IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 Crl.MC.No. 3830 of 2009() ------------------------- AGAINST THE ORDER DATED 09/11/2009 IN CMP 1901/2009 IN CMP.1916/2009 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER(S): PETITIONER: --------------------------------------------- VARGHESE.T.M, S/O.T.A.MANUAL, THOTTIYIL HOUSE, LISSE HOSPITAL ROAD, ERNAKULAM, KOCHI-18. BY ADV. MR.P.T.JOSE RESPONDENT(S): RESPONDENTS: ----------------------------------------------------- 1. SHAJI K.FASEELA, S/O.KUNTHALAM, AMABANAPPILLY HOUSE, NEDUNGANDAM. 2. STATE OF KERALA REP. BY C.I. OF POLICE, ERNAKULAM TOWN NORTH POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/12/2009 ALONG WITH CRMC NO. 3833 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. -------------------------------------------------------- Crl.M.C.NOS.3830 & 3833 OF 2009 ------------------------------------------------------- Dated 14th December 2009 O R D E R TATA Indica car No.KL-7/AP-4092 was seized in crime No.321/2008 of Ernakulam Town North Police station and produced before Judicial First Class Magistrate-I, Ernakulam. Petitioner in Crl.M.C.3833/2009 filed C.M.P.195(A)/2009 under Section 451 of Code of Criminal Procedure, for interim custody contending that he purchased vehicle as per sale agreement dated 19/11/2008 for valuable consideration from the R.C owner Sony Abraham and in such circumstances, he is entitled to interim custody of the vehicle. Petitioner in Crl.M.C.3830/2009 filed C.M.P.206A/2009 for interim custody of the vehicle contending that he is the R.C owner of the vehicle and he did not transfer the vehicle to Sony Abraham and R.C was transferred in the name of Sony Abraham without his knowledge by forging his signature and in such circumstances, he is entitled to get interim custody of the vehicle. Crmc 3830 & 3833/09 2 2. By Annexure-II order in Crl.M.C.3833/2009, (which is Annexure-A1 order in Crl.M.C.3830/2009) learned Magistrate granted interim custody of the vehicle to the petitioner in Crl.M.C.3833/2009 on conditions. Crl.M.C.3833/2009 is filed to lift the condition to produce solvency certificate of the sureties who were directed to execute a bond along with petitioner for Rs.4,00,000/-. Crl.M.C.3830/2009 is filed to quash the order granting interim custody to the petitioner in Crl.M.C.3833/2009 contending that the very claim raised by said petitioner is on the basis of a transfer from a person to whom the petitioner did not transfer the vehicle at all and in such circumstances, petitioner is the person who is entitled to get the interim custody of the vehicle. 3. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. Petitioner in Crl.M.C.3830/2009 was admittedly the original R.C owner. Though he is disputing the genuineness of the subsequent transfer, R.C was subsequently transferred in favour of Sony Abraham. Petitioner in Crl.M.C.3830/2009 is claiming Crmc 3830 & 3833/09 3 right under the sale agreement executed by said Sony Abraham in his favour. Petitioner in Crl.M.C.3830/2009 would have been entitled to get interim custody of the vehicle, if he continues to be the R.C owner. But R.C was subsequently changed and petitioner in Crl.M.C.3830/2009 does not continue to be the R.C owner. Question whether the said transfer in favour of Sony Abraham by the petitioner is genuine and valid or not cannot be decided in these petitions. If, ultimately it is found that the transfer in favour of Sony Abraham is not valid, it would be that petitioner would be the rightful owner of the vehicle. But till petitioner in Crl.M.C.3830/2009 obtained a decree from the civil court declaring that subsequent transfer is invalid or that he is the rightful owner of the vehicle, when the registration certificate shows that there was subsequent transfer, petitioner cannot be granted interim custody of the vehicle as sought for and to that extent the order passed by learned Magistrate does not warrant interference. 5. At the same time, if ultimately it is found that transfer of the vehicle in favour of Sony Crmc 3830 & 3833/09 4 Abraham was effected, on the forged signature of the petitioner, petitioner in Crl.M.C.3833/2009 who claims right by agreement for sale from the said Sony Abraham, cannot claim title to the vehicle and he cannot be the rightful owner. In that case, even though interim custody was granted to the petitioner, it is necessarily to be disturbed at a later stage. If that be so, even though as the petitioner is claiming to be the rightful owner of the vehicle and he is entitled to get interim custody of the vehicle, it can only be on sufficient conditions, so that if ultimately petitioner in Crl.M.C.3830/2009 is to succeed he shall not loose at least the value of the vehicle. In such circumstances, while confirming Annexure-II order, conditions Nos.1 and 2 are modified as follows. Petitioner in Crl.M.C.3833/2009 shall execute a bond for Rs.3,00,000/- with two solvent sureties for the like sum to the satisfaction of the learned Magistrate. In addition, the petitioner shall produce bank guarantee for Rs.2,00,000/- and undertake that he will not transfer the vehicle without permission of the learned Magistrate. It is made Crmc 3830 & 3833/09 5 clear that the sureties need not produce solvency certificates. It is also made clear that if the petitioner in Crl.M.C.3833/2009 is not complying with the conditions and fails to furnish the bank grantee within one month from today, learned Magistrate is to grant interim custody of the vehicle to the petitioner in Crl.M.C.3830/2009 on the same conditions. M.SASIDHARAN NAMBIAR, JUDGE. uj.