IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 Crl.MC.No. 2674 of 2008() ------------------------- CMP.3283/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD CRIME NO.102/08 OF THE PALODE POLICE STATION. .................... PETITIONER: ------------ MUJEEB, S/O.ABDUL MAJEED, PARUTHIVILA VEEDU, PAPPANAMCODE PO., PERINGAMMALA VILLAGE, NEDUMANGAD BY ADV. SRI.A.RAJASIMHAN RESPONDENTS: ------------- 1. BAIJU, S/O.SIVADASAN, DHANYA BHAVAN, EDAMULACKAL, ANCHAL, EDAMULACJAL VILLAGE PATHANAPURAM TALUK. 2. SUB INSPECTOR OF POLICE, PALODE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB. SRI.MANOJ RAMASWAMY FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/08/2008, ALONG WITH CRMC NO. 2956 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. Nos. 2674 & 2956 of 2008 ------------------------------------------------- Dated this the 6th day of August, 2008 ORDER These petitions are filed by the rival contestants in an application for release of a vehicle which is seized by the police in a crime. 2. Parties shall be referred to as the de facto complainant, accused and the agreement owner respectively. The de facto complainant alleged that he had purchased a new WagonR car and he had entrusted the same to the accused who happens to be the bill collector of a Co-operative Bank. He asserts that the car was so handed over for the use of the Co- operative Bank on condition that a handsome rent shall be paid every month for such use of the vehicle by the Co-operative Bank. He entered into an agreement dated 2/10/07 and allegedly handed over the vehicle to the accused. The Crl.M.C. Nos. 2674 & 2956 of 2008 -: 2 :- accused, it is contended, was bound to pay the rent for three months and return the vehicle on 2/1/08. The accused did not allegedly return the vehicle. Requests made for return of the vehicle were resisted and the de facto complainant was allegedly threatened. The de facto complainant filed a complaint and on the basis of that complaint, the First Information Report was registered on 15/3/08. The vehicle was seized by the police on 2/4/08 admittedly from the possession of the agreement owner. The de facto complainant went before the learned Magistrate and prayed that the vehicle may be released to him. 3. The agreement owner later came before the court and staked a claim for release of the vehicle in his favour. He contended that an agreement dated 4/10/07 was executed by the de facto complainant in his favour agreeing to transfer the vehicle to him. The total consideration was fixed at Rs.2.9 lakhs and towards that, an amount of Rs.1.9 lakhs was paid as advance. There was an hypothication finance taken on the vehicle for Rs.1 lakh. It was agreed that the said liability shall be discharged and when the agreement owner is satisfied that such discharge has been made, the balance amount of Rs.1 lakh Crl.M.C. Nos. 2674 & 2956 of 2008 -: 3 :- shall be paid to him. According to the agreement owner, he is in possession of the vehicle in pursuance of that agreement dated 4/10/07. 4. The de facto complainant denied having entered into any such agreement with the agreement owner. According to him, that agreement is a forged one. Along with the agreement, the agreement owner had also produced the blank signed forms in Form Nos. 29 and 30 to facilitate transfer of ownership in his name. The agreement owner had also available with him the Registration Certificate of the vehicle. The de facto complainant contended that the accused and the agreement owner are acting in collusion and the Registration Certificate must have been handed over by the accused to the agreement owner after forging the agreement and the transfer forms. The de facto complainant hence contended that the agreement owner has no right to get back the vehicle. 5. The learned Magistrate considered both the petitions together and came to the conclusion that a firm decision about the disputed contentions cannot now be arrived at on the basis of the materials presently available. The learned Magistrate hence Crl.M.C. Nos. 2674 & 2956 of 2008 -: 4 :- came to the conclusion that subject to heavy and onerous conditions, the vehicle can be handed over to the agreement owner. Accordingly, it was directed that the vehicle shall be handed over to the agreement owner from whose possession the vehicle was admittedly taken, on condition that he deposits an amount of Rs.3 lakhs in cash or produces bank guarantee for such amount. In the alternative, it was directed that he must execute a bond for Rs.3 lakhs with two solvent sureties who must both produce their solvency certificates. 6. The agreement owner has come to this Court with Crl.M.C.No.2956/08 to modify the conditions. According to him, he is unable to take possession of the vehicle from court satisfying these conditions. It is prayed that the conditions may be modified. 7. The de facto complainant has come to this Court with Crl.M.C.No.2674/08. He contends that the signatures in the agreement dated 4/10/07 as also the blank signed forms are all the result of forgery and he had never subscribed his signatures to any of those documents. He contends that the accused is acting in collusion with the agreement owner. The accused is a Crl.M.C. Nos. 2674 & 2956 of 2008 -: 5 :- very influential political activist belonging to the ruling faction and therefore the police is clandestinely helping the accused and at his instance the agreement owner also. It is, in these circumstances, prayed that, at any rate the agreement dated 4/10/07 as also the blank signed forms produced by the agreement owner may be eschewed totally from consideration and the vehicle may be directed to be released to the de facto complainant subject to any appropriate terms and conditions. 8. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor submits that investigation has to proceed further. It will have to be ascertained whether the signatures appearing in the agreement dated 4/10/07 and the blank signed forms are that of the de facto complainant. Steps have already been taken in this direction. The report of the expert is awaited. Until then, it is difficult for the prosecution to take any firm and definite stand. In these circumstances, appropriate orders may be passed, submits the learned Public Prosecutor. 9. The learned counsel for the petitioner/de facto complainant submits that no investigation worth the name has Crl.M.C. Nos. 2674 & 2956 of 2008 -: 6 :- been conducted by the Investigating Officers. In the light of the contentions, the Case Diary was called for. I find merit in the submission of the learned counsel for the petitioner/de facto complainant. The agreement dated 4/10/07 shows that two witnesses have signed as attestors to the said agreement. But the Case Diary does not show that those witnesses have been questioned by now. I also note that the de facto complainant has not so far been questioned specifically with reference to the agreement dated 4/10/07. His attention is not seen drawn to the signatures appearing the in the said agreement dated 4/10/07 as also the blank signed forms. I find merit in the contention of the learned counsel for the petitioner that even a member of the laity will be able to discern that the signatures appearing in the agreement and in the disputed forms do not rhyme well with the signatures of the de facto complainant. 10. I have considered all the available materials. I have very anxiously gone through the Case Diary. The endeavour of the court now, it appears to me, is only to find out who is speaking the worst lie. The true facts have not been fully brought to the notice of the court by any of the contestants, it Crl.M.C. Nos. 2674 & 2956 of 2008 -: 7 :- appears. I am not intending to express any final opinion. I must alertly remind myself of the concern which the Supreme Court expressed in Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003 SC 638). The courts must make every endeavour to ensure that the costly vehicles are not allowed to suffer damage and deterioration in the courts premises or in the custody of authorities as entrusted by court. I have only attempted to find out to whom the vehicle can be entrusted so that damage and deterioration of the vehicle can be avoided. The registered owner is the de facto complainant. Allowing a non-registered owner to ply the vehicle would certainly cause unnecessary annoyance, irritation and complications because the registered owner would continue under law to be liable for the use of the vehicle. I am not too convinced about the agreement dated 2/10/07 relied on by the de facto complainant. I am still less convinced about the agreement dated 4/10/07. I have gone through the Case Diary. I find that the accused has already been questioned, though he has not been arrested yet. His statement has also been perused by me. 11. The value of the car, when it was new, did not exceed Crl.M.C. Nos. 2674 & 2956 of 2008 -: 8 :- Rs.3.5 lakhs, it is not in serious dispute. The best interest of the agreement owner in the vehicle, until the vehicle is transferred to him, is for an amount of Rs.2.9 lakhs which he claims to have advanced to the de facto complainant. I am, in these circumstances, satisfied that until the parties go to the civil court and get a proper direction, the vehicle, to avoid loss, damage and deterioration for the same, can be entrusted safely to the de facto complainant/the registered owner on condition that adequate security is taken for an amount of Rs.1.9 lakhs which the agreement owner is alleged to have advanced to the registered owner/the de facto complainant. Subject to adequate security taken from the registered owner, I am satisfied that the vehicle can be released to the de facto complainant/registered owner. 12. In the result: (a) Crl.M.C.No.2956/08 is dismissed. (b) Crl.M.C.No.2674/08 is allowed. (c) The impugned order is set aside. (d) It is directed that the vehicle shall be handed over to the de facto complainant/registered owner along with the Crl.M.C. Nos. 2674 & 2956 of 2008 -: 9 :- Registration Certificate on condition that: (a) he executes a bond for Rs.3.5 lakhs with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. (b) he makes a deposit of Rs.1.9 lakhs before the learned Magistrate or in the alternative, produces bank guarantee to the satisfaction of the learned Magistrate for the said amount of Rs.1.9 lakhs. (c) In such bond, the petitioner shall undertake to keep the vehicle in the same condition in which it was handed over to him and also to produce the vehicle as and when directed before the learned Magistrate or any other court or authority as may be directed by the learned Magistrate. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. Nos. 2674 & 2956 of 2008 -: 10 :- Crl.M.C. Nos. 2674 & 2956 of 2008 -: 11 :- R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2674 of 2008 ------------------------------------------------- Dated this the 16th day of July, 2008 ORDER Heard. Admitted. Notice given and the learned Public Prosecutor appears for the respondent/State. Issue notice to the 1st respondent by speed post with acknowledgment due. Simultaneously give notice to the learned counsel for the 1st respondent who was appearing before the court below and file a memo to that effect in 10 days. Crl.M.A.No.3826/08: There shall be an interim direction that the vehicle shall not be released to the 1st respondent unless he complies with the condition to deposit an amount of Rs.3 lakhs or furnish bank guarantee for the said amount as insisted in the impugned order. Call on 28/7/08. Crl.M.C. Nos. 2674 & 2956 of 2008 -: 12 :- (R. BASANT, JUDGE) Nan/