Kerala High Court
Baiju T.D vs Stateof Keralathrough The Sub ... on 17 February, 2017
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
THURSDAY, THE 9TH DAY OF NOVEMBER 2017/18TH KARTHIKA, 1939
Crl.MC.No. 2151 of 2017 ()
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CRIME NO. 338/2017 OF VAIKOM POLICE STATION , KOTTAYAM
PETITIONER/ACCUSED A1:
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BAIJU T.D.,AGED 47 YEARS, S/O.DASAN, THARAYIL HOUSE,
PATTANAKKAD P.O.,CHERTHALA, ALAPPUZHA.
BYADV. SRI.P.A.ABHILASH
RESPONDENTS/COMPLAINANT:
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1. STATEOF KERALATHROUGH THE SUB INSPECTOR OF POLICE,
VAIKOM POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2. BIJU KUMAR, S/O.THANKAPPAN, KUMARAMKOTTU HOUSE,
POTHIKARA, VADAYAR VILLAGE, THALAYOLAPPARAMBU, KOTTAYAM.
ADDL.R3 IMPLEADED:
ADDL.R3. JOSEPH M.F., S/O.FRANCIS, MANISSERY HOUSE,
POTHI, VADAYAR, THALAYOLAPPARAMBU P.O.,
KOTTAYAM DISTRICT.
ADDL.R3 IS IMPLEADED AS PER ORDER DATED16.8.17 IN CRL.MA NO.9055/17 IN
CRL.MC.NO.2151/17.
R2 & ADDL. R3 BY ADVS. SMT.V.H.JASMINE
SRI.JESWIN P.VARGHESE
R1 BY PUBLIC PROSECUTOR SRI.RAMESH CHAND
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-11-2017,
ALONG WITH CRL.MC. NO.5350/2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.MC.No. 2151 of 2017 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE A1- TRUE COPY OF THE REGISTRATION CERTIFICATE OF BUS BEARING
REGISTRATION NO.KL-32F-4788.
ANNEXURE A2- TRUE COPY OF THE ACCOUNT STATEMENT.
ANNEXURE A3- TRUE COPY OF THE FIRST INFORMATION REPORT REGISTERED IN
CRIME NO.338/2017 OF VAIKOM POLICE STATION.
ANNEXURE A4- TRUE COPY OF THE FIRST INFORMATION STATEMENT GIVEN BY THE
DE-FACTO COMPLAINANT.
ANNEXURE A5- TRUE COPY OF THE BAIL ORDER IN CRL.M.P.NO.278/2017 DATED
17/02/2017 PASSED BY THE SESSIONS COURT,KOTTAYAM.
ANNEXURE A6- TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE
SUPERINTENDENT, ALAPPUZHA.
ANNEXURE A7- TRUE COPY OF THE POSTAL RECEIPT.
RESPONDENT(S)' EXHIBITS NIL
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//TRUE COPY//
A.HARIPRASAD, J.
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Crl.M.C. Nos.2151 of 2017
&
5350 of 2017
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Dated this the 9th day of November, 2017
COMMON ORDER
1st accused in Crime No.338 of 2017 of Vaikom Police Station registered under Sections 394, 294(b), 341 and 323 read with Section 34 of the Indian Penal Code, 1860 has approached this Court with these petitions under Section 482 of the Code of Criminal Procedure, 1973 (in short, "Cr.P.C."). Crl.M.C.No.5350 of 2017 is filed by challenging the common order (Annexure-A10) passed by the learned Judicial First Class Magistrate-I, Vaikom on the petitions filed under Section 451 Cr.P.C. by the petitioner and the 2nd respondent for getting interim custody of a bus involved in dispute. Crl.M.C.No.2151 of 2017 is filed by the petitioner/1st accused to quash the first information report (Annexure-A3) in the above crime.
2. Heard the learned counsel for the petitioner and the 2nd respondent. Learned Public Prosecutor is also heard.
3. Case against the petitioner, in short, borne out from Annexure- A2 first information report in Crl.M.C.No.5350 of 2017 (Annexure-A3 in Crl.M.C.No.2151 of 2017) is thus: The incident occurred at 6.15 p.m. on Crl.MC Nos.2151 of 2017 & 5350 of 2017 2 03.02.2017. A bus driven by the defacto complainant, said to be belonging to the 2nd respondent, was waylaid by the petitioner along with other accused. After causing hurt to the defacto complainant, they robbed his purse containing `9,000/- and a mobile phone worth `13,000/-. Thereafter they forcefully captured the vehicle. According to the averments in the first information statement, that was a case of dacoity. Police registered the case as per the statement given by the driver (defacto complainant) of the 2nd respondent.
4. Learned counsel for the petitioner seriously challenged registration of the crime as well as the order passed by the learned Magistrate under Section 451 Cr.P.C. 2nd respondent filed a petition under Section 451 Cr.P.C. for getting interim custody of the vehicle. Learned Magistrate passed an order allowing the petition. That was challenged by the petitioner herein in Crl.M.C.No.3581 of 2017. After considering the matters, a learned Single Judge allowed Crl.M.C.No.3581 of 2017 and directed the Magistrate to reconsider the application filed by 2nd respondent under Section 451 Cr.P.C. taking note of the relevant aspects. Thereafter petitioner filed a petition under Section 451 Cr.P.C. It was considered along with the petition filed by the 2nd respondent and a common order (Annexure-A10 in Crl.M.C.No.5350 of 2017) was passed.
5. Contentions raised by the rival parties can be stated shortly. Crl.MC Nos.2151 of 2017 & 5350 of 2017 3 Admittedly, the petitioner is the registered owner of a tourist bus bearing registration No.KL-32 F-4788. Petitioner has a specific case that he had not sold out the vehicle to anyone. According to him, he entrusted the vehicle to various persons for plying, as he was away at Bangalore in connection with his business. Further admitted fact is that the vehicle was purchased by the petitioner after availing a loan from Corporation Bank, Vayalar Branch. Loan amount was `35 lakhs. It is his case that as he was not able to repay the loan instalments @ `62,200/- per mensem, so he had to entrust the vehicle to various persons and they used to remit the instalments in the bank. It is his further case that the 2nd respondent has no right or legal possession over the vehicle. His ownership has never been divested. Yet another contention of the petitioner is that he has been falsely implicated in the alleged dacoity.
6. Per contra, case of the 2nd respondent is that the bus mentioned above had been sold by the petitioner to one Rijoy after receiving `10 lakhs from him. The liability towards the bank was agreed to be discharged by the purchaser. It is pertinent to note that the bank was not inclined to give permission to register the vehicle in favour of the purchaser unless the entire outstanding liability was cleared. For that reason the petitioner remained to be the registered owner of the vehicle. Rijoy in turn sold the vehicle to one Smibin. It is the case of 2nd respondent that Smibin Crl.MC Nos.2151 of 2017 & 5350 of 2017 4 and Sudheesh were in partnership and they purchased the vehicle jointly and finally Sudheesh sold the vehicle to Eldho Sunny. He in turn sold it to Abdul Harris. Thereafter Abdul Harris sold the vehicle to the 2nd respondent. That is how the 2nd respondent traced title to the vehicle.
7. It is relevant to note that the petitioner has a specific contention that there is no material found out by the prosecution to show that he ever sold the vehicle to Rijoy. No document to that effect was recovered. Further, it is contended by the learned counsel for the petitioner that there is no material to show that Smibin and Sudheesh were partners and they ever purchased the vehicle. These are all factual questions.
8. It is the case of 2nd respondent that after paying `65 lakhs he purchased the vehicle and thereafter he paid the loan instalments, incurring a total expense of `11 lakhs. Learned counsel for the 2nd respondent submitted that there is no outstanding in the loan amount as they were paying regularly the amount due to the bank.
9. Exts.B1 to B4 are the photocopies of sale agreements executed between Rijoy Thomas to Smibin upto that in favour of the 2nd respondent. Genuineness of these documents is seriously disputed by the petitioner. Ext.B6 is the trip sheet book maintained by Maria Rani Tours and Travels showing that the vehicle was used during the relevant period by the persons said to have acquired title over the vehicle. Learned Crl.MC Nos.2151 of 2017 & 5350 of 2017 5 counsel for the 2nd respondent contended that this trip sheets are maintained in accordance with Rule 85 of the Central Motor Vehicle Rules, 1989.
10. It is the definite case of the prosecution as well as the 2nd respondent that the petitioner along with other accused persons barged into the bus and forcefully took possession including all the original documents kept inside the bus. As per Rule 32 of the Rules of Road Regulations, 1989, the vehicle should contain certificates of registration, taxation and insurance and in the case of a transport vehicle, the permit and fitness certificate also should be kept in the vehicle. All these documents were taken away by the petitioner.
11. Per contra, learned counsel for the petitioner submitted that he never parted with these documents. They were always in his possession. However, that is a factual issue to be resolved at the time of trial. I shall not deal with such issues in these proceedings.
12. Learned counsel for the petitioner seriously challenged Annexure-A10 order passed by the learned Magistrate in petitions filed under Section 451 Cr.P.C. I have been taken through the order elaborately. Learned Magistrate relying on Aliyar Kunju v. Subair Khan (1984 KHC
160) and Giji v. A.K.Gopinathan Nair (1995 KHC 374) found that merely because the petitioner happened to be the registered owner, he cannot Crl.MC Nos.2151 of 2017 & 5350 of 2017 6 claim interim custody of the vehicle because prima facie he came into possession of the vehicle through unlawful means. For finding so, learned Magistrate has referred to the materials in the case diary. The proposition relied on by the Magistrate cannot be disputed as in clear terms this Court speaking through learned Single Judges has laid down the law.
13. Learned counsel for the petitioner relying on Jacob v. Jayabharat Credit & Investment Co. (1983 KLT 721) contended that the registered owner has a primacy to get interim custody of the vehicle. But this decision was considered by the learned Single Judge in Aliyar Kunju and distinguished. Therefore I find no legal infirmity in the order passed by the learned Magistrate finding that the 2nd respondent is entitled to claim ownership.
14. Another important factor noticed here is that the 2nd respondent after initiation of these proceedings has filed a suit for declaration and injunction in respect of the vehicle in dispute before the Sub Court, Kottayam as O.S.No.102 of 2017 implicating the petitioner and other persons who said to have owned the vehicle at some point of time. It has been laid down by a Division Bench of this Court in Kerala State Cashew Development Corporation Limited v. Binod Cashew Corporation (2017 (3) KLT 436) that any decision even one under Section 452 Cr.P.C. is subject to a judgment on title by a civil court. The matter is at Crl.MC Nos.2151 of 2017 & 5350 of 2017 7 initial stage of the criminal proceedings. The question now to be decided is regarding interim custody. In this case, a perishable commodity is left to vagaries of weather and it will get ruined. Therefore, it is apposite to handover the vehicle to the custody of a rightful person so as to preserve it.
15. Learned counsel for the petitioner brought to my notice the fact that he is exposed to a danger in case the person to whom custody of the vehicle was given makes default in payment of the loan amount. It is made clear that the order passed by the Magistrate shall not be a reason to show a blind eye in case there is any change of circumstance brought out to show the default or wanton act on the part of any of the parties.
Having regard to the facts and circumstances, I find no reason to interfere with the Annexure-A10 common order passed by the learned Magistrate. In respect of the prayer to quash Annexure-A3 first information report in the above crime, I find no reason to grant any relief at this stage. The matter is under investigation. The contention raised by the petitioner that the registered owner cannot commit theft of a vehicle cannot be accepted at this stage. It depends on the evidence collected. Ownership of the vehicle had been said to have been transferred without changing the name in the registration certificate as observed in Aliyar Kunju. Registration certificate cannot be treated as a title deed of the vehicle. It is only an evidence of title. Therefore, the investigation, which is at a nascent Crl.MC Nos.2151 of 2017 & 5350 of 2017 8 state, cannot be interfered on the basis of the materials now placed before me. Therefore, petitioner is not entitled to get any relief in Crl.M.C.No.2151 of 2017. As I find no reason to interfere in the Annexure-A10 order passed by the Magistrate, I hereby dismiss Crl.M.C.No.5350 of 2017.
Both the petitions are dismissed.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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