IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 23RD DECEMBER 2011 / 2ND POUSHA 1933 Crl.MC.No. 2402 of 2011(A) ---------------------------------- CMP.1246/2011 of JUDL. MAGISTRATE OF FIRST CLASS COURT - I, IDUKKI .............................................. PETITIONER(S): DEFACTO COMPLAINANT ------------------------------------------------------------- JOSHIN SEBASTIAN @ JOSHI, PORIMATTATHIL HOUSE, CHELACHUVADU KARA, KANJIKUZHY VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENT(S): ACCUSED/ACCUSED ------------------------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (SUB INSPECTOR OF POLICE, KANJIKUZHY POLICE STATION, IDUKKI DISTRICT) 2. SINU, S/O.SIVAN, KALAMPITTU KUDIYIL HOUSE, ADIMALY KARA, MANNAMKANDAM VILLAGE, ADIMALI, IDUKKI. 685 001. * ADDL. R3 IMPLEADED 3. MUTHOOT CAPITAL SERVICES LTD. MUTHOOT TOWERS M.G. ROAD ERNAKULAM - 682 032 REPRESENTED BY ITS MANAGER * ADDL. R3 IMPLEADED AS PER THE ORDER DATED 19.10.2011 IN CRL.MA 6872/11, IN CRL. MC - 2402/11 R1 BY PP SRI. RAJESH VIJAYAN R2 BY ADV. SRI. S. JIJI R3 BY ADV. SRI. MILLU DANDAPANI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/12/2011, ALONG WITH CRL.MC NO. 2455 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DCS Crl.MC.No. 2402 of 2011(A) ANNEXURE PETITIONER'S ANNEXURE:- ANNEXURE I:- REGISTRATION CERTIFICATE OF THE VEHICLE NO. KL-6E-2657 ANNEXURE II:- COPY OF THE AGREEMENT DATED 22.06.2010 ANNEXURE III:- COPY OF THE NOTICE ISSUED BY THE FINANCIER DATED 16.07.2011 ANNEXURE IV:- COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 06.07.2011 BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS, IDUKKI ANNEXURE V:- COPY OF THE PETITION SUBMITTED BY THE PETITIONER DATED 14.07.2011 ANNEXURE VI:- COPY OF THE PETITION SUBMITTED BY THE SECOND RESPONDENT DATED 13.07.2011 ANNEXURE VII:- COPY OF THE PETITION SUBMITTED BY THE PETITIONER DATED 26.07.2011 ANNEXURE VIII:- COPY OF THE ORDER IN CMP NO. 1246/11 DATED 28.07.2011 RESPONDENT'S ANNEXURE:- NIL /TRUE COPY/ P.A. TO JUDGE DCS N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. Nos.2402 & 2455 of 2011 ----------------------------------------------- Dated this the 23rd day of December 2011 O R D E R Petitioner in these two cases is the RC owner of an autorickshaw bearing No.KL-6E-2657. Admittedly, the autorickshaw was sold to the 2nd respondent. The vehicle was subject to hypothecation with R3. As per the agreement, R2 was to pay the instalments which fall due subsequent to the sale. According to the petitioner, 2nd respondent defaulted to pay the instalments. Hence, notice was issued by R3 to the petitioner herein requiring him to pay the instalments. Thereupon he filed a complaint before the learned Magistrate. Based on a petition filed by him, the autorickshaw was seized by the police. The claims were raised by RC owner (petitioner herein) as well as by R2, the person from whose custody the autorickshaw was seized. The learned Magistrate, after considering the rival Crl.M.C. Nos.2402 & 2455 of 2011 -: 2 :- contentions ordered interim release of the vehicle to R2 from whose custody the autorickshaw was seized. 2. Learned counsel for the petitioner submits that if the autorickshaw is released to R2, then the petitioner will lose the property and he will also be liable to pay the future instalments to R3. The learned counsel for R2 submits that only a notice was issued by R3 and coming to know the same, he (R2) remitted the instalments. The amount due to R3 was to be remitted in 36 instalments. Now, only seven instalments were remitted, the learned counsel for the petitioner submits. Whatever that be, the learned counsel for R2 on getting instructions from the party submits that R2 will regularly remit the instalment without fail and that the petitioner, the RC owner will not be put to difficulty by committing default of the same. Learned counsel for R2 submits that because the autorickshaw itself is his means of livelihood, the order of interim release passed by the court below may not be disturbed. Crl.M.C. Nos.2402 & 2455 of 2011 -: 3 :- 3. In view of the submissions and undertakings given by R2, that the future instalments would be regularly remitted by R2, the interim order of release passed by the court below is not liable to be varied or modified. If R3 is agreeable to enter into a fresh agreement between R2 and R3 (for which RC of the vehicle is to be given by the petitioner to R3 for the time being), the anxiety/grievance of the petitioner can be redressed. After the execution of the said agreement, the transactions can be had only between R2 and R3. The instalments shall be remitted by R2 properly and regularly. These Crl.M.Cs are disposed of as stated above. N.K.BALAKRISHNAN, JUDGE. Jvt