IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 Crl.MC.No. 3849 of 2007() ------------------------- CMP.8902/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... PETITIONER(S): PETITIONER. -------------------------- K.J.SANTHAKUMARI, THENGUVILA VEEDU, AMBALAKKARA, KOTTARAKKARA, KOTTAYAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT(S): COUNTER PETITIONERS & STATE. --------------------------------------------------------- 1. I.C.I.C.I. BANK, CAR LOAN SECTION MANAGER RANGANADHAN, KOLLAM. 2. THE SUB INSPECTOR OF POLICE, KOTTIYAM POLICE STATION, KOTTIYAM. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.KKM.SHERIF FOR R1 SRI.P.M.KUNJIMOIDEENKUTTY FOR R1 SRI.A.A.ZIYAD RAHMAN FOR R1 SRI.LAL K.JOSEPH FOR R1 SRI.V.R.REKESH FOR R1 PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/03/2009, ALONG WITH CRMC NO. 3852 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.6853/07 IN CRL.M.C.NO.3849/07 //DISMISSED// 3.3.3009 SD/-M.C.HARI RANI, JUDGE. TRUE COPY P.A.TO JUDGE M.C. HARI RANI, J. ====================== CRL.M.C.NOS. 3849 & 3852 OF 2007 ======================= Dated this the 3rd day of March 2009 ORDER The prayer in Crl.M.C.No.3849/2007 is to set aside the order dated 5-12-2007 in C.M.P.No.8902/2007 in Crime No.646/2007 of Kottiyam police station passed by the Court of Judicial First Class Magistrate-II, Kollam and to grant interim custody of the vehicle – Mitsubishi Lancer car bearing registration No.KL-02/W 8888 to the petitioner. The same petitioner has filed Crl.M.C.No.3852/2007 with the prayer to set aside the order dated 5-12-2007 in C.M.P.No.8698/2007 in Crime No.646/2007 of Kottiyam police station passed by the J.F.C.M-II, Kollam. CMP No.8902/2007 was filed by the petitioner herein under Section 451 of the Code of Criminal Procedure for getting interim custody of the car in which the counter petitioners are ICICI Bank and the Sub Inspector of Police, Kottiyam police station. The petition filed by the petitioner was dismissed by the learned CRMC.NOS.3849 & 3852/2007 -2- Magistrate. A copy of that order is produced as Annexure-B in Crl.M.C.3849/2007. C.M.P.No.8698/2007 was filed under Section 451 of the Code of Criminal Procedure for interim custody of the same vehicle by Vipin Kumar as the purchaser of the above vehicle from one Sudheer, who purchased the said vehicle from ICICI Bank by auction conducted by the financier wherein the counter petitioners 1 and 2 are respectively Santhakumari.K.J. (the name of the first counter petitioner is noted in the impugned order by mistake as Santhakumar.K.J.) and the Sub Inspector of Police, Kottiyam police station. A copy of that order is produced as Annexure-B in Crl.M.C.3852/2007 whereby the learned Magistrate has ordered to release the vehicle to the petitioner in that petition, Vipin Kumar with some conditions as the bona fide purchaser from Sudheer who purchased the vehicle from the financier in an auction sale. The petitioner in C.M.P.8902/2007 who is the first counter petitioner in C.M.P.8698/2007 has preferred these two petitions before this Court under Section 482 of Cr.P.C.challenging the orders of the learned Magistrate in both petitions with the prayer to set aside the orders in both CRMC.NOS.3849 & 3852/2007 -3- petitions and to grant interim custody of the vehicle Mitsubishi Lancer Car bearing Registration No.KL-02/W-8888 to the petitioner herein as the registered owner of the vehicle. 2. Heard the learned counsel appearing for the petitioner and the learned counsel for ICICI Bank and for the first respondent in Crl.M.C.No.3852/2007. 3. Vehicle No. KL-02W-8888 was purchased by the petitioner, Santhakumari.K.J.by availing loan of Rs. Seven lakhs from ICICI Bank as per loan agreement and have committed default in paying the instalments dues in favour of the financier, were admitted by the petitioner and also the counter petitioners. It is contended by the petitioner herein that the financier has taken possession of the vehicle forcibly and Crime No.646/2007 of Kottiyam police station was registered against the Manager of ICICI Bank and other accused on 9-11-2007 for the offences punishable under Sections 392,465,323,341,3,54,509 and 149 of the Indian Penal Code, copy of the F.I.R. is produced as Annexure-A. That crime is pending investigation and final report is not yet filed. Meanwhile C.M.P.No.8902/2007 was filed by the CRMC.NOS.3849 & 3852/2007 -4- petitioner on 19-11-2007 under Section 451 of Cr.P.C.for getting interim custody of the vehicle. The learned Magistrate after considering the averments in the petition and also the contentions in the counter affidavit filed by the first respondent, the financier has passed the impugned order dated 5-12-2007 whereby the prayer made by the petitioner was rejected and the petition was dismissed. In answer to point No.1, the learned Magistrate has found that the “the records would prima facie prove that the petitioner has surrendered vehicle to the Bank and thereafter the bank has put the vehicle in the auction sale.” 4. C.M.P.No.8698/2007 was filed by Mr.Vipin Kumar on 13-11-2007 claiming interim custody of the same vehicle, Lancer Car bearing registration No.KL.02W-8888 as the bona fide purchaser from Sudheer,the auction purchaser and absolute owner of the vehicle. Thus it is evident that interim custody of the vehicle is claimed by the petitioner in these Crl.M.Cs.as the registered owner of the vehicle who has committed default in paying the amount due to the financier. This prayer is opposed by the Financier,ICICI Bank and produced documents before this CRMC.NOS.3849 & 3852/2007 -5- Court along with the verified petition as Annexures R1(a) to R1(f) to substantiate their contention that the petitioner herein has surrendered vehicle No.KL.02W-8888 to the financier and requested to take steps to release the vehicle from the custody of the Sub Inspector, Punalur police station on 30-5-2007. Annexure-R1(c) is the inventory report prepared before taking possession of the vehicle. Annexure R1(d) is the telegram sent by Smt.K.J.Santhakumari to the Manager of ICICI Bank wherein it is mentioned that she has surrendered the vehicle to the Bank on 4-6-2007 due to some financial problem and that the prayer is made to release the vehicle by closing the entire loan amount due to the financier and to release the vehicle after closing the loan amount. The telegram was sent on 2-9-2007. So, the case of forcible repossession of the vehicle by the financier cannot be accepted. As per the terms and conditions of the loan agreement, public auction of the vehicle was conducted by the financier and in that auction it was purchased by the auction purchaser one Mr.Sudheer from whom the petitioner Vipin Kumar has purchased the vehicle. So, Mr.Vipin Kumar has stepped into CRMC.NOS.3849 & 3852/2007 -6- the shoes of the auction purchaser Mr.Sudheer, who purchased the vehicle for valid consideration of Rs.3,50,000/-. 5. While disposing the petitions filed under Section 451 of Cr.P.C., the point to the considered is who has got a better title over the vehicle so as to release the same to the rightful owner. The petitioner in C.M.P.No.8698/2007, Mr.Vipin Kumar was found to have better title in respect of the vehicle after considering the documentary evidence and the facts of this case by the learned Magistrate as per the impugned order, produced as Annexure-B in these petitions. Whether any irregularities have been committed in transferring the ownership of the vehicle to the auction purchaser or to the subsequent purchaser etc.are matters to be decided after considering the evidence to be adduced on the side of the prosecution. Crime No.646/2007 is only at the stage of investigation. The order under Section 451 of Cr.P.C.is passed for interim custody to preserve the vehicle pending conclusion of the inquiry or trial and to avoid natural decay etc. After considering the evidence to be adduced by the prosecution and also by the defence, the disposal of the property CRMC.NOS.3849 & 3852/2007 -7- will be dealt with by the learned Magistrate under Section 452 of Cr.P.C. which need not be considered in a petition filed under Section 451 of Cr.P.C. This is the discretionary power of the Magistrate that too after considering the evidence on record, which is correctly exercised by the learned Magistrate in the C.M.Ps. This court is not sitting in appeal or revision. But this Court in exercising the jurisdiction under Section 482 of Cr.P.C. can interfere the order, if it is perverse or any illegalities in that order. I find no reason to interfere with those orders passed by the learned Magistrate. All other contentions raised by the petitioner herein can be raised before the learned Magistrate at appropriate stage and the learned Magistrate is directed to consider all documents produced by the petitioner and the respondents herein at that stage and to pass orders in accordance with law. The Crl.M.Cs. are disposed of accordingly. M.C. HARI RANI JUDGE ks.