IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 WP(C).No. 19876 of 2010(Q) -------------------------- CMP.5361/2009 & 1682/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT,KUNNAMANGALAM CRIME NO.423/2009 OF KUNNAMANGALAM POLICESTATION .................... PETITIONER(S): --------------- T.P.SIDHIQUE, AGED 36 YEARS, S/O. ABOOBACKER HAJI, THALAPOYIL HOUSE, KODUVALLY SOUTH, KODUVALLY PO, KOZHIKODE DISTRICT REPRESENTED BY POWER OF ATTORNEY HOLDER T.P.MUHAMMED, S/O.KHADER, AGED 57 YEARS,THALAPOYIL HOUSE, KODUVALLY SOUTH, KODUVALLY,PO,KOZHIKODE DIO BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ICICI BANK REPRESENTED BY ITS AUTHORISED SIGNATORY, 1ST FLOOR, SHAJEER COMPLEX, KANNUR ROAD, KOZHIKODE. 3. SREEJITH P.S, COLLECTION MANAGER, ICICI BANK 1ST FLOOR, SHAJEER COMPLEX, KANNUR ROAD, KOZHIKODE. 4. SUNIL, COLLECTION MANAGER, ICICI BANK 1ST FLOOR, SHAJEER COMPLEX, KANNUR ROAD, KOZHIKODE. ADV. SRI.KKM.SHERIF FOR R2 SRI.LAL K.JOSEPH FOR R2 SRI.A.A.ZIYAD RAHMAN FOR R2 PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C). No.19876 of 2010 -------------------------------------- Dated this the 3rd day of February, 2011. JUDGMENT This petition is filed by the defacto complainant who is power of attorney holder of the registered owner of a vehicle involved in Crime No.423 of 2009 of Kunnamangalam Police Station and petitioner in C.M.P.No.4029 of 2009 of the court of learned Judicial First Class Magistrate, Kunnamangalam. According to the petitioner, the registered owner purchased the said vehicle availing financial assistance from respondent No.2, (ICICI Bank) but could not repay the amount. Thereon respondent No.2 took possession of the vehicle and sold it without his knowledge. Petitioner filed a private complaint before the learned Magistrate which was forwarded to the Police for investigation under Section 156(3) of the Code of Criminal Procedure. Kunnamangalam Police registered Crime No.423 of 2009 alleging offences punishable under Sections 406, 379 and 420 read with Section 34 of the Indian Penal Code. While investigation was proceeding petitioner filed CMP No.1682 of 2010 before the learned Magistrate to direct the Investigating Officer to arrest the culprit and C.M.P.No.5361 of 2009 to direct the Investigating Officer to seize the vehicle. Investigating Officer submitted an interim report (Annexure-R1(b)) referring to the investigation so far conducted. Learned Magistrate dismissed C.M.P.No.1682 of 2010 observing that it is for the Investigating Officer to decide as to whether the culprits are to be arrested or not and that the court cannot interfere in that matter. C.M.P.No.5361 of 2009 was dismissed for default. Challenge in this proceeding is to the order on WP(C) No.19876/2010 2 C.M.P.No.5361 of 2009. Learned counsel contended that the person who executed the power of attorney continues to be the registered owner of the vehicle and hence the offenders are liable to be proceeded against. In such circumstances it is appropriate that the Investigating Officer seized the vehicle. Learned counsel for respondent No.2 submits that the vehicle was seized as early as on 25.08.2007 about which a notice was sent to the registered owner but the complaint was filed only in the year 2009. I have heard learned Public Prosecutor also. 2. It is not disputed that the vehicle was hypothecated to respondent No.2 for the loan availed by the registered owner and that there was default in payment of the amount. It is also not disputed that the vehicle was repossessed by respondent No.2 on 25.08.2007 in exercise of the power conferred on it in terms of the hypothecation agreement. The Investigating Officer in Annexure-R1(b), report has stated that respondent No.2 had given notice of the seizure of the vehicle to the registered owner on 26.08.2007 intimating him that in case arrears is not cleared the vehicle will be sold. That notice was served on the registered owner on 18.09.2007 but, there was no response. It is stated that the vehicle was sold in auction on 12.12.2007. Petitioner contends that the auction was without notice to the registered owner. Fact remained that the vehicle was repossessed by respondent No.2 and notice WP(C) No.19876/2010 3 was issued to the registered owner but the complaint was filed after two years thereafter. In the meantime, petitioner filed W.P.(C) No.588 of 2008 in this Court. But the prayer in that petition was to direct the registering authority not to register the vehicle in the name of the purchaser or respondent No.2 without notice him. True it was directed in the judgment dated January 7, 2008 that the registering authority shall consider the grievance of petitioner before passing any order under Section 51(5) of the Motor Vehicles Act in case any application for transfer is made by the purchaser. 3. Admittedly the vehicle was repossessed by respondent No.2 and it has been sold to another in an auction. It is for the Investigating Agency to find out what if any is the offence committed. Presently the vehicle is said to be in the custody of one Prasanth. It is part of the investigation whether the vehicle has to be seized or not. That is a matter which the Investigating Officer has to consider having regard to the facts and circumstances of the case. It is not necessary that the court must issue any direction whether the vehicle is to be seized or not. In that view, I do not find reason to issue any such direction. But the Investigating Officer has to look into whether any offence is committed and what all steps, if so, is to be taken in the matter. I make it clear that in the light of WP(C) No.19876/2010 4 the decision in Sakiri Vasu v. State of U.P. (2008(1) KLT 724) it is open to the petitioner to approach the learned Magistrate if any further direction in the matter of investigation as provided under law is required. Petition is closed with the above observation. THOMAS P.JOSEPH, Judge. cks