1 33.11-apl IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. CRIMINAL APPLICATION NO.33 OF 2011 Deutsche Bank A.G. ... Applicant. V/s. State of Maharashtra and another. ... Respondents. Manohar Ramsinghani with Vikash Kumar i/b. Anil T. Agarwal for the applicant. Ms.A.T.Jhaveri, APP for the State. Prashant Kulkarni for respondent No.2. CORAM: B.R.GAVAI, J. DATED : 17th June 2011. P.C. : Rule. Rule is made returnable forthwith. Heard by consent of parties. 2. By way of present application, the applicant challenges the order dated 16th December 2010 passed by the learned Additional Chief Metropolitan Magistrate, Esplanade Court, Mumbai to the effect that it directs the delivery of Honda Accord car having registered No.MH-03-AR-832 to respondent No.2. On the basis of the complaint made by the petitioner that the respondent No. 2 has misappropriated huge amounts from the bank, an F.I.R. came to be registered by the Economic Offences Wing of the Mumbai Police. Upon investigation a 2 33.11-apl chargesheet has also been filed against respondent No.2. During the course of investigation, the investigating agency has seized two cars, one Honda Accord referred to hereinabove and the other one is Skoda-Fabia bearing registered No.MH-03-AM-9789. The applicant contending that the said cars were purchased out of the funds which have been misappropriated by respondent No.2 applied for release of the said vehicles upon Superatnama. The said application was opposed by respondent No.2 contending that the said cars were purchased by him out of his own funds. The investigating agency granted no objection to the application of the applicant. The learned Magistrate, vide impugned order dated 16th December 2010, granted release of Skoda-Fabia to the complainant- applicant and Honda Accord in favour of respondent No.2. Being aggrieved thereby present application is filed. 3. Learned counsel for the applicant submits that prima facie there is sufficient material to show that both the cars have been purchased out the amount misappropriated by respondent No.2. He submits that entire statement reveals that the payments for purchase of cars were made out of the funds of the applicant- Bank. He, therefore, submits that learned Magistrate has grossly erred in directing release of one of the cars in favour of respondent No.2 4. Learned counsel for respondent No.2 vehemently opposed this application. He submits that since respondent No.2 is the registered owner of the vehicle, under section 457 of Cr.P.C. he is the only person who is entitled to release of the vehicle on Superatnama. 3 33.11-apl Learned counsel relied upon the judgment of the learned single Judge in the case of ICICI Bank Ltd. v. State of Maharashtra, 2008 (1) Bom.C.R. (Cri.) 358 in support of the proposition that at this stage it cannot be said that the money is siphoned off by respondent No.2. 5. From the material placed on record, it would clearly reveal that the investigating agency in its report placed before the Magistrate has given details as to how the purchase of the said cars is, prima facie; made out of the funds which is alleged to be misappropriated by respondent No.2. The words used in section 457 “person entitled to the possession thereof” cannot be given narrower meaning that it has to be only in favour of the person who is a registered owner. During the investigation, if the investigating agency has prima facie found that the vehicles have been purchased out of the money which is allegedly misappropriated from the funds of the applicant- Bank, I find that the applicant would also be a person who is entitled to possession of the vehicle. 6. In so far as reliance placed on the judgment of the learned single Judge in the case of ICICI Bank Ltd. (supra) is concerned, no doubt, that at this stage it cannot be conclusively said that the amount has been misappropriated by respondent No.2. However, the said case arose out the freezing of the amount and, as such, the Court observed that the amounts frozen are lying in a national bank and the money is not an idle investment and is in circulation in economy. The same is not the case here. The property in question is vehicle. The 4 33.11-apl Apex Court in the case of Sunderbai Ambalal Desai v. State of Gujarat, (2002) 10 SCC 283, has held that if a vehicle is seized in a crime, it is in the interest of justice, to release the same on supurtnama by imposing certain conditions in order to avoid rusting of the vehicle. It is, therefore, appropriate that the vehicle should be released on Superatnama otherwise there is possibility of the same being rusted and rendered useless. 7. In view of the positive report of the investigating agency, I find that the applicant is entitled to release of both the vehicles on Superatnama. (i) In that view of the matter paragraph-2 of the impugned order is quashed and set aside. Both vehicles are directed to be released on Superatnama in favour of the applicant- Bank on their furnishing bond in the sum of Rs.20 lakh. (ii) It is clarified that the Bank shall use the said vehicles only for the purpose of the Bank or its officers. (iii) That the applicant- Bank shall not create any third party rights or dispose of the said vehicles during the pendency of the proceedings before the learned Magistrate. (iv) That the applicant- Bank shall file an undertaking before the Magistrate that they will produce the vehicle as and when directed by the Magistrate. 5 33.11-apl 8. Rule is made absolute in the aforesaid terms with no order as to costs. 9. It is, however, clarified that this Court has not considered the merits of the matter and none of the observations made herein above shall be taken into consideration by the learned trial Court at the stage of the trial and that the case would be decided on its own merits on the basis of evidence that will be led before it. Needless to mention that the final order regarding disbursement of the said vehicles would be passed at the stage of conclusion of the trial. (B.R.GAVAI, J.)