IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 Crl.MC.No. 1459 of 2007() ------------------------- CRMP.131,576/2007 of JUDL. MAGISTRATE OF FIRST CLASS, CHANGANACHERRY .................... PETITIONER: ------------ HDFC BANK, ERNAKULAM BRANCH, MATHER SQUARE, OPPOSITE ERNAKULAM NORTH RAILWAY STATION, ERNAKULAM REPRESENTED BY POWER OF ATTORNEY HOLDER SUMITH PRASAD. BY ADV. SRI.SOORAJ T.ELENJICKAL SRI.M.A.JOSEPH MANAVALAN RESPONDENTS: ------------- 1. STATE OF KERALA THROUGH SUB INSPECTOR OF POLICE, CHANGANACHERRY POLICE STATION REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. J. NEELAKANTAN NAIR, S/O.JANARDHANAN NAIR, DEVI NIVAS, I.C.29/755, PALKULANGARA, TRIVANDRUM. 3. THRESSIAMMA VARGHESE, GATEWAY INTERNATIONAL, MAYUR BUSINESS CENTRE, KOCHI. BY ADV. SRI.S.RAJEEV PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15-01-2008 THE COURT ON 15/01/2008 PASSED THE FOLLOWING: V. RAMKUMAR, J ...................................... Crl. M.C. No. 1459 of 2007 ...................................... Dated, 15-01-2008 ORDER The petitioner namely H.D.F.C. Bank Limited, Ernakulam North Branch, challenges Annexure – II common order dated, 17-4-2007 passed by the Judl. First Class Magistrate, Changanacherry granting interim custody of a Ford Icon Car to the 2nd respondent herein who is the de facto complainant in Crime No. 459 of 2006 of Changanacheery Police Station in preference to the claim of the petitioner who is the financier in respect of the Car. 2. I heard Adv. Sri. Sooraj Elanjickal, the learned counsel for the petitioner and Adv. Sri. S.Rajeev, the learned counsel appearing for the 2nd respondent. Assailing the impugned order, the learned counsel for the petitioner made the following submissions:- The petitioner-bank had advanced a sum of Rs. 6,50,000/- to the 3rd respondent herein, namely Thresiamma Varghese). (She has been subsequently deleted from the party array on the request of the petitioner). The said amount was advanced on Crl.M.C. No. 1459 of 2007 -:2:- 25-06-2004 for purchasing a Ford Icon Car. It was registered as KL-7- AS - 501 at the Regional Transport Office, Ernakulam. The said (Thresiamma Varghese) committed default in making the payment of instalment and had absconded with the Car. On a complaint by the 2nd respondent herein (Neelakantan Nair who is the de facto complainant) the Changanassery Police registered the above crime for offences punishable under Sections 456, 468, 471 and 420 I.P.C. In the meanwhile, the registration of the Car had been changed to T.N. 29 Y9126. The 2nd respondent herein claims to have purchased the car from the accused namely Shaji in exchange of a Maruti Esteem Car. He cannot claim to be a bona fide purchaser since no sensible person will exchange a Maruti Esteem Car with a brand new Ford Icon Car. So, the interim custody given to the 2nd respondent who is the beneficiary of a crime committed in respect of the car cannot be sustained. 3. I am afraid that I cannot agree with the above submissions. The bank might have advanced Rs. 6,50,000/- to the 3rd respondent (Thresiamma Varghese) on 25-6-2004. But, then, going by the contentions of the bank, right from day one itself Thresiamma Varghese was a defaulter and she is alleged Crl.M.C. No. 1459 of 2007 -:3:- to have absconded with the Car. The bank does not appear to have initiated any proceedings against her so far either for the realisation of the defaulted instlament or for recovery of the Car. No complaint also appears to have been lodged by the bank before the police for recovery of the car or alleging the commission of an offence punishable under Sec. 420 I.P.C. against Thresiamma Varghese who was got deleted from the party array by the Bank itself. No doubt, Shaji, the accused who came into possession of the car might have secured possession of the same through unlawful means. But the 2nd respondent alleged to have purchased the car from Shaji in exchange of a Maruti Esteem Car wroth Rs. 5,00,000 and paying an addl. amount of Rs. 50,000/-. As matters now stand there is nothing to show that he is not a bona fide purchaser of the car. All that apart, the interim custody of the vehicle has been given to the 2nd respondent on adequate conditions which safeguard the interest of the bank as well. No doubt, the bond amount fixed by the Magistrate was Rs. 5,00,000/- which shall stand enhanced to Rs. 6,50,000/-. Over and above, the conditions imposed by the Magisttrate, it is further directed that the release of the vehicle shall be subject to a further condition that the 2nd respondent Crl.M.C. No. 1459 of 2007 -:4:- shall not permit the vehicle to be used for any illicit or illegal propose. The impugned order giving interim custody of the vehicle to the 2nd respondent is upheld and the order refusing the interim custody to the petitioner is also upheld. This petition is disposed of as above. V. Ramkumar, Judge. ani