Kerala High Court
M/S.Tata Motors Finance Ltd vs Paul P.Varghese on 10 June, 2013
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 3RD DAY OF APRIL 2014/13TH CHAITHRA, 1936
Crl.MC.No. 1812 of 2014 ()
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CMP. NO.381/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALUVA.
CRIME NO.1481/2013 OF THRIKKAKARA POLICE STATION.
.......
PETITIONER:
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M/S.TATA MOTORS FINANCE LTD.,
HAVING ITS REGISTERED OFFICE AT 1ST FLOOR,
CYBERTECH HOUSE, PLOT NO.B-63/65, ROAD NO.21/34,
J B SAWANT MARG, WAGLE ESTATE, THANE WEST-400 604
AND HAVING ITS BRANCH OFFICE AT SMART CENTRE,
4TH FLOOR, CIVIL LANE ROAD, CHEMBUMUKKU,
KOCHI-682 021, REPRESENTED BY ITS LETTER
OF AUTHORITY SAINS MATHEW.
BY ADV. SRI.PRADEESH CHACKO.
RESPONDENT/ACCUSED/COMPLAINANT:
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1. PAUL P.VARGHESE,
S/O, VARGHESE, HOUSE NO.727, WARD 11,
PUTHENPURACKAL HOUSE, MALAMPUZHA,
NOW RESIDING AT PULIYANAM P.O., PEECHANIKKAD,
PALAPUZHA, ANGAMALY, ERNAKULAM-683 571.
2. MARIA PAUL,
W/O. PAUL P. VARGHESE, HOUSE NO.727, WARD 11,
PUTHENPURACKAL HOUSE, MALAMPUZHA,
NOW RESIDING AT PULIYANAM P.O., PEECHANIKKAD,
PALAPUZHA, ANGAMALY, ERNAKULAM-683 571.
3. SUB INSPECTOR OF POLICE,
THRIKKAKARA POLICE STATION,
ERNAKULAM DISTRICT-682 025.
4. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
R3 & R4 BY PUBLIC PROSECUTOR SMT.S. HYMA.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 03-04-2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
rs.
Crl.MC.No. 1812 of 2014
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE I: THE LOA DATED 10.06.2013.
ANNEXURE II: TRUE COPY OF THE AGREEMENT DATED 07.09.2012.
ANNEXURE II(A): TRUE COPY OF THE AGREEMENT DATED 07.09.2012.
ANNEXURE III: TRUE COPY OF THE STATEMENT OF ACCOUNTS
DATED 19.03.2014.
ANNEXURE III(A): TRUE COPY OF THE STATEMENT OF ACCOUNTS
DATED 19.03.2014.
ANNEXURE IV: TRUE COPY OF ORDER IN CMP. 2146/2013 OF JFCM I, ALUVA
DATED 20.11.2013.
ANNEXURE V: TRUE COPY OF THE ORDER IN CMP. 381/2014
DATED 18.03.2014.
ANNEXURE VI: TRUE COPY OF THE ORDER IN CRL.M.C.2496/2014
DATED 30.07.2008.
ANNEXURE VII: TRUE COPY OF THE ORDER IN CRL.M.C.3754/2010
DATED 17.12.2010.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.A. TO JUDGE
rs.
K. RAMAKRISHNAN, J.
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Crl. M.C. No.1812 of 2014
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Dated this the 3rd day of April, 2014
O R D E R
This criminal miscellaneous case is filed by the petitioner/defacto-complainant in Crime No.1481/2013 of Thrikkakara Police Station, challenging the order passed by the Judicial First Class Magistrate Court-I, Aluva, in C.M.P.No.381/2014 under Section 482 of the Code of Criminal Procedure (hereinafter called the 'Code').
2. It is alleged in the petition that, the petitioner had entered into an agreement with respondents 1 and 2 in respect of two separate loan cum hypothication agreement on 07.09.2012 for purchase of two Tata LPT 1109 lorries and amount of 10,92,000/- each was given as loan for the purchase of those lorries. They will have to repay the same in 48 installments, but they have committed default in payment of the same and took away the vehicle Crl. M.C. No.1812 of 2014 2 out of the reach of the petitioner. So the petitioner filed a complaint before the Judicial First Class Magistrate Court-I, Aluva, alleging offences under Section 403, 406, 417, 420 and 424 read with Section 34 of the Indian Penal Code and that was forwarded to the police for investigation under Section 156(3) of the 'Code' and on that basis, crime No.1481/2013 of Thrikkakkara Police Station was registered. Thereafter, they have seized the vehicle and produced before the court. Thereafter, the petitioners filed C.M.P.No.2146/2013 for release of these vehicles as interim custody under Section 451 of the 'Code' and that was allowed by the court below, as per Annexure-4 order with some conditions. Thereafter, they filed C.M.P.No.381/2014 for permission to sell the vehicle, as the investigation will take long time and keeping the vehicle for long time will reduce its value and huge amounts are due from the accused persons and that petition was dismissed by the learned magistrate, as per Annexure-5 order, on the ground that, changing the condition will amount to review of the Crl. M.C. No.1812 of 2014 3 earlier order, which is not permissible and permission for alienation of the vehicle cannot be considered at this stage. This is being challenged by the petitioner, filing this petition.
3. Since the accused persons are absconding and they have not opposed the interim custody of the vehicle which was granted to the petitioners and did not appear in this application also in the lower court, this court felt that, the petition can be disposed of by dispensing with notice to respondents 1 and 2 and after hearing the counsel for the petitioner and the learned Public Prosecutor alone.
4. The counsel for the petitioner submitted that, there is no dispute regarding the identity of the vehicles involved in this case. The fact that, the vehicles were hypothicated to the petitioner company and the respondents 1 and 2 have committed default is also not in dispute and in similar cases this court as per Annexure-6 and 7 allowed the financiers to sell the vehicle on certain conditions. The same yardstick can be applied for this case also. Crl. M.C. No.1812 of 2014 4
5. The learned Public Prosecutor opposed the application, on the ground that, ultimately if it is found the petitioners are not entitled to get the vehicle, they will have to return the vehicle to the respondents 1 and 2.
6. It is an admitted fact that, the petitioner herein is a finance company dealing with granting loan for purchase of vehicles on hypothication. It is also accepted by the court below that respondents 1 and 2 have entered into a financial transaction with the petitioner company for purchase of two vehicles involved in this case and it was on that basis, interim custody of the vehicle was given to them, as per Annexure-4 order in C.M.P.No.2146/2013. As per the documents produced by the petitioner, huge amount is due to the petitioner by way of installment from respondents 1 and 2. Further, the petitioners having charge over the vehicle for realisation of the amount, they are entitled to realise the amount by the sale of the vehicle as well by virtue of the hypothication agreement entered into between the petitioner and respondents 1 and 2. Keeping the vehicle Crl. M.C. No.1812 of 2014 5 for long time, without sale will only affect the value of the vehicle and the value will be reduced and they will not fetch good amount also. So, respondents 1 and 2 have not so far come either for seeking custody of the vehicle or have opposed the interim custody granted to the petitioner as well. The vehicle being a movable, which is liable to decay and keeping it will not be helpful to both the parties, it is always better that, the vehicle will have to be disposed of especially when the identity of the vehicle is not in dispute and it will be beneficial to both parties as well. Ultimately, it is found that, the petitioners are not entitled to re-posses the vehicle, then respondents 1 and 2 may get back the value of the amount, which the petitioner has to reimburse.
Further in similar cases, this court in C.M.C.No.2496/2008and C.M.C.No.3754/2010 has granted permission to the financiers to sell the vehicle on certain conditions, which is evident from Annexure-6 and 7 orders and the same yardstick, can be applied in this case also. So the petition is disposed of as follows:
Crl. M.C. No.1812 of 2014 6
i. The order passed by the court below dismissing the application is set aside.
ii. The petitioner is granted permission to dispose of the two vehicles with registration No.KL-09/AD-6650 and KL-09/ AD-6579, released to them, as per order in C.M.P.No.2146/2013 and involving in Crime No.1481/2013 of Thrikkakkara Police Station, in public auction, after giving specific notice of 30 days to respondents 1 and 2, conveying the details of proposal to sell the vehicles in public auction.
iii. It is further clarified that, the public auction shall be published in a Malayalam daily and also either in Indian Express or Hindu having circulation all over Kerala, granting sufficient time to fetch good purchasers for the same.
iv. Notwithstanding the permission granted to the petitioner to dispose of the vehicle, the Crl. M.C. No.1812 of 2014 7 petitioner must before conducting the sale by auction, file an undertaking before the learned magistrate to pay the entire amount due under the bonds executed by them earlier, as and when directed by the learned magistrate, notwithstanding the disposal of the vehicle. They shall also execute a bond with two solvent sureties for the like sum each before the court below for the amount realised by way of sale, undertaking that, they will re-deposit the amount, apart from the bond amount earlier executed, if called for by the court on the later occasion.
With the above directions and observation, the petition is disposed of.
Sd/-
K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss