IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 Crl.MC.No. 5062 of 2010() -------------------------------------- CMP.NO. 5157/2010 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... PETITIONER(S): PETITIONER ------------------------------------------- P.UNNIKRISHNAN, S/O. LATE SANKARANKUTTY NAIR, 48/1550, THATTIL COTTAGE, ELAMAKKARA, COCHIN. BY ADV. SRI.BABU S. NAIR SRI.P.A.RAJESH RESPONDENT(S): RESPONDENTS -------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOCHI KASBA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. SUNIL BABU, S/O. K.M.BHASKARAN, KUNNEL HOUSE, KUMBALANGI SOUTH P.O., ERNAKULAM DISTRICT, PIN-682 008. 3. THE STATION HOUSE OFFICER, PALLURUTHY POLICE STATION, ERNAKULAM DISTRICT, PIN-682 006. R1 & R3 BY PUBLIC PROSECUTOR SRI.V.MANU R2 BY ADV. SRI.K.V.SABU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts CRMC.NO.5062/2010 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A: COPY OF THE ORDER DATED 3/12/2010 OF THE J.F.C.M.-II,KOCHI IN CMP.NO.5157/2010. ANNEX.B: COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE BEARING NO.KL-11AB/2020. ANNEX.C: COPY OF THE TAX TOKEN ISSUED BY THE MOTOR VEHICLE DEPARTMENT DATED 23/4/2008. ANNEX.D: COPY OF THE INSURANCE POLICY OF THE VEHICLE BEARING REGISTRATION NO.KL-11AB/2020 ISSUED BY THE BHARATI GENERAL INSURANCE. ANNEX.E: COPY OF THE STATEMENT OF ACCOUNTS ISSUED BY THE I.C.I.C.I BANK, ASHOKAPURAM,CALICUT, SHOWING THE LOAN PARTICULARS OF THE VEHICLE. ANNEX.F: COPY OF THE INVOICE OF THE VEHICLE, ISSUED BY AMANA TOYATA DATED 15/4/2008. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No. 5062 of 2010 ==================================== Dated this the 22nd day of June, 2011 O R D E R Petitioner challenged the common order passed by the learned Judicial First Class Magistrate-II, on CM.P. Nos.3943 of 2010 and 5157 of 2010 in Crime No.1191 of 2010 of Palluruthy Police Station for offences punishable under Sections 380, 451, 506(ii) and 120B of the Indian Penal Code. That case was registered on a private complaint preferred by the second respondent which was forwarded to the police for investigation. According to the second respondent the Innova Car which is the subject matter of the complaint above referred and of which petitioner is the registered owner was given to the second respondent as security for a loan availed by the petitioner and his daughter from the second respondent. While the second respondent was in possession of the vehicle, petitioner and others trespassed into the premises of the second respondent on 21.07.2010 and forcibly took away the Car with the help of the spare key and thus petitioner committed offences aforesaid. The police is said to have taken possession of the vehicle from the custody of petitioner. CRL.M.C. No.5062 -: 2 :- According to the petitioner, second respondent was his close friend, he used to hand over the vehicle to the second respondent occasionally for use of the latter. The second respondent on one such occasion offered to take policy for the vehicle. The second respondent obtained signed blank papers from petitioner while petitioner availed a loan of Rs.50,000/- from the second respondent. But second respondent did not return the vehicle after use. It is also the contention of petitioner that making use of signed blank papers second respondent forged documents and based on those documents the complaint was filed. Learned Magistrate considered the respective claims for interim custody of the vehicle, found in favour of second respondent and directed that the vehicle be entrusted to the second respondent by way of interim custody until further orders. That order is under challenge. I have heard learned counsel for petitioner, second respondent and the learned Public Prosecutor. 2. Counsel on both sides stuck to their respective contentions and claims for interim custody of the vehicle. Learned counsel for petitioner contended that documents relied on by the second respondent are fabricated, while counsel for second respondent asserted that documents are not forged and that the vehicle was given to the second respondent as security for CRL.M.C. No.5062 -: 3 :- repayment of the amount borrowed by petitioner and his daughter. 3. I am not going in to the question whether the allegations and counter allegations are true or not in this proceeding at this stage. It is for the trial court to decide the issue. It is not disputed that registered owner of the vehicle is the petitioner. Even as per the version of second respondent, the vehicle was given to him only as security for the repayment of the amount (allegedly) borrowed from him. Having heard both sides and considering the concerns expressed by both sides I am inclined to think that interim custody of the vehicle can be given to the petitioner who is the registered owner of the vehicle. At the same time, interest of the second respondent has to be safe guarded. This could be done by directing petitioner to produce Bank Guarantee for Rs.2 lakhs which second respondent claimed to be the amount borrowed. In case ultimately final report is submitted by the police as per contentions raised by second respondent and learned Magistrate finds the said allegation to be true and decides to award compensation to the second respondent such amount shall be realised from the Bank Guarantee that may be produced by petitioner before learned Magistrate. Criminal Miscellaneous Case is disposed of in the following lines: CRL.M.C. No.5062 -: 4 :- Annexure-A, order dated December 03, 2010 on C.M.P. Nos.3943 of 2010 and 5157 of 2010 of the court of learned Judicial First Class Magistrate-II, Kochi (in Crime No.1191 of 2010 of Palluruthy Police Station) is quashed. C.M.P. No.5157 of 2010 is allowed. Interim custody of the vehicle shall be given to the petitioner subject to the following conditions. (i) Petitioner shall produce Bank Guarantee for Rs.2 lakhs (Rupees two lakhs only) before the learned Magistrate for appropriate period as the learned Magistrate may fix and renewable as learned Magistrate directs and execute bond for similar amount undertaking to produce the vehicle as and when directed by the learned Magistrate. (ii) Petitioner shall not during the said period transfer ownership or possession of the vehicle or encumber the same. (iii) If learned Magistrate ultimately upholds the plea of second respondent and decides to award compensation to the second CRL.M.C. No.5062 -: 5 :- respondent, such amount shall be realised from the Bank Guarantee produced by petitioner. (iv) In case petitioner and others are not found guilty, needless to say the Bank Guarantee shall be returned to the petitioner. (v) This order will not stand in the way of second respondent enforcing his right if any (as pleaded by him) before the civil court. (vi) On production of the Bank Guarantee and execution of bond learned Magistrate shall direct the second respondent to produce the vehicle with records (if any) before the learned Magistrate within a time to be specified and on such production, the same shall be released to the petitioner. (vii) Petitioner shall produce Bank Guarantee, vehicular documents and execute the bond aforesaid within one month from this day failing which this petition will stand dismissed in confirmation of the order passed by the learned Magistrate. CRL.M.C. No.5062 -: 6 :- It is made clear that this Court has not expressed any opinion regarding the merits of the claim made by either parties. THOMAS P. JOSEPH, JUDGE. vsv