IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 Crl.MC.No. 3176 of 2007() ------------------------- CC.2/2007 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... PETITIONER: PETITIONER: ---------------------------------------- THOMAS GEORGE, S/O. K.V. THOMAS, JAISY VILLA,MARAMON MURI,THOTTAPPUZHASSERI VILLAGE, THRUVALLA. BY ADV. SRI.M.V.S.NAMBOOTHIRY RESPONDENTS: RESPONDENTS: -------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SKARIAH JOHN @ JEEMON, ALUMKAL MALAYIL VEEDU, KALLOOPPARA VILLAGE, THIRUVALLA. 3. K.E. MATHEW, KANNACHIKKATTU VEEDU, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB- R1 BY ADV. SRI.C.S.SUNIL - R.2,3 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R.BASANT, J. ---------------------- Crl.M.C.No.3176 of 2007 ---------------------------------------- Dated this the 3rd day of September 2008 O R D E R The petitioner is the husband of the de facto complainant in a crime registered alleging the offences punishable inter alia under Section 468 I.P.C. The de facto complainant, the wife of the petitioner, was the registered owner of a car. The second respondent herein who is the sole accused in the case was entrusted with the vehicle by the de facto complainant when she went abroad. The second respondent, it is alleged, forged documents to make it appear that the vehicle has been sold by the de facto complainant to him. Long later, he is alleged to have transferred the vehicle to the third respondent. The third respondent is thus in possession of the vehicle now. The de facto complainant filed a private complaint which was referred by the learned Magistrate to the police under Section 156(3) Cr.P.C in which she raised allegations of forgery. Crime was registered. Investigation was conducted. During the pendency of the investigation, the third respondent who was in possession of the vehicle, apprehending that he may be arrested as an accused in the crime, came to this court seeking anticipatory bail. Another Crl.M.C.No.3176/07 2 Bench of this court granted anticipatory bail to the third respondent and also directed that the vehicle should be produced before the police and the police must release the vehicle to the third respondent. Following that direction, the vehicle was released to the third respondent and the third respondent is in possession of the vehicle as per a kaichit executed by him. 2. In the meantime, the petitioner, on behalf of the de facto complainant, made an application for release of the vehicle to him. That application was rejected. The petitioner came to this court with a Crl.M.C. By Annexure 7 order passed by this court, the learned Magistrate was directed to consider the matter afresh. The learned Magistrate thereafter proceeded to pass the impugned order permitting the third respondent to continue to keep the vehicle. The petitioner claims to be aggrieved by that order. 3. The second respondent is a close relative of the de facto complainant. Admittedly, certain documents to facilitate transfer were signed by the de facto complainant and handed over to the second respondent. But, according to the de facto complainant, she had never intended to transfer the vehicle to the second respondent. The second respondent, who in the Crl.M.C.No.3176/07 3 absence of the de facto complainant was in possession and were managing the car, had allegedly got the vehicle transferred to his name and had later transferred the vehicle to the third respondent. There is no allegation that the third respondent has any contumacious or culpable responsibility for the transfer. The third respondent claims to be a bona fide purchaser for value from the second respondent. The same counsel appears for second and third respondents. The learned counsel for the respondents submits that as a matter of fact, there was a transfer bona fide by the de facto complainant to the second respondent and from second respondent to the third respondent. The learned counsel for the third respondent contends that in any view of the matter, it would be harsh and unnecessary to deprive the third respondent of possession of the vehicle now. Subject to any appropriate terms and conditions, he may be permitted to continue to keep the possession of the vehicle and the learned Magistrate may be directed to dispose of the case as expeditiously possible. 4. I have considered all the relevant circumstances. I find merit in the contention of the learned counsel for the third respondent that the third respondent is a bona fide purchaser for value. No final conclusions appear to be necessary. The report Crl.M.C.No.3176/07 4 of the Forensic Science Laboratory shows that the transfer effected from the name of the de facto complainant to the second respondent is on the basis of transfer documents which do not contain the genuine signature of the de facto complainant. The second and third respondents have contentions to urge against that report also. Be that as it may, I note that the learned Magistrate, in the impugned order, had observed that the case shall be disposed of expeditiously considering the nature of the dispute regarding possession of the vehicle. But it is submitted that the trial has not commenced so far as the de facto complainant is not available in India. 5. Having considered all the relevant circumstances, I find merit in the contention of the learned counsel for the third respondent that he, allegedly a bona fide purchaser for value of the vehicle from the second respondent, a close relative of the de facto complainant, who was admittedly entrusted with the vehicle by the de facto complainant during her absence in India, can be permitted to continue to keep the vehicle until the final disposal of C.C.No.2/07 by the learned Chief Judicial Magistrate. But I do note that sufficient safeguards have not been taken and only a kaichit has been executed by the third respondent without any sureties to justify his keeping the vehicle in his possession. Crl.M.C.No.3176/07 5 6. I am satisfied that this Crl.M.C can be allowed in part to the extent of obliging the third respondent to execute a bond for the value of the vehicle to be determined by the learned Magistrate with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. 7. In the result, a) This Crl.M.C is allowed in part. b) The impugned order is not disturbed; but it is directed that the third respondent shall be entitled to continue to keep possession of the vehicle till the disposal of C.C.No.2/07 subject to the further condition that he shall execute a bond for an amount equal to the value of the vehicle to be determined by the learned Magistrate along with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate within a period of 15 days from this day. The learned Magistrate must make every endeavour to complete the trial as expeditiously as possible. If the bond is not executed, the learned Magistrate shall take steps to take over custody of the vehicle and keep the same in the custody of the court. (R.BASANT, JUDGE) jsr Crl.M.C.No.3176/07 6 I have heard the learned counsel for the petitioner and respondents 2 and 3. I deem it necessary to ascertain the terms of “proper kaichit and undertaking” which was secured from the third respondent when the vehicle was released to the third respondent under Annexure 1 order. 2. Call for a report from the learned Chief Judicial Magistrate, Pathanamthitta the details of the kaichit and undertaking which was executed by the third respondent on the basis of Annexure 1 order before the vehicle was released to him shall be made available to this court. The learned Public Prosecutor shall take instructions from the investigating officer and shall apprise this court of the details of such kaichit and undertaking executed by the third respondent. The original kaichit and undertaking executed shall also be placed before this court on the next date of posting. Call on 02/09/2008. 3. It is made clear that the trial in the case C.C.No.2/07 can be proceeded with notwithstanding the pendency of this petition. (R.BASANT, JUDGE) jsr Crl.M.C.No.3176/07 7 Crl.M.C.No.3176/07 8 R.BASANT, J. Crl.M.P.No.6453 of 2001 in Unnumbered CRL.M.C.No.of 2001 ORDER 03/09/2008