the Superintendent of Police, Ariyalur, on 09.06.2008, no complaint was registered and therefore, the petitioner had approached the Hon'ble High Court under Section 482 Cr.P.C in Crl.O.P.No.24863 of 2008 and thereafter a direction was given to the petitioner (Chitra) to give a fresh complaint and the direction to the police to register it. On the basis of the order passed by the Hon'ble High Court on 09.10.2009, a https://hcservices.ecourts.gov.in/hcservices/ new complaint was given by the petitioner and the case was also registered. It is stated by the petitioner that in the mean time, fraud has been committed as if the vehicle seized by the Kotak Mahindra Bank Ltd., has been sold to one Chinnasamy @ Thangam, the petitioner in Crl.R.C.No.699 of 2010. 3. The case of the petitioner in Crl.R.C.No.699 of 2010 Chinnasamy @ Thangam is that he is a bonafide purchaser of the vehicle and he purchased the vehicle from one Muruganandam on 14.05.2008, who had purchased the vehicle from the finance company Kotak Mahindra Bank Ltd.,. 4. Mr.Thiagarajan, the learned senior counsel submitted that though the petitioner Chitra came forward to pay two monthly instalments of Rs.61,180/-, as it was promised by Kotak Mahindra Bank Ltd., the officials had to return the vehicle, but cheated the owner of the vehicle Chitra by not returning the same. The R.C. Book of the vehicle still stands in the name of Chitra and she is also in possession of the R.C. Book. The bank has played fraud by showing as if the vehicle was sold to Muruganandam and thereafter it was sold to Chinnasamy @ Thangam, but no document has been filed in support of it. 5. Mr.M.Deivanandam, learned counsel for the petitioner in Crl.R.C.No.699 of 2010 Chinnasamy @ Thangam submitted that the owner of the vehicle Chitra, who appeared before the bank on paying a sum of Rs.1,22,400/-, also gave a letter to the bank, which is also marked as Ex.P3. During the enquiry before the learned Magistrate and in the said letter she has stated that again on 05.03.2008 she will pay further two instalments and if that amount is not paid, any action can be taken by the bank. Either on 05.03.2008 or thereafter the owner of the vehicle, Chitra, has not paid any amount and only in the said circumstance, the bank has sold the vehicle to Muruganandam and thereafter, the petitioner Chinnasamy @ Thangam and Ramachandran jointly purchased the vehicle from Muruuganandam, under receipt for a consideration of Rs.13,50,000/-. 6. The learned Additional Public Prosecutor submitted that the investigation is still pending in this case. 7. This Court considered the submissions and perused the records. 8. It is an admitted fact that the owner of the vehicle, who entered into hire purchase agreement with Kotak Mahindra Bank Ltd., had purchased the said vehicle and it was agreed by her to pay the total loan amount by 35 monthly instalments and the monthly instalment was fixed as Rs.61,180/- and paid 16 instalments and subsequently, 2 instalments were not paid and therefore, the vehicle was seized by the bank. https://hcservices.ecourts.gov.in/hcservices/ 9. Though according to the owner of the vehicle, the vehicle was seized on 24.02.2008, within three days from 22.02.2008, she had appeared before Kotak Mahindra Bank Ltd.,, Trichy and she has also paid a sum of Rs.1,22,400/- and also agreed to pay further two monthly instalments on 05.03.2008 and also agreed to take the vehicle on that day and if the amount was not paid on 05.03.2008, the bank was at liberty to do anything. Ex.P3 letter is signed by Chitra. In the evidence recorded by the Magistrate also she admitted her signature and also stated Ex.P3 letter was written by her husband. 10. According to the petitioner Chinnasamy @ Thangam, the vehicle was sold to Muruganandam on 14.05.2008 by the bank, who was also examined as PW.2 and thereafter the petitioner Chinnasamy @ Thangam purchased it from Muruganandam on 20.07.2008 for a consideration amount of Rs.13,50,000/- and a copy of the receipt has also been filed. 11. From the evidence available, it appears that the petitioner Chitra/owner has committed default in paying the monthly instalments and as the Kotak Mahindra Bank Ltd., was entitled to seize the vehicle, after seizing the vehicle sold it to another person. Prima facie, the petitioner in R.C.No.699 of 2010 Chinnasamy @ Thangam is entitled for the interim custody of the vehicle, being bonafide purchaser of the vehicle. 12. For the aforesaid reasons, the Crl.R.C.No.414 of 2010 filed by Mrs.Chitra is dismissed and Crl.R.C.No.699 of 2010 filed by Mr.Chinnasamy @ Thangam is allowed. The learned Magistrate is directed to return the vehicle to Mr.Chinnasamy @ Thangam for interim custody on the following conditions:- 1) The petitioner Chinnasamy @ Thangam shall execute an indemnity bond for Rs.15,00,000/- (Rupees fifteen lakhs only) with one surety for the like sum; 2) The petitioner shall file an affidavit giving an undertaking that he will not alienate the vehicle and he shall produce the vehicle before the court as and when required. 13. Since the R.C. Book is in the possession of the petitioner/owner Mrs.Chitra, the learned Magistrate shall not insist for the production of the said R.C. Book by the petitioner in Crl.R.C.No.699 of 2010, viz., Chinnasamy @ Thangam. https://hcservices.ecourts.gov.in/hcservices/ 14. This order will not prevent the petitioner in Crl.R.C.414 of 2010 Chitra from approaching the civil court and it is for the civil court to decide the issue and may also pass any interim custody order as per law without being prejudicied by any observation made in this order. No costs. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Judicial Magistrate, Ariyalur. 2. Do Through the Chief Judicial Magistrate, Trichy. 3. The Inspector of Police, Senthurai Police Station Ariyalur District. 4. The Public Prosecutor, High Court, Madras + 1 cc to Mr. T. Ravichandran, Advocate SR No.57952 + 1 cc to Mr. M. Deivanandam, Advocate SR No.57736 KLT(CO) SR/20.8.2010 Crl.R.C.Nos.414 and 699 of 2010 https://hcservices.ecourts.gov.in/hcservices/