Madhya Pradesh High Court
Au Small Finance Bank Ltd. Through Its ... vs The State Of Madhya Pradesh on 4 July, 2023
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 4th OF JULY, 2023
CRIMINAL REVISION No. 871 of 2022
BETWEEN:-
AU SMALL FINANCE BANK LTD.
19-A DHULESHWAR GARDEN, AJMER ROAD,
C-SCHEME, JAIPUR (RAJASTHAN)
BRANCH OFFICE- 6TH FLOOR DHAN TRIDENT BUILDING
NEAR SATYA SAI SQUARE, VIJAY NAGAR, INDORE (M.P.)
THROUGH IT'S AUTHORIZED REPRESENTATIVE
MR. GAURAV NAIK S/O PRASANNA NAIK, INDORE (M.P.)
(BANK/VEHICLE FINANCER)
.....PETITIONER
(BY SHRI DHIRAJ DHAIGUDE - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION BERCHA,
SHAJAPUR (M.P.)
2. IQBAL S/O DILAWAR KHAN
R/O: BHARAT COLONY, JAWRA, 18 STATION ROAD,
DISTRICT RATLAM (M.P.)
.....RESPONDENTS
(BY SHRI SUHAS PUNDLIK - GOVERNMENT ADVOCATE)
-----------------------------------------------------------------------------------------------------
This criminal revision coming on for hearing this day, the court
passed the following:
2
ORDER
1/ Petitioner has filed this Criminal Revision under Section 397 of Cr.P.C. being aggrieved by the order dated 11.1.2022 passed by the Special Judge (NDPS Act), Shajapur in NDPS Case No.9/2021, whereby an application under Section 451 and 457 of Cr.P.C. for Supurdgi of the seized vehicle bearing registration No. MP09-CX-6925 has been rejected.
2/ The facts in brief are that on 7.2.2021 police got discreet information from the informant regarding the illegal transportation of contraband in a black colour Hyundai Verna car bearing registration No.MP09-CX-6925. Acting upon the said information, police party reached on the spot and intercepted the aforesaid vehicle and during the search 7 k.g. opium, which was kept in 14 boxes, was recovered from the possession of the accused Iqbal. Accordingly contraband and the aforesaid vehicle was seized by the police. Accordingly offence has been registered against the accused.
3/ Petitioner has preferred an application under Section 451 and 457 of Cr.P.C. before the trial Court for Supurdgi of the aforesaid vehicle. After hearing both the parties, trial Court has rejected the said application by observing that accused has paid 28 installments and if the future installments are paid by the accused, in that condition no 3 financial loss would be caused to the petitioner. Being aggrieved by the aforesaid order, petitioner has preferred this revision.
4/ Learned counsel for the petitioner submitted that the accused Iqbal Khan has availed vehicle loan of Rs.10 Lakhs entering into written agreement from the petitioner-bank in the month of January 2018, having repayment terms of total 51 EMI of Rs.25,846/- each. In the very beginning borrower Iqbal Khan made regular payments towards the said loan, but after 6 months he is continuously defaulting and committed irregularities in repayment of EMI. The said vehicle was also moved from its original place to avoid any seizure. Therefore, petitioner-Bank is having first charge on the said vehicle and is entitled to take custody of the vehicle until the entire loan is paid by the borrower. The learned trial Court has dismissed the petitioner's application without considering the factual and legal position of the case. If the vehicle is parked in an open area, it will impact the condition of the vehicle and it will deteriorate further. Hence, he prays that the impugned order be set aside and the said vehicle be given on Supurdgi during the pendency of the trial to the petitioner.
5/ Per contra, learned counsel for the respondent/State opposes the prayer made by the petitioner by submitting that the petitioner's vehicle was found to be involved in a serious crime registered under the NDPS Act and if the vehicle in question is handed over to the petitioner, the same may be sold out by the petitioner. As per 4 Section 52(A)(2) of NDPS Act, the aforesaid vehicle cannot be given on Supurdginama. Hence this petition deserves to be rejected.
6/ I have heard the rival submissions made by learned counsel for both the parties and perused the record.
7/ It is not disputed that the petitioner-bank has financed the car bearing registration No. MP09-CX-6925. The Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in (2002) 10 SCC 283 has held that the articles seized in any criminal case are not to be kept for a long period at police station and in any case for not more than 15 days to one month and the owner of the article should not suffer because of its remaining unused or misappropriated at police station.
8/ Undisputedly, the condition of the vehicle is deteriorating day-by-day as the same is lying open to sky and under the heat of the sun and rains. The vehicle is loosing its value day-by-day due to lack of maintenance, natural wear and tear and passing of time. The fact regarding ownership of the applicant on the said vehicle is not contested by the respondent. Vehicle is lying idle since long in the police station. No need has been shown by the respondent/State that the said vehicle is needed during the trial and there is no likelihood of the earlier conclusion of the trial.
59/ Coordinate bench of this Court in the case of Surendra Dhakad Vs. The State of M.P. vide order dated 13.1.2022 passed in M.Cr.C. No.38089/2021 has held as under:-
"14. Since the provisions of the Cr.P.C. including Section 451/457 have been expressly made applicable by virtue of Section 36-C of the NDPS Act to the proceedings before the Special Court (NDPS) and there is no express bar contained in the NDPS Act for grant of interim custody as contained in Section 52C of the Indian Forest Act, 1927, as amended by the M.P. Amendment Act, 1983, therefore, merely on the ground that the vehicle is liable to confiscation under Section 60 of the NDPS Act, it cannot be held that once the vehicle is seized for commission of offence under the NDPS Act, interim custody cannot be granted, as jurisdiction of criminal court has to be construed strictly unless expressly excluded."
10/ From perusal of the documents filed by the petitioner, it appears that the accused Iqbal Khan has availed vehicle loan of Rs.10 Lakhs entering into written agreement from the petitioner-Bank in January 2018 having repayment terms of total 51 EMIs of Rs.25,846/-, but after making regular payment towards the said loan for a period of 6 months, it has been found that there is continuous default and irregularities in the repayment of EMIs and at the time of filing this revision petition, the EMIs are overdue and the outstanding amount is Rs.3,45,000/-. Therefore, petitioner-bank is having first charge on the said vehicle and the petitioner is entitled to take custody of the vehicle, 6 until the entire loan amount is paid by the borrower/accused Iqbal Khan because the vehicle is also under hypothecation of the bank and it cannot be sold/transferred without taking NOC from the Bank.
11/ In view of the above, I deem it appropriate to allow interim custody of the said vehicle to the applicant on Supurdnama.
12/ Considering the aforesaid facts and circumstances of the case, I am of the view that it is a fit case to release the Hyundai Verna car bearing registration No.MP09-CX-6925 to the custody of the petitioner. Therefore, the impugned order dated 11.1.2022 passed by the trial Court is hereby set aside and this revision is allowed and it is directed that the aforesaid vehicle be released on Supurdgi to the custody of the petitioner upon furnishing Supurdginama of Rs.10,00,000/- (Rs. Ten Lakhs only) in the like amount to the satisfaction of the Court concerned subject to the following conditions:-
(i) The petitioner shall not change the original nature/colour of the vehicle.
(ii) The petitioner will not alienate or transfer the said vehicle to any third party or shall not create any interest of third party.
(iii) In case, in the opinion of the Court the petitioner does not produce the vehicle in the condition in which it was given in his possession, the petitioner shall pay the amount which would be determined by the court.7
(iv) In case of confiscation of the vehicle by the competent authority the petitioner shall produce the vehicle or the cost in lieu thereof as determined by the competent authority at his own risk and cost as and when directed by the competent authority.
13/ With the aforesaid directions, this Criminal Revision stands disposed of.
Certified copy as per rules.
(ANIL VERMA) JUDGE Trilok/-
Digitally signed by TRILOK SINGH SAVNERDate: 2023.07.06 10:33:47 +05'30'