IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 Crl.MC.No. 4803 of 2010() ------------------------------------ CMP.4841/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL CRIME NO. 865/2010 OF ATTINGAL POLICE STATION. .................... PETITIONER(S): ----------------------- K.B.REGHUNATHAN, S/O.BHASKARAN, KALLIDAMATHAYIL BHAVANAM, THEVALLICHIRAYIL MURI, KOLLAM VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT. BY ADV. SRI.B.RENJITHKUMAR RESPONDENT(S): --------------------------- 1. SUB INSPECTOR OF POLICE, ATTINGAL POLICE STATION, THIRUVANANTHAPURAM DISTRICT-695 101. 2. SHAMSUDEEN, S/O.SHAHUL HAMEED, AGED 59 YEARS, JASMINE MANZIL, ATTINGAL, THIRUVANANTHAPURAM DIST.-695 101. R1 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR R2 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.4803 of 2010 --------------------------------------- Dated this 14th day of January, 2011 ORDER Dispute is regarding interim custody of a mini bus bearing registration No.KL-2M-5163 of which it is not disputed, respondent No.2 is the registered owner and over which petitioner claims ownership right as per Annexure-3, sale agreement dated 12.10.2009. Respondent No.2 filed private complaint before Judicial First Class Magistrate, Attingal alleging that the said vehicle was subjected theft by petitioner and one Babu. That complaint was forwarded to the Attingal police for investigation. The police registered a case and in the course of investigation seized the vehicle from the petitioner. Petitioner and respondent No.2 filed applications for interim custody of the said vehicle. Learned Magistrate disposed of the said applications by a common order allowing interim custody with respondent No.2. Petitioner challenged that order in this court in Crl.M.C.No.3103 of 2010 and by Annexure-A6, order this court set aside the common order and directed learned Magistrate to have a fresh consideration of entire aspects of the matter. Thereafter petitioner gave evidence as PW1 and examined PW2, Crl.M.C.No.4803 of 2010 -: 2 :- one of the witnesses in Annexure-3, agreement for sale. Petitioner produced Annexures-1 to 7. Respondent No.2 gave evidence as RW1 and produced Exts.R1 to R3. Learned Magistrate considered the matter afresh, was impressed by the plea raised by respondent No.2 and also considering that respondent No.2 is the registered owner of the vehicle granted interim custody of the vehicle to respondent No.2. That order is under challenge in this proceeding. Learned counsel for petitioner contends that the order is illegal in that various contentions raised by petitioner has not been considered by the learned Magistrate in the correct perspective. According to the learned counsel circumstances of the case negatived plea of theft. Police seized the vehicle from the petitioner and hence it ought to have been returned to him until disposal of the proceedings. Learned counsel for respondent No.2 contends that Exts.R1 and R2 show that respondent No.2 continues to be the registered owner of the vehicle, the route permit of the bus is in the name of respondent No.2 and in the circumstances only respondent No.2 could ply the vehicle lawfully. Learned counsel therefore requested that no interference be made with the impugned order. Crl.M.C.No.4803 of 2010 -: 3 :- 2. As I stated, version of respondent No.2 is that petitioner and Babu in furtherance of their common intention committed theft of his vehicle from his possession. Annexure-A3 is the agreement set up by petitioner to prove that respondent No.2 had sold the vehicle to him on 12.10.2009. In Annexure-A3, agreement it is stated that the vehicle is valued at `.3,50,000/- and `.2,25,000/- was paid at the time of transaction. One Ansari who is said to be agent of the financier is an attester in Annexure- A3. Annexure-A2 is the photocopy of registration certificate of the vehicle admittedly standing in the name of respondent No.2. Annexure-A4 series are photocopies of certain receipts for payment of instalments to the financier allegedly made by petitioner but, admittedly in the name of respondent No.2. Annexure-A5 is a notice dated 12.07.2010 issued on behalf of respondent No.2 to Ansari, agent of the financier where it is stated that in connection with the money transaction petitioner had with Babu, the latter (who was the driver of respondent No.2) handed over possession of the vehicle to the petitioner and that he suspected that all the documents and other signed papers he had entrusted with Ansari were given by the latter to the petitioner. Accordingly Ansari was informed that in case the said Crl.M.C.No.4803 of 2010 -: 4 :- documents are given to the petitioner, respondent No.2 will be constrained to initiate legal action against Ansari and others. Petitioner gave evidence as PW1 and examined one of the attestors in Annexure-A3 as PW2. They stated about the alleged sale of vehicle to the petitioner as per Annexure-A3. Contra evidence is given by respondent No.2 as RW1. He produced Exts.R1 to R3. Ext.R1 is the registration particulars and Ext.R2, insurance certificate issued in favour of respondent No.2 in respect of the vehicle in question. Ext.R3 is the medical certificate produced by respondent No.2 to show that during the time Annexure-A3, agreement is said to be executed he was ill and was undergoing treatment. 3. Learned counsel for petitioner has contended that at this stage, what is required is to find who is entitled to interim custody of the vehicle and so far as the vehicle was admittedly seized from the possession of petitioner and until the offence alleged with respect to the vehicle is proved, possession of petitioner may be protected and the vehicle may be given to him by way of interim custody. Learned counsel for respondent No.2 contended that since registered owner of the vehicle is respondent No.2 as per the documents, the route permit being in Crl.M.C.No.4803 of 2010 -: 5 :- his name, he is the only person entitled to ply the vehicle and hence the person entitled to take custody of the vehicle at this stage is respondent No.2. 4. Annexure-A3 is not admitted by respondent No.2. Though, learned counsel has read over to me deposition of respondent No.2 as RW1, I do not find that respondent No.2 was specifically confronted with Annexure-A3, agreement inviting his attention to the signature therein and inviting his response whether Annexure-A3, agreement was executed by him. On the other hand, stand taken up by respondent No.2 is that he had given signed papers to the financier in connection with the loan transaction and going by Annexure-A5, notice dated 12.07.2010 issued to Ansari, agent of the financier respondent No.2 expressed his apprehension that Ansari might hand over those documents to the petitioner. That being the stand of respondent No.2, I am afraid no conclusion even prima facie is possible at this stage that Annexure-A3, agreement is executed between respondent No.2 and the petitioner. That is a matter which has to be enquired into later if such a situation arises in the course of proceedings. Crl.M.C.No.4803 of 2010 -: 6 :- 5. No doubt, Annexure-A4 series, receipts for payment of installments to the financier are produced by the petitioner. But I must bear in mind that the receipts are in the name of respondent No.2 and as seen from Annexure-A5, respondent No.2 has a case that Ansari, agent of financier was colluding with petitioner. In the circumstance much reliance cannot be placed on Annexure-A4 series for the time being. 6. Fact remained that respondent No.2 is the registered owner of the vehicle. It is also not disputed that pursuant to Annexure-A3, agreement, no change was made in the registration of the vehicle. In the absence of acceptable evidence to the contra, registration certificate must stand and indicates ownership of the vehicle though, being a movable property delivery of possession and passing of consideration are sufficient to pass title. I must also bear in mind that insurance certificate as well as route permit are in the name of respondent No.2 and hence the person who can lawfully ply the vehicle is respondent No.2. If any offence is committed in the matter of violation of route permit, person liable for that is respondent No.2. In these circumstances I am inclined to think that respondent No.2 is entitled to interim custody as rightly found by learned Crl.M.C.No.4803 of 2010 -: 7 :- Magistrate. No interference is required. This criminal miscellaneous case fails. It is dismissed. Respondent No.1, investigating officer shall complete the investigation as early as possible and submit final report. I make it clear that in case leanred Magistrate is required to pass any order under Sec.452 of the Code, learned Magistrate shall consider the claims set up by contesting parties on merit notwithstanding the observations contained in the impugned order or, any observation or finding in the order of this court. (THOMAS P JOSEPH, JUDGE) Sbna/-