IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 Crl.MC.No. 814 of 2010() ----------------------------------- CMP.NO. 178/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT, THALASSERY CRIME NO.273/2009 OF THALASSERY POLICE STATION .................... PETITIONER(S): PETITIONER ------------------------------------------ KRISHNANKUTTY, AGED 62 YEARS, S/O.GOPALAN, 9/187,KARAKKUNNU HOUSE,NOOLPUZHA, NAIKATTY P.O, SULTHAN BATHERY, WAYANAD. BY ADV. SRI.JIJO PAUL RESPONDENT(S): RESPONDENTS --------------------------------------------------- 1. PRASAD.N.N, S/O.RAJAPPAN, NEDUMKUZHIYIL HOUSE, P.O PERIYA, VIA MANANTHAVADY,WAYANAD DISTRICT. 2. SHAIMA.A.M, W/O.VALSAN, ALAKKANDY HOUSE, P.O MANANTHAVADY, WAYANAD DISTRICT. 3. PRAKASAN,S/O.PEETHAMBARAN, 11/167, KAYYANIKKAL HOUSE, P.O MANALVAYAL, POOTHADY, WAYANAD. 4. STATION HOUSE OFFICER, THALASSERY POLICE STATION, THALASSERY,THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 5. SHRIRAM TRANSPORT FINANCE CO.LTD., REGD.OFFICE AT NO.123, ANGAPPA, NAICKEN STREET, CHENNAI, REPRESENTED BY POWER OF ATTORNEY HOLDER K.DASAN,S/O.KRISHNAN,AGED 61 YEARS,CONSULTANT OF THE COMPANY AT KANNUR BRANCH 600 001,BRANCH OFFICE AT 4TH FLOOR HYPER CENTRE, NEW RAILWAY ST.RD,THALASSERY. 6. M/S.SINGVI SYNDICATE,CHENNAI,NO.49, IRULAPPAN STREET,SOWCARPET,CHENNAI REP.BY POWER OF ATTORNEY HOLDER M.BASHEER,S/O.ABOO, KAYYALACKAL HOUSE,BEENACHI POST,SULTHAN BATHERI, WAYANAD, ERNAKULAM, KOCHI-31. 7. JOINT R.T.O.,KANHANGAD. R4 & R7 BY PUBLIC PROSECUTOR SRI. MANU R5 BY ADV. SRI.RAJESH NAMBIAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.814 of 2010 --------------------------------------- Dated this 27th day of May, 2011 ORDER The fight is for interim custody of a vehicle which, it is claimed and alleged is the subject matter of two hire purchase agreements. Fifth respondent filed a complaint before learned Judicial First Class Magistrate, Thalassery against respondents 1 to 3 alleging offences punishable under Secs.420, 424 and 120B r/w.Sec.34 of the Indian Penal Code. Case is that it had given finance to the first respondent for purchase of the vehicle in question. As against terms and conditions of the hire purchase agreement first respondent, without the knowledge and consent of the fifth respondent transferred the vehicle to one Ummer who, in turn transferred it to third respondent. Second respondent is said to be the guarantor in the hire purchase transaction. Fifth respondent alleged in the complaint that respondents 1 to 3 transferred the vehicle without its knowledge and consent with intend to cheat it. In the course of investigation the vehicle was seized from the possession of petitioner. He claimed to have purchased the vehicle from the third respondent on the strength of a finance (allegedly) arranged by the sixth respondent. After seizure of the vehicle, petitions were filed by Crl.M.C.No.814 of 2010 -: 2 :- the petitioner and respondent Nos.1, 5 and 6 (6th respondent being the (alleged) financier of petitioner) for custody of the vehicle. During the course of enquiry petitioner withdraw his petition for interim custody (according to learned counsel since his financier, the sixth respondent was vigorously prosecuting a petition for interim custody of the vehicle which if allowed would have enured to the benefit of the petitioner). Learned Additional Chief Judicial Magistrate, Thalassery holding charge of learned Judicial First Class Magistrate, Thalassery by Annexure-B, order came to the conclusion that the fifth respondent is more suited for custody of the vehicle. Accordingly, it was directed that the vehicle will be released to the fifth respondent on executing bond and subject to conditions stipulated in Annexure-B, order. Thereafter petitioner filed Annexure-C, application before learned Judicial First Class Magistrate for interim custody of the vehicle claiming that it was on the belief that his financier, the sixth respondent would prosecute the petition it had filed that he happened to withdraw his petition. Learned Magistrate by Annexure-D, order dismissed Annexure-C, application. Annexures-B and D, orders are under challenge in this proceeding. Crl.M.C.No.814 of 2010 -: 3 :- 2. I have heard learned counsel for petitioner, fifth respondent and the learned Public Prosecutor. Learned counsel for petitioner contends that learned Magistrate had in Annexure- B, order observed in paragraph 14 that the person who is able to use the vehicle was the person from whom it was seized (ie. petitioner) but, he is not before the Court and has withdrawn the petition and in the circumstances interim custody of the vehicle has to be given to the fifth respondent (being the first financier) who had advanced a huge amount to the first respondent as loan for purchase of the vehicle on hypothecation. It is also pointed out by learned counsel that nowhere in the registration certificate there is any endorsement regarding the (alleged) hire purchase transaction between respondent Nos.1 and 5 and in the circumstance petitioner who was in custody of the vehicle and had the registration in his favour and other vehicular documents is a bonafide purchaser whose possession of the vehicle has to be protected. Learned counsel submitted that in the circumstance petitioner may be permitted to prosecute the petition he has withdrawn under the impression that his financier, the sixth respondent would prosecute the petition. Learned counsel for fifth respondent submits that the RC book produced by the Crl.M.C.No.814 of 2010 -: 4 :- petitioner is not the original one, it is the result of forgery and it has so been observed by the learned Magistrate in paragraph 13 of Annexure-B, order. 3. So far as Annexure-D, order is concerned I am not inclined to think that the said order requires interference Because, Annexure-B, order is passed disposing of the petitions on merit. Entertaining Annexure-C, application for interim custody of the vehicle would amount to a reconsideration of Annexure-B, order which amounts to a review which is prohibited under Sec.362 of the Code of Criminal Procedure. Therefore learned Magistrate is justified in dismissing Annexure-C, application by Annexure-D, order. 4. What remained is whether Annexure-B, order requires interference and petitioner must given an opportunity to prosecute the petition he has already withdrawn whatever be the reason for the withdrawal. It is true that in paragraph 14, learned Magistrate observed that since the vehicle was seized from the possession of petitioner, he is the person able to use the vehicle and in the absence of any request from him for interim custody the next person suited to have interim custody of the vehicle is the fifth respondent, the first financier. But, it is seen Crl.M.C.No.814 of 2010 -: 5 :- from paragraph 13 that learned Magistrate has also observed that the RC produced by the first respondent who (allegedly) availed loan from the fifth respondent is the original RC and there was no dispute regarding that. But the other RC (produced by sixth respondent, financier of petitioner) appeared to be a forged one though, learned Magistrate was not sure about that. It is seen from paragraph 13 that learned Magistrate was not very much impressed by the RC produced by the sixth respondent, financier of petitioner. There could apparently be no two RC's or a vehicle. If that be so, the R.C produced by the financier of petitioner and other vehicular documents on which petitioner relies comes in suspicious circumstances and the genuineness of which the learned Magistrate has to decide in the course of trial. 5. The fact remained that petitioner had withdrawn his request for interim custody whatever be the reason thereof. I must also bear in mind that the sixth respondent has not challenged the impugned common order (Annexure-B). Learned Magistrate in the circumstances found that the fifth respondent is more suited to be in interim custody of the vehicle. I must bear in mind that what is now under consideration is who could be Crl.M.C.No.814 of 2010 -: 6 :- given interim custody of the vehicle and dispute regarding title is not required to be resolved in this proceeding. I do not find reason to interfere. But, it is directed that the fifth respondent shall not dispose of in any manner or transfer possession of the vehicle during the period Annexure-B, order remain in force. This criminal miscellaneous case is dismissed with the above direction. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge