IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 Crl.MC.No. 2527 of 2011() ------------------------- AGAINST THE ORDER DATED 22/06/2011 IN CMP.NO.998/2011, CMP.NO. 1129/2011, AND CMP 1568/2011 IN CRIME NO.233/2011 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI. .................... PETITIONER(S): --------------- BASHEER, S/O.MAIDHEEN, AGED 43 THEKKEKOOTTUNKAL VEEDU, PERUMPILLICHIRA KARA KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.ALEXANDER JOSEPH RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, ADIMALI POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. PREJEESH, S.O.SHAJI KUMARAMKUNNEL VEEDU, PAKUTHIPALAM KEERITHODU KARA, KANJIKUZHAY VILLAGE. 3. STEPHANOSE, S/O.VARGHESE MECHERI VEEDU, RAYONPURAM KARA ERNAKULAM DISTRICT. PUBLIC PROSECUTOR SRI.P.M.SANEER FOR R1. SRI.ANOOP.V.NAIR FOR R2 DR.K.P.SATHEESAN FOR R3 SRI.M.R.JAYAPRASAD FOR R3 SRI.P.MOHANDAS (ERNAKULAM) FOR R3 SRI.M.MUHAMMED MUHAZIN FOR R3 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SU CR.M.C.NO.2527/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A1: A COPY OF THE CERTIFICATE OF REGISTRATION OF AUTORICKSHAW NO.KL-38-9613. ANNEXURE A2: A COPY OF THE AGREEMENT DATED 11/9/2010. ANNEXURE A3: A COPY OF THE AGREEMENT DATED 3/2/2011. ANNEXURE A4: A COPY OF THE COMPLAINT DATED 10/2/2011 FILED BY THE 2ND RESPONDENT BEFORE THE JFCM COURT, ADIMALI. ANNEXURE A5: A COPY OF THE FIR IN CR.NO.233 DATED 16/2/2011 OF ADIMALI POLICE STATION. ANNEXURE A6: A COPY OF THE CLAIM PETITION FILED BY THE PETITIONER BEFORE THE JFCM, ADIMALI. RESPONDENTS' ANNEXURES: NIL /TRUE COPY/ P.A. TO JUDGE SU N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.2527 of 2011 ----------------------------------- Dated this the 13th day of October 2011 O R D E R An autorickshaw bearing Reg.No.KL-38-9613 was seized by the police based on a complaint filed by the 2nd respondent. It was produced before the learned Magistrate. The petitioner contends that he is the RC owner of the vehicle. The vehicle was subject to Hire Purchase agreement with the 3rd respondent, the Financier (Pattimattom Auto Finance). Admittedly the instalments due to the 3rd respondent were not paid in full. There was no privity of contract between R2 and R3. The grievance of the petitioner is that since the vehicle was given interim custody to the 2nd respondent and the 2nd respondent is not remitting the instalments due to the 3rd respondent, he is suffering a lot. The learned Magistrate ordered interim custody of the vehicle to be given to the 2nd respondent on Crl.M.C. No.2527 of 2011 -: 2 :- executing a bond for Rs.2,00,000/-. It is submitted that based on that order the 2nd respondent has got release of the vehicle from the court. 2. The learned counsel for the petitioner attacked the order passed by the court below contending that the court below omitted to take note of the fact that the 2nd respondent did not comply with the conditions in the agreement relating to the payment of instalments. In that view of the matter, the vehicle should not have been released to the 2nd respondent. As long as the petitioner continues to be the RC owner and since the 2nd respondent did not comply with the conditions in the agreement, he cannot get better title than the petitioner. It is also pointed out that there is a term of re-conveyance to the petitioner and it was in terms of the agreement for re-conveyance the vehicle was taken possession by the petitioner. It was pertaining to that, a complaint was filed. It is also pointed out that petitioner and respondent Nos.2 and 3 approached Crl.M.C. No.2527 of 2011 -: 3 :- the learned Magistrate for getting release of the vehicle. 3. The 2nd respondent herein though was served with notice remained absent. In the circumstances highlighted by the petitioner and the 3rd respondent, I find that the order granting interim custody of the vehicle to the 2nd respondent cannot be sustained. If the 2nd respondent had been present he could have been directed to enter into a contract with the 3rd respondent so that the petitioner can get himself absolved from the liability. Now the petitioner is ready to have the vehicle released to the 3rd respondent. The submission made by the learned counsel for the petitioner that the petitioner has no objection for ordering release of the vehicle to the 3rd respondent is recorded. Since the vehicle was already released to the 2nd respondent, the learned Magistrate will cause the vehicle to be seized and produced before the court and on production of the same, it shall be released to the 3rd respondent on appropriate conditions. This order will not preclude any of Crl.M.C. No.2527 of 2011 -: 4 :- the parties from proceeding against the other party/parties in accordance with law for redressal of their respective grievances. This Crl.M.C. is disposed of accordingly. N.K.BALAKRISHNAN, JUDGE. Jvt