IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 Crl.MC.No. 4339 of 2010() ------------------------------ CMP.3391/2010 of CONTONEMENT POLICE STATION CRIME NO. 601/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - III, THIRUVANANTHAPURAM .................... PETITIONER(S): ------------------- RAJESH, S/O.THANKAPPAN, THAPPU MUDAMPIL VEEDU, TC 31/1288, CHAKKA JUNCTION, PETTAH VILLAGE, THIRUVANANTHAPURAM BY ADV. SRI.G.SUDHEER RESPONDENT(S): -------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. * ADDL. R2 IMPLEADED 2. STATE BANK OF INDIA, SAR BRANCH, THIRUVANANTHAPURAM. * ADDL. R2 IMPLEADED AS PER ORDER DATED 21/12/2010 IN CRMA 8016/2010 IN CRL.MC.No.4339/2010. R1 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR R2 BY ADVS. SRI.R.S.KALKURA SRI.GEORGE THOMAS(MEVADA), SC, SBI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/01/2011, ALONG WITH CRMC NO. 100 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.Nos.4339 of 2010 and 100 of 2011 --------------------------------------- Dated this 20th day of January, 2011 ORDER Parties are referred to as in Crl.M.C.No.4339 of 2010. 2. Petitioner in Crl.M.C.No.4339 of 2010 is said to have purchased a Toyota Corolla Altis car bearing Engine No.1ZZ3138028 and Chasis No.MBJ53ZEE2076004550808 with temporary registration No.KL-08-D-TEMP-6510 with the loan availed from the Additional respondent No.2, State Bank of India (petitioner in Crl.M.C.No.100 of 2011). Vide Annexure-D (marked in Crl.M.C.No.4339 of 2010) the registering authority directed that petitioner shall produce the vehicle for registration within three months along with Annexure-D, order. The registering authority passed Annexure-D, order on the application filed by the petitioners for reservation of Registration No.Kl-01-AT-9000. Crl.M.C.Nos.4339 of 2010 and 100 of 2011 -: 2 :- Prosecution case is that on 20.08.2010 while petitioner was allegedly using the said registration number (which is said to have been assigned to another person on petitioner not complying with the direction in Annexure- D, order) the Cantonment police seized that vehicle on August 21, 2010 and registered Crime No.601 of 2010 for offences punishable under Secs.420, 468 and 471 of the Penal Code. The seizure was reported to the learned Judicial First Class Magistrate-III, Thiruvananthapuram. Petitioner (in Crl.M.C.No.4339 of 2010) filed C.M.P.No.3391 of 2010 for interim custody of the vehicle under Sec.451 of the Code of Criminal Procedure while Additional respondent No.2 (petitioner in Crl.M.C.No.100 of 2011) filed C.M.P.No.3481 of 2010 for similar relief claiming that petitioner had executed hypothecation agreement on September Crl.M.C.Nos.4339 of 2010 and 100 of 2011 -: 3 :- 20, 2009 in its favour while availing loan of `.11,25,000/- for purchase of the said vehicle and as per the hypothecation agreement petitioner was to repay the amout as per the terms of the agreement, at the rate of `.25,453/- per month, that amount has not been paid and thus Additional respondent No.2 has charge over the said car. It therefore prayed that interim custody of the vehicle may be given to it to preserve its right over the hypothecaa. Learned Magistrate considered the applications and vide the impugned order dated September 25, 2010 dismissed both the applications. Learned Magistrate observed that Additional respondent No.2 has no right to get interim custody of the vehicle since it could repossess the vehicle through the civil court. Claim of petitioner was also negatived. Both sides are aggrieved and challenge the common order and contends that the Crl.M.C.Nos.4339 of 2010 and 100 of 2011 -: 4 :- vehicle should have been given to their custody. I have heard learned counsel on both sides and the learned Public Prosecutor. 3. The only allegation against petitioner is that he was using the registration number (which was initially reserved for him subject to the direction contained in Annexure-D, order) which was alloted to another person (as he had not complied with the direction in Annexure- D, order) and thus committed offences as above stated. Having regard to the circumstances of the case I do not consider it necessary to retain the vehicle in the custody of the court which will only result in its damage and both parties hereto would only suffer loss on account of that. 4. Then the next question is, who among the contestants is entitled to interim custody of the vehicle. So far as Additional respondent No.2 is concerned, it has no case that it is the owner Crl.M.C.Nos.4339 of 2010 and 100 of 2011 -: 5 :- of the vehicle. Instead, it only claims a charge over the vehicle pursuant to the hypothecation agreement dated September 20, 2009 and that petitioner has failed to pay the installments as per the said agreement. Learned counsel for additional respondent No.2 states that petitioner has paid only six installments and that the entire balance amount is due and hence additional respondent No.2 is entitled to repossess the vehicle in accordance with the law. 5. So far as petitioner is concerned, it is not disputed that he is the owner and all the vehicular documents stand in his name. Hence he alone could lawfully ply the vehicle (subject of course to his obtaining proper registration from the department concerned). Hence I am of the view that petitioner is entitled to have interim custody of the vehicle. At the same time, the Crl.M.C.Nos.4339 of 2010 and 100 of 2011 -: 6 :- interest of additional respondent No.2 has to be protected. Hence release of the vehicle to the petitioner can only be subject to conditions protecting the interest of the additional respondent No.2. Resultantly, these criminal miscellaneous cases are disposed of in the following lines: (i) Crl.M.C.No.4339 of 2010 is allowed and the common order passed by the learned Judicial First Class Magistrate-III, Thiruvananthapuram in C.M.P.Nos.3393 and 3481 of 2010 to the extent it related to the dismissal of C.M.P.No.3393 of 2010 is set aside. That application will stand allowed and the vehicle involved will be released to the petitioner for interim custody subject to the following conditions: (a) Petitioner shall not transfer or in any manner dispose of the vehicle durign the period of custody. (b) Petitioner shall obtain proper registration number from the registering Crl.M.C.Nos.4339 of 2010 and 100 of 2011 -: 7 :- authority concerned for the vehicle involved and the same shall be produced before the learned Judicial First Class Magistrate-III, Thiruvananthapuram before getting release of the vehicle. (c) Petitioner shall produce, at his expense photographs of the vehicle taken from different angles in its present condition, attest the same and produced it before the learned Magistrate before the vehicle is taken on custody along with hi affidavit that the photographs are that of the vehicle involved. (d) Before releasing the vehicle to the petitioner, the number plates (bearing the alleged bogus registration numbers) shall be detached from the vehicle at the expense of the petitioner and kept in safe custody of the court below (a report to that effect shall be prepared by the C.M.O of the said court). (e) Petitioner shall execute a bond for Rs.10,00,000/- (Rupees Ten Lakhs Only) with two sureties for the likesum each to the satisfaction of the learned Magistrate undertaking to produce the vehicle in the condition it is taken from the court as and when directed by the said court and undertaking not to transfer or otherwise dispose of the vehicle in the meantime. Crl.M.C.Nos.4339 of 2010 and 100 of 2011 -: 8 :- (f) Petitioner shall deposit with additional respondent No.2 (petitioner in Crl.M.C.No.100 of 2011) the entire arrears payable to it as on 31.01.2011 within three months from this day and continue to deposit with it all installments payable from 01.02.2011 onwards on or before the 5th of every month. (g) In case petitioner fails to deposit the arrears or, any of the future installments as aforesaid, it will be open to additional respondent No.2 (petitioner in Crl.M.C.No.100 of 2011) to repossess the vehicle as provided under law but, with the permission of the learned Magistrate and subject to the liability to produce the said vehicle in the same condition as and when directed by the learned Magistrate. (ii) Crl.M.C.No.100 of 2011 is closed in the light of the above order. (THOMAS P JOSEPH, JUDGE) Sbna/-