IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 Crl.MC.No. 704 of 2011() ----------------------------------- IN COMMON ORDER IN CMP.12656/2010 IN CMP.12796/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA CRIME. NO.687/2010 OF PUDUKKAD POLICE STATION. .................... PETITIONER(S): CLAIM PETITIONERS IN CMP 12656/2010 --------------------------------------------------------------------------------- ARUN, S/O. NARAYANANKUTTY, MADATHISSERY HOUSE, MADAKKATHARA P.O., VELLANIKKARA VILLAGE. BY ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): STATE AND CLAIM PETITIONERS IN CMP 12796/2010 ------------------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MEENAKUMARI, W/O. SURESH KUMAR, KORAVANGATT HOUSE, PANDARAMOOLA, ANANDAPURAM. BY PUBLIC PROSECUTOR SRI. SABU SREEDHARAN R2 BY ADV. SRI.G.SREEKUMAR(CHELUR) THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.704 of 2011 ==================================== Dated this the 15th day of March, 2011 O R D E R Dispute concerned entitlement to possess a Car involved in the case. Its registered owner is one Meenakumari who on 22.07.2010 filed Annexure-D, complaint against one Pradeep for offences punishable under Sections 406 and 420 of the Indian Penal Code alleging that in respect of the said vehicle she had a hire purchase agreement with the ICICI Bank and while so, the said Pradeep took custody of the vehicle from her. The second respondent and her husband approached the said Pradeep. Then he asked them to go to the Bank. He also informed them that on payment of the entire amount the vehicle would be returned to the second respondent. After about a week the second respondent went to the Bank and it was learned that without the knowledge of the Bank, Pradeep had transferred the vehicle to another person. It is stated that Pradeep committed offences punishable under Sec.406 and 429 of the IPC. In the course of investigation the police took custody of the vehicle and produced the same before the learned Magistrate. The second respondent filed CRL.M.C. No.704 of 2011 -: 2 :- C.M.P. No.12796 of 2010 while petitioner, claiming to be the owner of the vehicle filed C.M.P.No.12656 of 2010. Learned Magistrate considered both the petitions and disposed of the same by a common order allowing petition filed by the second respondent and ordering interim custody of the vehicle to her. The common order is under challenge. Learned counsel for petitioner contended that learned Magistrate has not adverted to the various facts and circumstances of the case and proceeded on the assumption that signature of the second respondent was forged in the relevant documents for transfer of the vehicle to one Iqbal (who in turn is said to have transferred the vehicle to the petitioner). It is pointed out by learned counsel that learned Magistrate wrongly observed that in the sale letter name of the second respondent is written as 'Leena Kumari' instead of 'Meena Kumari' and that there are over writings but none of these are correct as seen from the documents produced (page Nos.50 to 54 of the Paper Book). According to the learned counsel the second respondent who contended that her signature is forged did not produce her signature during the relevant time and prior to the litigation started. The second respondent contended that she is the registered owner of the vehicle and that in such a situation it CRL.M.C. No.704 of 2011 -: 3 :- was for the petitioner to prove the transfer pleaded by him. 2. According to the petitioner he purchased the vehicle from one Iqbal through M/s.BRD Car World (Annexures A and B) on payment of sale consideration. It is also the version of petitioner that pursuant to the said purchase registration was changed in his name. He claims to be a bona fide purchaser. 3. It is seen from paragraph 7 of the impugned order that learned Magistrate has observed that in Form No.29 (allegedly issued by the second respondent) the name of second respondent is written as 'Leena Kumari' while she is 'Meena Kumari' and that there is over writing. Photocopy of Form No.29 is Annexure-I (See Page 54 of the Paper Book). There, name of second respondent is written as 'Meena Kumari' and not as 'Leena Kumari' as observed by the learned Magistrate. I do not find any over writing in the name of second respondent in Annexure-I. 4. On the question whether signature of the second respondent was forged, what is available is only her signature in the complaint she has preferred. It is settled that for the purpose of comparison post litem signature cannot be made use of. Second respondent ought to have produced her signature prior to the litigation started and during the relevant time for CRL.M.C. No.704 of 2011 -: 4 :- comparison with the signature appearing to be that of her in Anneuxre-I (Pages 53 and 54 of the paper Book). That has not been done. 5. According to the second respondent she has already discharged the entire liability to the ICICI Bank and has filed a private complaint against Iqbal (transferor of petitioner). But these documents are not produced before the learned Magistrate. 6. I stated that the learned Magistrate has proceeded on the basis that there is forgery of signature of the second respondent. I also stated that no document containing admitted signature of the second respondent during the relevant time and at any rate before the litigation started is produced before the learned Magistrate. I do not forget that though subsequently the second respondent has filed a complaint against petitioner also. These are matters required to be looked into by the learned Magistrate. Under Section 451 of the Code of Criminal Procedure (for short, “the Code”) what is required to be considered is as to the person who is entitled to possess the vehicle. In deciding that, it is open to the learned Magistrate to look into the police records also and the bar under Sec.161 of the Code does not apply. On going through the order under CRL.M.C. No.704 of 2011 -: 5 :- challenge I am inclined to think that it has to go back for fresh consideration. Resultantly, Criminal Miscellaneous Case is allowed and the common order in C.M.P. Nos.12656 and 12796 of 2010 is set aside. Those petitions are remitted to the learned Magistrate for fresh consideration. I make it clear that it is open to the parties to produce further evidence on their side. Learned Magistrate is directed to consider the petitions afresh and dispose of same as early as possible having regard to the question as to who is entitled to possess the vehicle. THOMAS P. JOSEPH, JUDGE. vsv