IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 Crl.MC.No. 2011 of 2009() ------------------------- CMP.930/09 & 988/09 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,KANNUR .................... PETITIONER(S): ------------------------- IBRAHIM.T.P, AGED 42 YEARS, S/O. HASSAN, THALAPPARA HOUSE, KOLICHAL, PANATHADY POST, VIA RAJAPURAM, KASARAGOD. BY ADVS. MR.SAJEEV KUMAR K.GOPAL, SMT.AMBIKA RADHAKRISHNAN. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHRIRAM TRANSPORT FINANCE CO. LTD, HASSAN ARCADE, 2ND FLOOR, OPP. R.T. OFFICE, THAVAKKARA. R1 BY PUBLIC PROSECUTOR MR. AMJAD ALI R2 BY ADV. MR.RAJESH NAMBIAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2011 OF 2009 -------------------------- ORDER Petitioner is the registered owner of the bus KL-13/K 9772 and second respondent is the financier. As per hire purchase agreement, petitioner has to pay monthly instalments of Rs.19,450/- for 48 months, Rs.17,600/- for 11 months and Rs.17,125/- for one month, making a total of Rs.11,44,325/-. As on 5.11.2008, petitioner paid Rs.10,20,275/-. Second respondent sent a notice on 5.11.2008 demanding an amount of Rs.93,926/-, as the amount due as on that date. As per the schedule of payments, last instalment was on 1.3.2009. When petitioner failed to pay the balance due, a private complaint was filed before Judicial First Class Magistrate's Court-I, Kannur alleging that petitioner committed an offence under Section 420 of Indian Penal Code and other offences. The hypothecated bus was seized and CRMC 2011/09 2 produced before the Magistrate. Petitioner filed C.M.P.No.930/2009 and second respondent filed C.M.P.No.988/2009 for interim custody of the vehicle. Under Annexure-6 order, C.M.P.No.930/2009 was dismissed and C.M.P. No.988/2009 was allowed. This petition is filed to quash that order and to get interim custody of the vehicle. 2. Learned counsel appearing for the petitioner and second respondent were heard. 3. Under Annexure-6 order, learned Magistrate did not grant interim custody to the registered owner for the reason that he had approached Consumer Disputes Redressal Forum, Kasargod and it had directed the petitioner to deposit Rs.1,63,851/- by way of Demand Draft on or before 31.12.2008 and petitioner did not deposit that amount and therefore, he is not entitled to get interim custody of the vehicle. Learned counsel appearing for the petitioner pointed out that when, admittedly, petitioner had paid more than Rupees Ten lakhs to the second respondent and when, even CRMC 2011/09 3 according to the second respondent, only less than Rupees Four lakhs is the balance amount payable, there is no justification in granting interim custody of the vehicle to the second respondent and petitioner is prepared to deposit the amount as directed by consumer Disputes Redressal Forum, Kasargod and therefore, interim custody be granted to the petitioner. 4. Learned counsel appearing for the second respondent submitted that though petitioner paid more than Rupees Ten lakhs towards hire purchase dues, he did not pay the amount on the due dates and as a result, interest and penalty as provided under the agreement are payable and if so, the balance amount payable by the petitioner is more than Rs.3,26,000/- and in such circumstances, Annexure-6 order does not warrant interference. Learned counsel further submitted that even if interim custody is to be granted to the petitioner, he should be directed to deposit the entire balance amount due. CRMC 2011/09 4 5. When petitioner is the registered owner of the vehicle and admittedly, out of the hire purchase dues, more than Rupees Ten lakhs was paid and when, even according to the second respondent, including interest for the defaulted amount, the balance amount payable is less than Rupees Four lakhs, learned Magistrate was not justified in granting interim custody of the vehicle to the second respondent for the sole reason that petitioner failed to deposit the amount as directed by Consumer Disputes Redressal Forum, Kasargod. In such circumstances, if petitioner deposits the amount as directed by Consumer Disputes Redressal Forum, Kasargod with interest, petitioner should be granted interim custody of the vehicle. Petition is disposed directing Judicial First Class Magistrate-I, Kannur to grant interim custody of the vehicle to the petitioner on his depositing Rupees Two lakhs within one month from today and on executing a bond for Rupees Five lakhs with two solvent sureties each for the like sum to the CRMC 2011/09 5 satisfaction of the learned Magistrate, undertaking to produce the vehicle as and when required in supersession of Annexure-6 order. If the amount is not deposited, Annexure-6 order will prevail. If Annexure-6 order is superseded and interim custody of the vehicle is granted to the petitioner/ registered owner, Magistrate to cancel the bond executed by the second respondent and second respondent is entitled to receive the amount so deposited from court. 23rd July, 2009 (M.Sasidharan Nambiar, Judge) tkv