IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 Crl.MC.No. 4179 of 2009 ---------------------------------- (CRL.M.P.NO.4635/09 IN C.C.NO.1389/09 OF THE J.F.M.C-I, PERUMBAVOOR) ........... PETITIONER/PETITIONER/3RD ACCUSED: ----------------------------------------------------------- BABY MICHAEL, W/O.MICHAEL, AGED 48, KURISUPARAMBIL HOUSE, LOURDE MATHA CHURCH ROAD, PUTHUKALAVATTOM, ELAMAKKARA POST, COCHIN -682 026. BY ADV. MR.P.T.JINS. RESPONDENTS/RESPONDENTS/WITNESS NO.1: --------------------------------------------------------------------- 1. SUB INSPECTOR OF POLICE, PERUMBAVOOR. 2. MADHUSOODHANAN KARTHA, S/O.GOPALAPANICKER, KEDARAM VEEDU, PERUMBAVOOR KARA, PERUMBAVOOR VILLAGE. 3. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R3 BY PUBLIC PROSECUTOR MR. C.M. KAMMAPPU. R2 BY ADV. MR. G. RAJAGOPAL. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05/02/2010, THE COURT ON 10/02/2010 PASSED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 4179 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of February, 2010. ORDER In this petition filed under Section 482 of the Code of Criminal Procedure, the petitioner assails the order the Judicial Magistrate of the First Class-I, Perumbavoor in M.P.4635 of 2009 in C.C. 1389 of 2009 and M.P. 4847 of 2009 in C.C. 1389 of 2009. That order was passed for an interim custody of a vehicle under Section 451 of Cr.P.C. 2. The vehicle involved in these proceedings bearing registration No.KL 7/BD-9908 a Maruti WagonR car is involved in Crime No.1510 of 2008 of Kalamassery Police Station. On filing the final report, the court took the case on file as C.C.1389 of 2009. The petitioner in filed Crl.M.P. 4635 of 2009 seeking interim custody of the vehicle. The second respondent also filed Crl.M.P.4847 of 2009 in C.C.1389 of 2009. Both the petitions were Crl.M.C.4179/2009. 2 disposed of by a common order and the court directed that the interim custody be given to the petitioner in M.P. 4847 of 2009, who is the second respondent herein. It is the said order that is under challenge. 3. It is pointed out by the petitioner that he is the registered owner of the vehicle and he has produced all the relevant records before the court below. It is also pointed out by him that he is paying the instalments of loan amount due for the vehicle and there was no justification in the court below in directing interim custody to be given to the second respondent, who had no right to possess the vehicle. 4. As per the prosecution case, accused Nos.1 and 2 had pledged the vehicle to accused No.3, who is the second respondent herein and received a sum of Rs.1,25,000/- for a period of three months. According to the second respondent, when he came to know that he had been cheated, he had surrendered the vehicle before the Police Station. He had paid Rs.1,25,000/- to accused Nos.1 and 2. His claim was on the basis that the vehicle was Crl.M.C.4179/2009. 3 hypothecated to him and accused Nos.1 and 2 had received amounts from him and he therefore claimed that he has a lien over the vehicle. 5. The petitioner on the other hand contends that the vehicle was given to the first accused as per Annexure A and it had to be returned after the stipulated period. That was not done and therefore he laid a complaint. It is pointed out by the petitioner that, may be that the second respondent had surrendered the vehicle before the police, but he had no authority to possess the same as much as the petitioner was the registered owner and the vehicle had come into the possession of accused Nos.1 and 2 under the circumstances mentioned by him. Learned counsel for the petitioner relies on the decisions reported in Sunderbhai Ambalal Desai v. State of Gujarat [(2002) 10 SCC 283], Rajendra Prasad v. State of Bihar [2001 Crl.L.J. 4946] and Jacob v. Jayabharat Credit & Investment Co. [1983 KLT 721]. Crl.M.C.4179/2009. 4 6. The court below was greatly impressed by the fact that Annexure A produced before the court below could not be a true one. That is dated 20.8.2008. The court below found that at that point of time the petitioner herein could not have been in possession of the vehicle and therefore it viewed the agreement with suspicion. Then holding that the vehicle was in the possession of the second respondent herein, directed that the vehicle be released to him. 7. It is difficult to justify the findings of the court below. Petitioner had produced the registration certificate and so also the documents to show that he was paying instalments of the loan amount due on the vehicle. Merely because Annexure A may not be in fact true, that does not mean that the second respondent is automatically entitled to the possession of the vehicle. Even assuming what the second respondent says is true and correct, then the question remains whether he can get possession of the vehicle in the light of the fact that the petitioner is the registered owner and who is entitled to take possession of Crl.M.C.4179/2009. 5 the vehicle. The petitioner has also pointed out that even before Annexure A, the vehicle was in the hands of the first accused in the case and when that vehicle was not returned, he had instituted a complaint. That is produced as Annexure C. 8. It would appear that the modus operandi of accused Nos.1 and 2 in the case is to take vehicles on hire from persons and then hypothecate to third persons. Thereafter they disappear leaving it to the owner and the hypothicatee to fight. 9. Whatever that be, that is a matter for determination in the main case. 10. Of course, learned counsel appearing for the second respondent has drawn the attention of this court to Annexure D, which is the FIR in the case, which mentions about the stand of the second respondent. 11. The court below did not consider the significance of the production of registration certificate and also the fact that the instalment towards the loan was being Crl.M.C.4179/2009. 6 paid by the petitioner. As already noticed, merely because Annexure A agreement may not inspire confidence in the mind of the court, it does not mean that the vehicle should be given to the second respondent. 12. Of course, one could say that this is only an interim order and therefore the rights are not finally determined. But the fact remains that the petitioner continues to pay the instalments due for the vehicle and the vehicle is in the possession of somebody else. His liabilities continue even though the vehicle is used by someone else. Such a situation cannot be countenanced. At best, what could be said about in favour of the second respondent is that he might have a lien over the vehicle. 13. The court below had therefore to determine who is the better claimant in the present state of affairs. These aspects have not been considered by the court below and therefore the order cannot be sustained. In the result, this petition is allowed, the impugned order is set aside and the matter is remanded to the trial Crl.M.C.4179/2009. 7 court for fresh consideration in accordance with law and in the light of what has been stated above. P. BHAVADASAN, JUDGE sb.