Gujarat High Court
Ess Kay Fincorp Limited Thro ... vs State Of Gujarat on 13 July, 2021
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.RA/362/2021 JUDGMENT DATED: 13/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 362 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ESS KAY FINCORP LIMITED THRO JAYENDRASINH CHAUHAN S/O
JETHUSINH
Versus
STATE OF GUJARAT
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Appearance:
CHETANKUMAR V DARJI(9309) for the Applicant
MAYANK R CHAVDA(9250) for the Respondent No. 2
MRS KRINA CALLA APP for the Respondent No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 13/07/2021
ORAL JUDGMENT
1. This Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure is directed against the order dated 28.12.2020 passed by learned 3rd Additional Sessions Judge, Veraval, Gir Somnath in Criminal Misc. Application No. 414 of 2020, Page 1 of 13 Downloaded on : Sat Jul 17 03:39:07 IST 2021 R/CR.RA/362/2021 JUDGMENT DATED: 13/07/2021 whereby, the application filed under Section 451 of Cr.P.C to get custody and permission to sell Muddamal Vehicle being Maruti Suzuki Ertiga car bearing registration No. GJ-01-KR-6008 was partly allowed and permission to sell the vehicle was rejected.
2. Heard Mr. Chetankumar V. Darji, learned advocate appearing for the applicant, Mrs. Krina Calla, the learned APP for the respondent No. 1 State and Mr. Mayank R. Chavda, the learned advocate appearing for the respondent No. 2.
3. Brief facts of the present applicant is that the applicant is a company registered under the Companies Act, 1956. The applicant is a non-banking finance company governed under the rules and regulations of the Reserve Bank of India. The applicant company is engaged in the business of providing various types of financial loans to its customers which includes auto loan for purchase of old/new vehicle.
3.1 The respondent no. 2 had availed a loan facility for the purpose of purchasing vehicle i.e. Maruti Suzuki Ertiga car bearing registration No. GJ-01-KR-6008 and accordingly, loan of Rs.3,40,000/- was sanctioned and as per the terms of the loan, the respondent No. 2 had to repay the entire loan amount in 24 monthly installments and the monthly installment was Rs.17,296/-. The hypothication agreement was executed by the parties and same is reflected in the registration certificate of vehicle issued by RTO authority. The respondent No. 2 declared defaulter as failed to pay the loan amount.
3.2 The vehicle Maruti Suzuki seized by the Veraval Police for the offence punishable under Section 302 of the IPC as the car was used in Page 2 of 13 Downloaded on : Sat Jul 17 03:39:07 IST 2021 R/CR.RA/362/2021 JUDGMENT DATED: 13/07/2021 the alleged offense and accordingly the Investigating Officer seized the vehicle and produced it before the Court.
3.3 The applicant company moved an application under Section 451 of the Cr.P.C. to get the possession of the vehicle and sought permission to sell the muddamal vehicle. The learned trial Court after hearing the parties, released the vehicle and did not grant the permission to sell the vehicle.
4. Feeling aggrieved and dissatisfied with the impugned order, the applicant has preferred present Criminal Revision Application.
5. Learned advocate Mr. C.V. Darji appearing for the applicant would submit that the learned trail Court has rejected the prayer of applicant for grant permission to sell the vehicle is in clear violation of the principles laid down in Smt. Basava Kom Dyamogouda Patil Vs. State of Mysore and Another, AIR 1977 SC 1749, Sunderbhai Ambalal Desai Vs. State of Gujarat, AIR 2003 SC 638, General Insurance Council and Others Vs. State of Andhra Pradesh and Others, (2010) 6 SCC 768 in which the Supreme Court has held that the photographs can be used as secondary evidence during trial and it is not necessary to produce the seized property at the time of trial.
6. The learned counsel Mr. C.V. Darji, would further submit that the learned trial Court failed to consider the facts that the applicant is a finance company and doing the business of availing loan facility to his customer and if the permission to sell is not granted, the company has to bear additional expenses towards maintenance, storage, insurance, tax and safety of vehicle. It would further submit that the respondent no. 2 Page 3 of 13 Downloaded on : Sat Jul 17 03:39:07 IST 2021 R/CR.RA/362/2021 JUDGMENT DATED: 13/07/2021 has defaulted in making payment and breached the terms and conditions of the loan agreement and therefore, company is legally entitled to recover its due from sell of the vehicle.
7. In view of the aforesaid submissions, the learned counsel would submit that the impugned is order required to be set aside qua condition no. 5 and seeks direction to grant the permission to sell the vehicle.
8. On the other hand, Mrs. Krina Calla, learned APP submitted that there is no illegality in the order passed by the learned trial Court and the vehicle in question has been seized in the serious offence and if it is allowed to be sold, it would be difficult for the prosecution to prove its case during the trial.
9. Mr. Mayank Chavda, learned advocate appearing for the respondent No. 2 has no objection with respect to permission as sought by the applicant company. It is his submission that the company shall give an opportunity to the respondent no. 2 when sell proceedings take place.
10. Having heard the learned advocates appearing for the respective parties and on careful perusal of the records, this Court finds that the interim custody of the vehicle in question has been released in favour of the applicant, however, the learned trial Court did not have consider to grant permission to sell the vehicle as sought by the applicant.
11. Chapter XXXIV Cr.P.C. deals with disposal of property. Sections 451 is relevant for the purpose of the present case, which reads as under:
Page 4 of 13 Downloaded on : Sat Jul 17 03:39:07 IST 2021R/CR.RA/362/2021 JUDGMENT DATED: 13/07/2021 "451. Order for custody and disposal of property pending trial in certain cases.-
When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.?For the purposes of this section, "property" includes?
(a) property of any kind or document which is produced before the Court or which is in its custody.
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence."
12. Section 451 empowers the Court to pass appropriate orders with regard to such property, pending conclusion of the inquiry or trial; to order it to be sold or otherwise disposed of; after recording such evidence as it thinks necessary.
13. In General Insurance Council Vs. State of AP, reported in (2010) 6 SCC 768, the provisions prescribed under Section 451 and 457 Cr.P.C, considered by the Apex Court and after taking note of the directions given by the Supreme Court in Surendrabhai Ambalal Desai case (2002) 10 SCC 283, held in para-13 as under:
"13. In our considered opinion, the aforesaid information is required to be utilized and followed scrupulously and has to be given positively as and when asked for by the Insurer. We also feel, Page 5 of 13 Downloaded on : Sat Jul 17 03:39:07 IST 2021 R/CR.RA/362/2021 JUDGMENT DATED: 13/07/2021 it is necessary that in addition to the directions issued by this Court in Sunderbhai Ambalal Desai and C.M. Mudaliar Vs. State of Gujarat, AIR 2003 SC 638 : (2002) 10 JT 80 : (2002) 10 SCC 283 :
(2002) 3 SCR 39 Supp : (2003) 1 UJ 590 considering the mandate of Section 451 read with Section 457 of the Code, the following further directions with regard to seized vehicles are required to be given:
"(A) Insurer may be permitted to move a separate application for release of the recovered vehicle as soon as it is informed of such recovery before the Jurisdictional Court. Ordinarily, release shall be made within a period of 30 days from the date of the application. The necessary photographs may be taken duly authenticated and certified, and a detailed panchnama may be prepared before such release.
(B) The photographs so taken may be used as secondary evidence during trial. Hence, physical production of the vehicle may be dispensed with.
(C) Insurer would submit an undertaking/guarantee to remit the proceeds from the sale/auction of the vehicle conducted by the Insurance Company in the event that the Magistrate finally adjudicates that the rightful ownership of the vehicle does not vest with the insurer. The undertaking/guarantee would be furnished at the time of release of the vehicle, pursuant to the application for release of the recovered vehicle. Insistence on personal bonds may be dispensed with looking to the corporate structure of the insurer."
14. In K.W. Ganapathy vs. State of Karnataka (2002) Cr.L.J. 3867, the Bench of High Court of Karnataka has dealt with the issue of permission to sell the vehicle and its evidentiary value. The relevant observations made in para-2 to 8, which read thus:
Page 6 of 13 Downloaded on : Sat Jul 17 03:39:07 IST 2021R/CR.RA/362/2021 JUDGMENT DATED: 13/07/2021 "2. The petitioner is the owner of a Zen car bearing No. KA-12-N- 4699. The said car was stolen by the accused. On a complaint the police have registered a case and laid a charge-sheet in C.C. No. 269/2000 on the file of the Prl. JMFC, Virajpet. The prosecution version supports the contention of the petitioner that he is the owner of the car and was the subject matter of theft. The case is pending trial. The interim custody of the car was given to the petitioner under Section 457, Cr.P.C. by the JMFC, on certain conditions. The chief condition being that the petitioner shall keep the car in his custody intact and shall not alienate until the disposal of the case. After taking interim custody, the petitioner made another application before the JMFC submitting that the petitioner has taken finance from the Co-operative Bank while purchasing the car, the interest liability is mounting up and he is unable to make arrangements for repayment of the loan. Therefore, intends to sell the car for repaying the debt liability to the bank. In that connection, sought permission of the Court to permit him to sell the car. The trial Court rejected the request. In Crl. Revision Petition No. 13/2002, the Sessions Judge Kodagu, confirmed the order of the JMFC and rejected the revision. Being aggrieved the present petition is filed.
3. According to the material discussions made in the impugned orders, it appears that there are three accused in the criminal case and accused Nos. 2 and 3 are in judicial custody. Accused No. 1 is absconding. Perhaps the case against accused No. 1 is likely to be split up. Even assuming the case against accused Nos. 2 and 3 is expeditiously concluded, for want of other accused split up charge-sheet would be pending and the petitioner has to suffer the restrictions of the conditional order prohibiting alienation till the disposal of the case. It is not known when the absconding accused is likely to be traced and the trial against him will be concluded.
Page 7 of 13 Downloaded on : Sat Jul 17 03:39:07 IST 2021R/CR.RA/362/2021 JUDGMENT DATED: 13/07/2021 The indefinite and uncertain situation pestering the complainant prompted him to make an application to permit him to alienate the car.
4. After hearing the counsel for the State and the petitioner, I find that the grievance made out by the petitioner is genuine. Of course, in the usual course of routine conditional orders are passed while delivering the property to the interim custody. When the property has any evidentiary value, it is to be kept intact and to ensure its production during the course of evidence for the purpose of marking as a material object the condition of non alienation is imposed. However, when the property has no evidentiary value and only the value of the property is to be properly secured for passing of final order under Section 452, Cr.P.C., the necessity of keeping such properties intact by imposing onerous conditions, prohibiting its alienation or transfer would not be necessary in law.
5. The production of property which has evidentiary value during evidence is a part of a fair trial. With the advanced technology, it is not necessary that the original of the property inevitably has to be preserved for the purpose of evidence in the changed context of times. The reception of secondary evidence is permitted in law. The techniques of photography and photo copying are far advanced and fully developed. Movable property of any nature can be a subject matter of photography and taking necessary photographs of all the features of the property clearly is not a impossible task in photography and photo copying. Besides, the mahazar could be drawn clearly describing the features and dimensions of the movable properties which are subject matters of criminal trial. Many a time, we find as a routine course, the Courts impose condition of non alienation and to keep the property intact without alteration in any manner. Many a time such conditions act harshly upon rightful owners of the property from exercising their Page 8 of 13 Downloaded on : Sat Jul 17 03:39:07 IST 2021 R/CR.RA/362/2021 JUDGMENT DATED: 13/07/2021 lawful ownership rights.
6. Irrespective of the fact whether the properties have evidentiary value or not it is not necessary that the original of the property has to be kept intact without alienation. As suggested above, the photography or photostat copy of the property can be taken and made a part of the record duly certified by the Magistrate at the time when the interim custody of the property is handed over to the claimant. In the event of the original of the property not produced in the evidence, photograph could be used as secondary evidence during the course of evidence. Ultimately, while passing final orders, it is only the value of the property that becomes a prime concern for the Court. If a person to whom the interim custody is granted, is not entitled to the property or its value and if some other person is held to be entitled to have the property or its value by taking necessary bonds and security from the person to whom interim custody is granted, the value could be recovered and made payable to the person entitled to. The rightful, owners, who have lost the property by an act of crime even after detection and recovery are continued to be prevented from beneficial possession and enjoyment of the same by the archaic conditions imposed as a regular routine despite the changed context of scientific developments.
7. To illustrate, a situation one X loses gold jewellery by theft. The police successfully detect and discover the gold jewellery the same is produced before the Court. Production of gold jewellery and marking of the same in evidence to prove the same as corpus delicti is one of the insistence of law as a part of fair trial. Even after the gold jewellery is given to the custody of X to deprive him by imposing the condition of non alienation from exercise of right ownership for unreasonable length of time would be too harsh and one sided, and a nonchalant approach towards the victims of crime. It may be that X require the gold jewellery for the purpose Page 9 of 13 Downloaded on : Sat Jul 17 03:39:07 IST 2021 R/CR.RA/362/2021 JUDGMENT DATED: 13/07/2021 of the marriage of his daughter or may be that he may require funds for medical treatment or other genuine needs, when he has no alternative source except by sale of the gold jewellery, the condition of non alienation in such situation would be onerous and unreasonable. The production of property during the trial having incriminating value is a insistence to secure the rights of accused as a part of fair trial. At the same time, when there is a possibility of having a secondary evidence of the said property, it is no longer necessary in law to insist that the property to be kept intact without alteration and non alienation.
8. In order to ensure the recovery of value, it is necessary that the trial Court shall take all necessary diligent steps to get the market value of the property, correctly assessed the photography of the property, properly taken depicting all its features and dimensions and before the property is delivered to the interim custody, the photographs have to be certified by the Magistrate. Further necessary bonds and security to be taken from the person to whom interim custody to be given for the value of the property in order to ensure prompt recovery of value from the person to whom interim custody is given. By following the said safeguards, it is no longer necessary to follow the archaic convention of imposing condition of non alienation. After all the Court while passing a judicial order of interim custody is guided by the investigation material and other prima facie material, which support the claim and title of the person to whom interim custody is given. Having once given the interim custody to the person who is supposed to be the owner of the property, depriving him to effectively use and exercise the lawful ownership rights would be unlawful."
15. In Canara Bank Vs State of Punjab, (2006) Cr.L.J. 86, the Punjab and Hariyana High Court has examined the issue of permission to grant sell of the vehicle and interpreted the provision of Page 10 of 13 Downloaded on : Sat Jul 17 03:39:07 IST 2021 R/CR.RA/362/2021 JUDGMENT DATED: 13/07/2021 Section 451. The relevant para 8 and 9 reproduce hereunder:
"8. When any property is produced before a Criminal Court, during any inquiry or trial and in case a prayer is made for sale thereof, the Court is empowered to, if the property "........... is subject to speedy and natural decay or if it is otherwise expedient so to do ..............," order its sale or disposal. For this purpose, the Court may if it deems appropriate record such evidence as it thinks necessary. The words ........... or it is otherwise expedient so to do so .......... succeeding the words ............. "speedy and natural decay ................." are not to be read ejusdem generis to the words "speedy and natural decay." The use of the word expedient confers discretion upon a Court to order sale of case property other than property subject to speedy and natural decay, provided the Court records a finding that it is expedient to do so subject to such terms and conditions as the Court may deem appropriate. This power is to be exercised judiciously and depending upon the facts and circumstances of each case.
9. Invariably, property brought before a Court during the course of an inquiry or a trial would be case property and therefore, to decline permission to sell on the sole ground, that the property is case property would be a negation of the provisions of Section 451 of the Cr.P.C. The property being case property, is no doubt a relevant consideration but except where facts and circumstances of a case so warrant cannot be a sole circumstance, to decline permission to sell. Each case must be decided on its own peculiar facts and circumstances.Page 11 of 13 Downloaded on : Sat Jul 17 03:39:07 IST 2021
R/CR.RA/362/2021 JUDGMENT DATED: 13/07/2021
16. In the present case, the vehicle seized by the Investigating Officer for the offence punishable under Section 302 of the IPC. Generally, when vehicle is involved in the offence, the Court while passing the order under Section 451 of the Cr.P.C, would not grant permission to sell the property, the reason is it is to be kept intact, to ensure its production during the course of evidence. In case of Sundarlal Ambalal Desai (supra), the Apex Court indicated an alternative procedure, to be followed by the Court when the permission for sell being sought by the applicant. The observations made in para-2 is relevant so far issue raised in the present case is considered, which read as under:
"2. In our view, no further directions are required to be given in these matters. However, it is made clear that in case where the accused disputes that he is not involved in the alleged incident and no article was found from him then such endorsement be taken on the photograph. Further, with regard to the vehicle also, it is made clear that there may not be any necessity of producing the vehicle before the Court and the seizure report may be sufficient. The special leave petitions are disposed of, accordingly."
17. Coming back to the facts of the present case, it is not in dispute that the applicant being a finance company, sanctioned the vehicle loan and the vehicle has been hypothicated with the applicant company. The respondent no.2 is not the absolute owner of the vehicle. Under such circumstances, the claim of the applicant to seek permission to sell the vehicle seems to be genuine. If the permission accorded, then, it would benefit both, the finance company and the respondent no.2 as company would able to recover the part of loan Page 12 of 13 Downloaded on : Sat Jul 17 03:39:07 IST 2021 R/CR.RA/362/2021 JUDGMENT DATED: 13/07/2021 advance and on other hand, it would reduce the civil liability of the respondent no.2. Thus, keep the vehicle as it is without alienation would not serve any purpose. The learned trial Court failed to consider this aspect and without assigning any cogent reasons, straightway refused to grant permission to sell the vehicle. It is true that the vehicle is involved in the offence of 302 of IPC. However, learned trial Court ought to have considered the legal provision as provided under section 451 which empowers the Court to exercise its discretion and follow the mandatory alternative procedure as indicated by the Apex Court in the case of Sundarlal Ambalal (supra). Looking to the facts and circumstance of the present case, the application for permission to sell the vehicle could not have refuse.
18. In the result, this Revision Application is allowed. The condition nos. 3 and 5 of the impugned order dated 28.12.2020 passed by learned 3rd Additional Sessions Judge, Veraval, Gir Somnath in Criminal Misc. Application No. 414 of 2020 are hereby deleted. The applicant is permitted to sell the vehicle i.e. Maruti Suzuki Ertiga car bearing registration No. GJ-01-KR-6008. The other conditions remain unaltered. The trial Court shall direct the Investigating Officer to prepare panchnama of the vehicle. The applicant company shall intimate the trial Court about the sell consideration received by it and also file an undertaking before the trial Court that the company shall deposit the entire sale proceed in the Court, if required/ ordered by the Court at the end of trial.
(ILESH J. VORA,J) P.S. JOSHI Page 13 of 13 Downloaded on : Sat Jul 17 03:39:07 IST 2021