IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 Crl.MC.No. 184 of 2011() ----------------------------- CMP.3298/2010 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... PETITIONER(S): ------------------- M/S.INDUS IND BANK LTD., (VEHILCE FINANCE DIVISION) M.G.ROAD, THIRUVANANTHAPURAM 'SHALOM TOWERS' 34/138-D BYE PASS NORTH END, EDAPPALLY, KOCHI - 682024. REPRESENTED BY ITS LEGAL EXECUTIVE PARTHEESH S. BY ADV. SRI.G.HARIHARAN RESPONDENT(S): STATE & COMPLAINANT ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682031. 2. SUB INSPECTOR OF POLICE, CHENGANNUR POLICE STATION, CHENGANNUR, ALAPPUZHA DIST. 3. SUJITH MATHEW, S/O.T.S.MATHEW, T.V.S. BUILDINGS, PERISSERY, CHENGANNUR. 4. RAVEENDRAN,S/O.KRISHNAN, HARI NIVAS, T.C.11/310 KESTON ROAD, KOWDIAR, THIRUVANANTHAPURAM. R1 & R2 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA R3 BY ADV. SRI.O.D.SIVADAS R4 BY ADV. SRI.BIJU BALAKRISHNAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs. THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.184 of 2011 --------------------------------------- Dated this 06th day of April, 2011 ORDER Petitioner challenges order passed by learned Judicial First Class Magistrate Chengannur on C.M.P.No.3298 of 2010 in Crime No.410 of 2010 of Chengannur Police Station. Dispute concerns interim custody of a vehicle. It is not disputed that fourth respondent is the registered owner of the vehicle. It is stated that he executed a loan agreement with petitioner and availed loan on the security of the said vehicle on 31.05.2006. According to the petitioner, violating the terms and conditions of the agreement fourth respondent defaulted payment and transferred possession of the vehicle and thereon petitioner seized the same. While so, third respondent filed complaint against employees of petitioners alleging offences punishable under Secs.380 and 382 r/w Sec.34 of the Indian Penal Code. Grievance of petitioner is that without hearing petitioner, learned Magistrate has passed the impugned order giving custody of the vehicle to the third respondent under Sec.451 of the Code of Criminal Procedure (for short, "the Code”). Learned counsel for petitioner contends that petitioner ought to have been given Crl.M.C.No.184 of 2011 -: 2 :- notice of proceeding so that petitioner could have made a claim for custody of the vehicle. Learned counsel for third respondent submitted that third respondent had purchased the vehicle and pursuant to the impugned order, third respondent is in possession and enjoyment of the said vehicle. Learned counsel for fourth respondent contended that fourth respondent has no transaction with third respondent and instead, has executed an agreement with one Vijayakumar who violated terms and conditions of the agreement and thereon, fourth respondent filed O.S.No.571 of 2010 in the first Additional Sub Court, Thiruvananthapuram against Vijayakumar and petitioner for a decree for prohibitory injunction against enjoyment of the vehicle and has obtained an interim order in that line. 2. It is seen from Annexure-VI, petition and it is not disputed also that notice of C.M.P.No.3298 of 2010 was given only to the Sub Inspector of Police, Chengannur (representing the prosecution) and not to the petitioner or the fourth respondent. In a situation of this nature learned Magistrate ought to have given notice of proceeding to the petitioner and the fourth respondent. Since the impugned order is passed without hearing them, that order cannot stand. 3. Learned counsel for third respondent submitted that possession of the vehicle with the third respondent may not be Crl.M.C.No.184 of 2011 -: 3 :- disturbed for the time being in view of the order this Court is proposing to pass in this criminal miscellaneous case. I do not intend to disturb possession third respondent now claims to have pursuant to the interim order of learned Magistrate which I found is not sustainable but, I direct that until learned Magistrate disposed of C.M.P.No.3298 of 2010 after giving notice to all the parties interested in the matter, third respondent shall not transfer the vehicle in ownership or possession to any other person, dismantle or encumber the same. Resultantly with the direction made against the third respondent, this criminal miscellaneous case is allowed and the impugned order on C.M.P.No.3298 of 2010 is set aside. That petition is remitted to the Court of learned Judicial First Class Magistrate, Chengannur for fresh disposal after giving notice of the petition to the petitioner and fourth respondent as well. I make it clear that I have not made any observation regarding the merit of respective claims made by the parties before me. Learned Magistrate is directed to dispose of the petition as expeditiously as possible. (THOMAS P JOSEPH, JUDGE) Sbna/-