IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 Crl.MC.No. 1870 of 2011() ------------------------- AGAINST THE ORDER DATED 14/06/2011 IN CRMP 12796/2010 AND CRMP.12656/2010 IN C.C. NO. 1 OF 2011 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA, IN CRIME NO.687/2010 OF THE PUDUKKAD POLICE. .................... PETITIONER/PETITIONER/DEFACTO COMPLAINANT ---------------------------------------------------------------------------- MEENAKUMARY,W/O.SURESH KUMAR, KORAVANGATT HOUSE, PANDARAMOOLA, ANANDAPURAM. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S)/STATE OF KERALA AND THIRD PARTY CLAIMANT --------------------------------------------------------------------------------------------------- 1. THE STATE OF KERALA,REP.BY THE SUB INSPECTOR OF POLICE,PUDUKKAD POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM 682031. 2. ARUN,S/O.NARAYANANKUTTY,MADATHISSERY HOUSE,MADAKKATHARA.P.O,VELLANIKKARA, THRISSUR DISTRICT. R2 ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1870 of 2011() -------------------------------------- APPENDIX --------------- PETITINER'S ANNEXURES ------------------------------------- ANNEXURE-I. COPY OF THE PRIVATE COMPLAINT FILED BY THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRTE COURT, IRINJALAKUDA DT. 22.7.2010. ANNEXURE II. COPY OF THE FIR IN CRIME 687 OF 2010 OF THE PUDUKKAD POLICE STATION DT. 2.8.2010. EXT.P3. COPY OF THE PETITION FILED AS CMP NO.12796 OF 2010 FILED BEFORE THE JFCM, IRINJALAKUDA DT. 19.11.2010. ANNEXURE-IV. COPY OF THE CMP NO.12656/2010 FILED BY THE 2ND RESPONDENT HEREIN BEFRE THE JFCM, IRINJALAKUDA DT. 16.11.2010. ANNEXURE-V. COPY OF THE ALLEGED REPORT OF TRANSFER OF OWNERSHIP OF A MOTOR VEHICLE DT. NIL ANNEXURE VI. COPY OF THE COMMON ORDER PASSED IN CRL.M.PNO.12796/2010 AND THE CONNECTED APPLICATION IN CC NO.1 OF 2011 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, IRINJALAKUDA DT. 27.12.2010. ANNEXURE VII. COPY OF THE ORDER PASSED IN CRL.M.C. NO.704 OF 2011 DATE 15.3.2011 OF THIS HON'BLE COURT. ANNEXURE VIII. COPY OF THE COMMON ORDER PASSED IN DT. 14.6.2011 IN CRL. MP NO.12656/2010 AND IN CRL.MP. NO.12796/2010 IN CC. NO.1 OF 2011 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, IRINJALAKUDA DT. 14.6.2001. RESPONDENT'S EXHIBITS : NIL --------------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.1870 of 2011 --------------------------------------- Dated this 05th day of August, 2011 ORDER A dispute over ownership and possession of a Maruti Alto car is bringing the parties to this Court on a second occasion, this time also challenging the order passed by the learned Magistrate as to its interim custody. Initially, order was passed in favour of petitioner and she was given possession of the vehicle. That order was challenged by the second respondent in Crl.M.C.No.704 of 2011 in this Court and this Court disposed of that case as per order dated March 15, 2011 by remand. Learned Magistrate was directed to consider the matter afresh. Certain directions were also issued to the learned Magistrate in the matter of deciding as to who is the proper person to be in custody of the vehicle until the case is disposed of. Learned Magistrate directed petitioner to be present in Court and obtained her specimen signature. The same were compared with the disputed signature in the relevant documents and the learned Magistrate came to the conclusion that the signature in the disputed documents prima facie appeared to be that of petitioner. Following that, prayer of second respondent for interim custody Crl.M.C.No.1870 of 2011 -: 2 :- was allowed. Petition filed by petitioner was dismissed. The said order is under challenge. Learned counsel for petitioner has contended that the very same Magistrate had on a prior occasion found dissimilarity in the signatures but after this Court remanded the case to the learned Magistrate for fresh decision, learned Magistrate has entered a finding regarding similarity of signatures which prima facie is not acceptable. It is contended by learned counsel that it is not disputed by the respondent also that side that petitioner is the original registered owner of the vehicle. In that situation, it was only appropriate that petitioner was to be the proper person to be in custody of the vehicle. It is contended by learned counsel for respondent that learned Magistrate compared the disputed signatures with the specimen signatures of the petitioner and came to the right conclusion, which, prima facie has to be accepted. It is further contended that the second respondent has purchased the vehicle from the authorised dealer of Maruti vehicles on payment of `.1,80,000/- as proved by the relevant documents and registration of the vehicle was changed in the name of second respondent. Hence second respondent is the proper person to be in custody of the vehicle. Crl.M.C.No.1870 of 2011 -: 3 :- 2. According to the petitioner, she had a hire purchase transaction in respect of the vehicle with the Kozhikode branch of the ICICI bank and while so, one Pradeep took forcible possession of the vehicle from her on 27.12.2009. She preferred a private complaint on 22.07.2010 alleging offences punishable under Secs.406 and 420 of the Indian Penal Code. Following that, the vehicle was seized from the possession of second respondent (since by then he claimed to have purchased the vehicle from the authorised dealer of Maruti vehicles). Petitioner filed C.M.P.No.12796 of 2010 while the second respondent filed C.M.A.No.12656 of 2011, both claiming interim custody of the vehicle. Initially learned Magistrate allowed petition filed by petitioner and dismissed petition filed by the second respondent which this Court set aside as per order on Crl.M.C.No.704 of 2011 for fresh decision by the learned Munsiff. 3. It is true that in the original order whereby learned Magistrate allowed the request of petitioner, certain observations were made regarding dissimilarity in the signature. This Court disposed of Crl.M.C.No.704 of 2011 directing that on the question whether signature of petitioner was forged or not, what was available was only her signature in the complaint she preferred. This Court observed that comparison of disputed Crl.M.C.No.1870 of 2011 -: 4 :- signature with post litum signature is not safe. It is in the above circumstance that parties were permitted to adduce evidences in respect of their contentions. Learned Magistrate obtained specimen signatures of petitioner in open Court and that was compared with the disputed signature in form No.29 and other relevant documents which is allegedly executed by petitioner. The result of that observation is contained in paragraph 6 of the impugned order. Learned Magistrate has observed that signature in the sale letter (allegedly issued by the petitioner) as well as specimen signature obtained in the open Court were compared (under Sec.73 of the Evidence Act). On comparison it was seen that signature in the sale letter (allegedly) executed by the petitioner and specimen signature obtained in open Court appeared to be of same person. There were two copies of Form No.29 for transfer of ownership of the vehicle of which signature in one tallied with the specimen signature and the signature in the other had some difference in the letter (M) but ultimately learned Magistrate concluded that in spite of that minor difference, considering the characteristic of the writing, both signatures appeared to be of the same person (petitioner). 4. No doubt, initially learned Magistrate had observed that the disputed signature of petitioner in form No.29 did not Crl.M.C.No.1870 of 2011 -: 5 :- tally but, that was after comparison with the signature in the complaint. Now after comparison of the specimen signatures with the disputed signatures learned Magistrate though for the purpose of deciding interim custody of the vehicle has concluded that the signatures appear to be the same. 5. I must also bear in mind that notwithstanding the fact that petitioner was the original registered owner of the vehicle, second respondent who claims ownership and possession of the vehicle purchased it from an authorised dealer of Maruti vehicles (BRD Car World). It cannot prima facie be said that second respondent has acted in collusion with any of the accused in the case (this observation is made only for the disposal of this proceeding) for, I stated that he purchased the vehicle from the authorised dealer on payment of its value (`.1,80,000/-) as revealed from the documents produced in the trial court. Though, subsequently he has also obtained the registration of the vehicle in his name. 6. Under Sec.451 of the Code of Criminal Procedure what the Court is concerned with is not title of property involved. What this section provides is that the Court may make such order as it thinks for the proper custody of such property pending conclusion of enquiry or trial. In other words what is relevant for Crl.M.C.No.1870 of 2011 -: 6 :- decision is only the proper custody of the property involved. That, having regard to the circumstances which I have stated above, appears to me, to be with the second respondent. I must also bear in mind that it is not as if this Court is pronouncing verdict as to ownership of the vehicle or, as to who is entitled to the possession of the vehicle on conclusion of trial under Sec.452 of the Code. Now, this Court is only concerned with the proper custody of the vehicle. Having considered these aspects in the light of the findings of learned Magistrate I do not find reason to interfere with the impugned order. 7. It is submitted by learned counsel for petitioner that now the vehicle is in the possession of petitioner and that possession may be allowed to continue until conclusion of the trial. In the view I have taken above, there is no reason why having found that second respondent is the proper person to be in custody of the vehicle such a direction should be made. Parties are to follow the order passed by the learned Magistrate as confirmed by this Court. 8. It is then pointed out by learned counsel for petitioner that the condition imposed by the learned Magistrate is to execute bond for `.3,00,000/- with two solvent sureties. Learned counsel raises the apprehension that if the vehicle is disposed of Crl.M.C.No.1870 of 2011 -: 7 :- by the second respondent before conclusion of trial, petitioner will be put to much loss and injury. I am inclined to interfere in that matter. Having regard to the circumstances, it is only proper that second respondent shall produce bank guarantee for `.3,00,000/- (instead of executing bond). 9. It is seen that learned Magistrate has not imposed any further conditions on the second respondent. Since the criminal court is not deciding upon ownership of the vehicle and since the order is passed under Sec.451 of the Code, release of the vehicle to the second respondent has to be subject to conditions. Since learned Magistrate has not impose conditions it is necessary for this Court to impose appropriate condition. This criminal miscellaneous case is disposed of in the following lines: (i) While the order of learned Magistrate allowing C.M.P.No.12656 of 2010 and dismissing C.M.P.No.12796 of 2010 is not been interfered with, the following conditions are imposed on the second respondent. (a) Instead of executing bond for `.3,00,000/- with sureties, the second respondent shall produce bank guarantee for `.3,00,000/- (Rupees Three Lakhs Only) before the learned Magistrate for appropriate period as Crl.M.C.No.1870 of 2011 -: 8 :- learned Magistrate may direct. (b) Petitioner shall produce vehicle before learned Magistrate as and when directed on the second respondent producing the bank guarantee. (c) On release of the vehicle to the second respondent he shall be bound by the following conditions: (i) Second respondent shall use the vehicle only in accordance with valid vehicular documents. (ii) Second respondent shall not until learned Magistrate otherwise passed orders regarding possession of the vehicle dispose of the vehicle in any manner whatsoever or put the vehicle in the possession of third parties. (iii) Second respondent shall produce the vehicle as and when directed by the learned Magistrate before the said Court in the same condition it is taken delivery. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-