IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 Crl.MC.No. 3 of 2011() ------------------------------- CMP.3043/2010 OF JUDICIAL 1 CLASS MAGISTRATE -II, PEERMADE CRIME NO.202/2010 OF VANDIPERIYAR POLICE STATION .................... PETITIONER(S): 2ND ACCUSED ---------------------------------------------- ANIL KUMAR, S/O.C.P.K.MENON, THOPPIL HOUSE, KANNANALLOOR KARA, THZHUTHALA VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT. BY ADV. SRI.G.BHAGAVAT SINGH RESPONDENTS/STATE & DEFACTO COMPLAINANT: ---------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. VASANTHAMALA, W/O. CHURULINATHAN, PUTHUVAL, PUTHUKADU KARA, MANJUMALA VILLAGE, PEERMADE TALUK. * ADDL.R3 IMPLEADED * ADDL.R3: MANAGING DIRECTOR, SREERAM TRANSPORT FINANCE CO:LTD, REGISTERED OFFICE, 123, ANGAPPA NAICKEN STRRET, CHENNAI- 600 001 * ADDL.R3 IMPLEADED AS PER ORDER DATED 12/01/2011 IN CRL.MA.NO.92/2011 IN CRL.M.C.NO.3/2011. R1 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR R2 BY ADV. SRI.N.K.SHYJU R3 BY ADV.SRI.RAJESH NAMBIAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.3 of 2011 --------------------------------------- Dated this 11th day of February, 2011 ORDER Annexure-VIII, order passed by the learned Judicial First Class Magistrate-II, Peermade on November 11, 2010 on C.M.P.No.3043 of 2010 in Crime No.202 of 2010 of Vandiperiyar Police Station is under challenge at the instance of petitioner/second accused. Prosecution case is that on 29.03.2008 second respondent, the registered owner who had a hire purchase agreement in respect of the vehicle in question with the third respondent sold the vehicle to the first accused who agreed to discharge liability of the third respondent. The second respondent alleged that first respondent, in violation of the terms and conditions of that agreement attempted to sell the vehicle to the petitioner/second accused and thereby petitioner and first accused committed offence punishable under Secs.420 and 427 r/w Sec.34 of the Penal Code. The police seized the vehicle and now it is in the custody of the Court. Petitioner/second accused in C.M.P.No.3043 of 2010 sought interim custody of the vehicle. Learned Magistrate dismissed that application observing that there is no material on record to show that petitioner/second accused was in possession of the vehicle. It is contended by learned counsel that order passed by the learned Magistrate is not correct and that there are sufficient Crl.M.C.No.3 of 2011 -: 2 :- materials to show that the vehicle was seized from the possession of petitioner. I have learned counsel for third respondent as well. 2. Learned counsel has brought to my attention Annexure-III, agreement said to be executed between petitioner and first accused. Petitioner also produced other documents to show payments of instalments payable to the financier, the third instalment (receipts are issued in the name of the second respondent). It would appear that learned Magistrate has not referred to Annexure-III, agreement allegedly executed between petitioner and first accused while holding that there is no material to show that petitioner was in possession of the vehicle at the time of seizure. However, I do not express any opinion on the issue in view of the order I propose to pass in this proceeding . 3. It is seen from C.M.P.No.3043 of 2010 filed by petitioner that neither the additional third respondent who was impleaded in this proceeding nor the second respondent and first accused were made parties. When interim custody of vehicle is sought it was incumbent upon petitioner to implead or atleast give notice to all the parties concerned. Since that it not done it is not possible for me to dispose of the petition at this stage deciding the question as to who is entitled to possession of the vehicle. Crl.M.C.No.3 of 2011 -: 3 :- 4. According to learned counsel for third respondent substantial amount is due from the second respondent based on the hire purchase agreement. Learned counsel expressed the apprehension that if the vehicle is given to the custody of petitioner, the latter being not a party to the hypothecation agreement it may not be possible to the additional third respondent to proceed with arbitration proceeding against petitioner and seek relief. In case learned Magistrate decides to give interim custody of the vehicle to the petitioner, it is open to the learned Magistrate to impose appropriate condition safeguarding interest of additional third respondent such as directing petitioner to produce bank guarantee for the amount due to the third respondent as per hire purchase agreement and permitting third respondent to realise the amount from the bank guarantee. However I am not issuing any direction as to in what manner learned Magistrate has to dispose of the petition. Having regard to the circumstances stated above, Annexure-VIII, order is liable to be interfered. Resultantly this petition is allowed. Annexure-VIII, order is set aside. C.M.P.No.3043 of 2010 is remitted to the court of learned Judicial First Class Magistrate-II, Peermade for fresh decision after impleading respondent Nos.2 and 3 and the first accused in the petition and after hearing all the parties concerned Crl.M.C.No.3 of 2011 -: 4 :- bearing in mind that keeping the vehicle idle in Court custody will not be helpful to any of the parties. I also make it clear that if any claim is made by any of the parties interested in the vehicle, those claims shall also decided by the learned Magistrate along with C.M.P.No.3043 of 2010. (THOMAS P JOSEPH, JUDGE) Sbna/-