IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 Crl.MC.No. 3035 of 2011() ------------------------- AGAINST THE ORDER DTD.17.8.2011 IN CMP.664/2011 IN CRIME No.364/2010 of JUDL.MAGISTRATE OF FIRST CLASS, MUVATTUPUZHA .................... PETITIONER/CLAIM PETITIONER :- --------------------------------------------------- SHIHABUDEEN.A., S/O.ABDUBAKKER HAJI, AGED 29, KULANJI THEKKETHIL HOUSE, KADATHOOR, KULASEKHARAPURAM.P.O., KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADV. SRI.K.R.SUNIL RESPONDENTS/RESPONDENTS :- ------------------------------------------------ 1. THE SUB INSPECTOR OF PLOLICE, KOOTHATTUKULAM POLICE STATION, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031. 2. M/S MAGMA FINCORP LTD., JAIN TOWER, 1ST FLOOR, N H BYE PASS ROAD, POWER HOUSE JUNCTION COCHIN – 682 025. 3. SHEELA MATHEW, W/O.MATHEW, KOCHUPARACKAL VEEDU, KOOTHATTUKULAM – 682 835. ADV. SMT.K.V.RESHMI FOR R3 SRI.PHILIP T.VARGHESE FOR R-2 SRI.THOMAS T.VARGHESE FOR R-2 SMT.ACHU SUBHA ABRAHAM FOR R-2 SMT.T.M.BINITHA FOR R-2 SMT.AFSANA ASHRAF FOR R-2 PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt Crl.M.C.No. 3035 of 2011 APPENDIX Petitioner's Exhibits :- Annexure A1 :- Copy of the objection filed by the petitioner in CMP No.663/2011 in Crime No.364/2010 of Koothattukulam Police Station. Annexure A2 :- Copy of objection filed by the 2nd respondent. Annexure A3 :- Copy of the order dated 17/8/2011 in CMP No.664/2011 in Crime No.364/2010 of the Koothattukulam Police Station. Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3035 of 2011 ----------------------------------- Dated this the 19th day of October 2011 O R D E R The 3rd respondent, as per a Hire Purchase Agreement purchased a vehicle which was the subject matter of the Hire Purchase Agreement with 2nd respondent. She was to pay the instalments as per the agreement. It is alleged that she committed default in payment of the instalments. Huge amount was stated to be in arrears. The learned counsel for the 2nd respondent submits that arbitration proceedings were initiated at the instance of 2nd respondent and after giving notice to the 3rd respondent and after the enquiry an arbitration award was passed, which entitles the 2nd respondent to re-possess the vehicle, sell the same and adjust the sale price towards the hire amount. It is stated by the learned counsel for the 2nd respondent that the amount payable as per the arbitration award was paid by Crl.M.C. No.3035 of 2011 -: 2 :- the 3rd respondent. Subsequently, the petitioner purchased the vehicle from the 2nd respondent. According to the learned counsel for the petitioner and the 2nd respondent, a belated complaint was filed by the 3rd respondent to get over the arbitration award and a false allegation was made stating that the vehicle was forcibly taken possession by the Financier (R2). 2. The learned counsel for the 2nd respondent would submit that 9 documents were produced by him along with the objection filed by him in CMP No.663/2011, which is the application filed by the 3rd respondent. According to the learned counsel, the learned Magistrate did not consider any of those documents. The learned counsel would further submit that those documents would make it clear that re- possession of the vehicle was had only pursuant to the arbitration award and as such it cannot be termed as “forcibly taken possession” as alleged by the 3rd respondent. 3. The learned counsel for the petitioner would Crl.M.C. No.3035 of 2011 -: 3 :- submit that apart from directing the 3rd respondent to execute a bond, no other condition was imposed. If the vehicle is released to the 3rd respondent, it would enable her to keep possession of the vehicle without paying any amount to the Financier. According to the petitioner, he has purchased the vehicle paying the full amount due to the financier and as such he is entitled to be in possession of the vehicle. 4. Since the order of release was passed without considering all these aspects, it is proper that this matter is remanded to the learned Magistrate to consider the objections raised by the petitioner and the 2nd respondent especially based on the document produced by them and the contention raised by R3. The learned counsel for the 2nd respondent would submit that he has also cited three Supreme Court decisions and also the decision of the High Court to fortify his submission with regard to the 2nd respondent's entitlement to get interim custody of the Crl.M.C. No.3035 of 2011 -: 4 :- vehicle. Therefore, the learned Magistrate will consider the objections, documents and the decisions on the point and will pass appropriate orders within three weeks from the date of appearance. If or any reason, the learned Magistrate finds that the vehicle is to be released to the 3rd respondent, then the fact that major portion of the amount was due from her to the financier and so condition may have to be made either by getting cash security or by furnishing bank guarantee or by any another mode. Parties will appear before the learned Magistrate on 8.11.2011. N.K.BALAKRISHNAN, JUDGE. Jvt