IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 Crl.MC.No. 2754 of 2008() ------------------------- CMP.1600/2008 of CHIEF JUDICIAL MAGISTRATE, KALPETTA .................... PETITIONER: ------------ VARGHESE JOSEPH, S/O. JOSEPH, MANJERIYIL VEEDU, RESIDNG AT PUTHANKUNNU, NENMENI AMSOM DESOM, SULTHANBATHERY TALUK. BY ADV. SRI.P.R.VENKETESH SRIR.AZAD BABU RESPONDENTS: ------------- 1. SREE RAM INVESTMENTS LTD., MANAGER, KEERTHI TOWERS, SULTHANBATHERY AMSOM DESOM AND TALUK. 2. STATE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB SRI.RAJESH NAMBIAR FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.2754 of 2008 ---------------------------------------- Dated this the 16th day of September 2008 O R D E R The petitioner complains that the impugned order under which the petition filed by him under Section 451 Cr.P.C allowed subject to conditions and the petition filed by the first respondent under Section 451 Cr.P.C was dismissed is unjust and unfair and prays that condition No.3 imposed on the petitioner may be set aside. 2. Condition No.3 which alone is assailed before me in the course of arguments reads thus: “3. The accused shall continue to pay Rs.50,000/- each every month from August onwards until fresh arrangements are arrived at between the parties.” 3. A principal amount of Rs.7.50 lakhs was advanced by the first respondent to the petitioner on the security of a vehicle. An agreement was entered into and amounts were liable to be repaid. Alleging that criminal offences were committed by the petitioner in respect of that transaction, the first respondent filed a complaint. The vehicle was seized and produced before the learned Magistrate. The petitioner as well as the first Crl.M.C.No.2754/08 2 respondent staked claims for return of the vehicle. The learned Magistrate considered the claims of the rival contestants. The petitioner's counsel offered in the course of proceedings that an amount of Rs.50,000/- can be paid straight away. A further amount of Rs.50,000/- shall be paid by 25/7/2008 and thereafter an amount of Rs.50,000/- shall be paid every month. The learned Magistrate appears to have been impressed by the said offer. The learned Magistrate accepted the same and directed release of the vehicle subject to conditions. The amount of Rs.50,000/- had been paid straight away. An amount of Rs.50,000/- payable on 25/7/2008 was also paid. It is later that the petitioner has come to this court to assail the said condition No.3. 4. The learned counsel for the respondent stoutly opposes the application. The petitioner cannot approbate and reprobate, submits the learned counsel for the respondent. He having induced the court below to pass the order directing release of the vehicle to him and having thereby induced the first respondent not to challenge the order cannot now be permitted to turn round and assail the condition which was stipulated by the court on the basis of the agreement between the parties. In Crl.M.C.No.2754/08 3 these circumstances, it is submitted that it would be a traversity of justice to permit the petitioner to wriggle out of the obligations of condition No.3 which was stipulated by the court on the basis of the agreement by the petitioner also. It is prayed that this petition may, in these circumstances, be dismissed. 5. The learned counsel for the petitioner, on the contrary, submits that the counsel had made the concession without any specific authority and at any rate, that condition, even if it is accepted by the counsel, is not fair and just. The learned counsel for the petitioner further submits that no time limit is prescribed and the petitioner will be compelled to keep on paying Rs.50,000/- until fresh arrangements are arrived at between the parties. No such fresh arrangement appears to be in sight at all. In these circumstances, the impugned condition, if permitted to remain, will oblige the petitioner in perpetuity to pay an amount of Rs.50,000/- every month. The said condition may in these circumstances be set aside or atleast modified, submits the learned counsel for the petitioner. 6. At the Bar, it is conceded that the principal amount of loan was Rs.7,50,000/-. There is also agreement that an amount Crl.M.C.No.2754/08 4 of Rs.1,82,000/- has by now been paid. There is a dispute as to whether a further amount of about Rs.60,000/- paid is towards the principal liability or towards insurance. Be that as it may, an amount of Rs.5,68,000/- (Rs.7.50 lakhs - Rs.1.82 lakhs) appears to be in arrears without any serious dispute. Of course, the first respondent contends that in addition to the principal amount, there are other liabilities also to be discharged. 7. Taking all the circumstances into account, I am satisfied that this Crl.M.C can be allowed in part. The petitioner shall pay Rs.50,000/- every month for a further period of eleven months. The first instalment of Rs.50,000/- is to be paid on or before 30/09/2008. Thereafter instalments shall be paid on or before the last day of every English calender month. If there be violation of the conditions, the learned Magistrate shall take necessary further steps under Section 446 Cr.P.C. 8. This petition is accordingly allowed to the above extent. (R.BASANT, JUDGE) jsr Crl.M.C.No.2754/08 5 Crl.M.C.No.2754/08 6 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008