IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.12.2011 CORAM THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY Crl.O.P.No.14661 of 2011 S.V.S.Auto Investment, rep. by Managing Partner, T.Sekar, No.12, V.O.C. Street, Gudiyattam Town, Vellore District. .. Petitioner Vs 1. The Inspector of Police, Veppankuppam Police Station, Vellore District. 2. M.Ravi. 3. D.Suresh Kumar .. Respondents Criminal Original Petition filed under section 482 of Criminal Procedure Code seeking to relax the conditions No.3, 4 and 5 of the order dated 24.11.2009 passed in Crl.M.P.No.3570 of 2009 by the Judicial Magistrate No.III, Vellore. For Petitioner : Mr.V.M.G.Ramakrishnan For Respondents: Mr.C.Emalias, Govt.Adv.(Crl.side) for R1. Mr.D.Rajagopal, for R2 & R3. O R D E R The petitioner has come forward with this petition seeking to relax the conditions No.3, 4 and 5 of the order dated 24.11.2009 passed in Crl.M.P.No.3570 of 2009 by the Judicial Magistrate No.III, Vellore. 2. The petitioner is carrying on the business of auto financing under Hire Purchase Agreement Scheme. The respondents 2 and 3 had obtained loan as against the purchase of the JCB vehicle https://hcservices.ecourts.gov.in/hcservices/ bearing Registration No.PY01 K 7944 with chassis No. 37395 under Hire Purchase Agreement, hypothecating the vehicle and agreeing to pay the hire charges in equal monthly instalments towards the discharge of the loan. Since the respondents 2 and 3 were default in payment of loan amount, the petitioner has filed a suit in O.S.No.4 of 2009 before the learned Subordinate Judge, Gudiyatham for return of the vehicle and for recovery of the amount due and payable by the respondents 2 and 3. Thereafter, on the application filed by the petitioner, Advocate Commissioner was appointed to seize and hand over the vehicle to the petitioner. Pursuant to the warrant of seizure issued to the Advocate Commissioner, the JCB has been seized by the Advocate Commissioner. At that juncture, the respondents 2 and 3 waylaid and threatened the Advocate Commissioner with dire consequences and taken away forcefully the vehicle. In this regard the Advocate Commissioner has also lodged a complaint to the respondent police against the respondents 2 and 3. 3. A contempt petition and Crl.O.P. were also filed by the petitioner and this Court by a common order dated 12.2.2009 directed the respondent police to register a case and accordingly, the respondent police registered the FIR in Crime No.79 of 2009 and in Contempt Petition No.150 of 2009, the Division Bench of this Court had found the respondents 2 and 3 guilty of contempt of the Court and punished them. Thereafter, the petitioner filed Crl.O.P.16500 of 2009 for a direction to the first respondent police to complete the investigation in Crime No.79 of 2009 and this Court by order dated 1.9.2009 has passed an order directing the first respondent police to file a final report within a period of three months. Thereafter, the petitioner filed a petition in Crl.O.P.No.6606 of 2009 for a direction to the respondent police to seize and produce the JCB vehicle in the Judicial Magistrate No.III, Vellore and as per the directions issued by this Court the vehicle was seized and produced in the Court by the respondent police. Thereafter, the petitioner filed a petition in Crl.M.P.No.3570 of 2009 seeking for return of the vehicle and the respondents 2 and 3 had also filed a similar petition for return of the vehicle. The learned Judicial Magistrate passed an order directing return of the JCB vehicle to the petitioner on certain conditions in which the conditions No.3, 4 and 5 are as follows:- iii. The petitioner shall produce the property before this Hon'ble Court on the 1st working day of every month at 10.00 A.M. until further order. iv. The petitioner should not alter the colour or physical feature of the vehicle in any manner. v. The petitioner shall deposit the original R.C.Book of the said vehicle before this Court. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, the Criminal Revision filed by the 2nd respondent was also dismissed by this Court and thereafter, the vehicle was returned to the petitioner by order dated 5.1.2009 passed by the Judicial Magistrate. In the mean time, the suit in O.S.No.4 of 2009 was decreed on 31.8.2009 in favour of the petitioner. The petitioner has come forward with this petition to relax the conditions No.3, 4 and 5 of the order passed by the Judicial Magistrate No.III, Vellore. 4. Heard the learned counsel appearing for the petitioner, learned Government Advocate (Crl.side) appearing for the first respondent and the learned counsel appearing for the respondents 2 and 3 and also perused the materials placed on record. 5. It appears that at present the petitioner is in possession of the JCB vehicle. The contention of the learned counsel appearing for the petitioners is that though the petitioner is in possession of the vehicle they are not in a position either to hire or sell it to third party in view of the conditions imposed in the order dated 24.11.2009. 6. According to the learned counsel appearing for the respondents 2 and 3 they claims to be the owner of the JCB as they have made payment as per the decree in O.S.No.4 of 2009 and Full Satisfaction has also been recorded in the suit. It is needless to say that as per the Hire Purchase Agreement if the respondents are default in payment of the entire amount the petitioner is entitled to recover the same for which he is entitled to seize the vehicle. Any how, the conditions imposed by the learned Judicial Magistrate is reasonable one and it cannot be altered since the petitioner is only a financier and the owner of the vehicle is the second respondent. Therefore, the second respondent is directed to settle the amount to the petitioner so as to enable the petitioner to hand over the vehicle to him. Otherwise, at least he has to make payment of monthly hire charges till date with due interest as per the Hire Purchase Agreement. 7. At this juncture, the learned counsel for the petitioner has relied on a judgment in the case of Ashok Leyland Finance Ltd. vs. State of U.P. and another, reported in 2011 Crl.L.J. 2011. In that judgment in a similar circumstances the learned single Judge of the Allahabad High Court has held that:- "Keeping in view the above position of law, it is evident that when the order impugned was passed by the learned lower Court, the revisionist was the real owner of the vehicle in question and, therefore, by not releasing the same to the custody of the revisionist, the learned lower Court has committed an illegality. Therefore, the said order cannot be allowed to sustain and it should be quashed." https://hcservices.ecourts.gov.in/hcservices/ Ultimately, the revision filed by the financier has been allowed and the order impugned has been set aside and the lower Court was directed to take back the possession of the vehicle and release it to the custody of the financier with the assistance of the police if necessary. 8. Even though in the said judgment it has been held that the financier is entitled for the custody of the vehicle, I am of the view the said judgment is not applicable to the present facts of the case for the simple reason that in the Registration Certificate the name of the second respondent has been mentioned as the owner of the vehicle, that will never be changed. The petitioner is only a financier and his right is only to recover the amount financed by him in terms of the Hire Purchase Agreement and he has no right more than that. In case if the vehicle involves in an accident the financier is not having liability for payment of compensation and the second respondent being the owner of the vehicle alone is having liability for payment of compensation. Further, in case if the vehicle involved in transportation of any contraband, the financier will not be liable for punishment for the transportation of contraband, whereas the second respondent being the owner of the vehicle alone is liable for punishment for transportation of contraband. Therefore, the petitioner who is the financier cannot be termed as the owner of the vehicle. 9. For the foregoing reasons, I find no reason to relax the conditions imposed by the learned Judicial Magistrate No.III, Vellore in the order dated 24.11.2009 passed in Crl.M.P.No.3570 of 2009. This Criminal Original Petition is dismissed accordingly. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar gr. To 1. The Court of Judicial Magistrate No.III, Vellore 2. The Inspector of Police, Veppankuppam Police Station, Vellore District. 3. The Public Prosecutor, High Court, Madras. + 2 ccs to Mr.D. Rajagopal, Sr.73907, 74656 Crl.O.P.No.14661 of 2011 NM(CO) Eu 26.12.11 https://hcservices.ecourts.gov.in/hcservices/