Kerala High Court
Giji S/O Sebastian vs A.K. Gopinathan Nair on 13 July, 1995
Equivalent citations: 1996CRILJ140
Author: N. Dhinakar
Bench: N. Dhinakar
ORDER N. Dhinakar, J.
1. This petition is filed to set aside the order of the Judicial First Class Magistrate-II, Aluva, (Annexure-8) granting interim custody of the vehicle KBE 1503 to the respondent in this petition.
2. The case of the petitioner is that he entered into a contract of sale of the said bus KBE 1503 which was owned and possessed by the respondent for" an amount of Rs. 2,65, 000/- and the contract of sale was entered into between the petitioner and the respondent on 10-5-1994 and the terms and conditions were reduced into writing; and the said contract is filed as Annexure-I. A sum of Rs. 1,25,000/- was paid to the respondent and the balance amount was to be paid within six months as per the terms of the contract. As per the terms of the contract the possession of the bus was entrusted to the, petitioner along with all the documents including the registration certificate of the bus and the permit for plying the bus. According to the petitioner when the matter stood thus, the respondent committed theft of the bus on 16-10-1994 and the petitioner then filed a criminal complaint before the Judicial First Class Magistrate, Aluva, against the respondent and 2 others for offence punishable under Sections 379 and 506, I.P.C. Along with the complaint the petitioner also filed an application to search and seize the bus and the same was seized by the police on the orders of the Magistrate and produced before the Court. The petitioner then filed an application in Crl. M.P. No. 4646 of 1994 under Section 451, Crl. P.C., (Annexure-6). The respondent also filed a claim petition in Crl. M.P. 4673 of 1994 requesting for the interim custody of the bus. The Magistrate by his common order directed that the interim custody of the vehicle shall be with the respondent and aggrieved by the said order of the Magistrate this petition is now filed.
3. I have heard both counsel for the petitioner and the respondent. The case of the petitioner is that he had taken possession of the bus from the respondent by virtue of the agreement (Annexure-I). But the respondent contends that the possession of the bus was not actually given to the petitioner and that the bus was actually sold to one Baby, S/o. Ouseph by a written agreement and since the conditions of the agreement were not honoured the vehicle was returned back to him by the said Baby. The respondent further contended that on 2-10-1994 the petitioner possessed the vehicle by force and also obtained the documents relating to the bus from the conductor's bag on 28-9-1994. In short, the case of the respondent is that he never entered into an agreement with the petitioner and the present agreement produced in Court (Annexure-I) is a forged one and that the documents relating to the bus were stolen away by the petitioner on 28-9-1994 from the conductor's bag and later the bus was forcibly possessed by the petitioner on 2-10-1994. It is also said that the petitioner filed O.S. No. 580 of 1994 before the Sub-Court, Paravoor, for an injunction to restrain the respondent from forcibly taking away the bus from the possession of the petitioner and temporary injunction was also granted. Since the bus was stolen away from the possession of the petitioner the said temporary injunction originally granted was not extended. The respondent also filed original suit in O.S. No. 497 of 1994 before the District Munsiff, Aluva, for an injunction to restrain one Baby and the petitioner from forcibly snatching away the said bus. In the said original suit filed by the respondent an interlocutory application in LA. No. 4171 of 1994 praying for a temporary injunction was also filed. But the District Munsiff did not grant any interim injunction in the I. A., but passed an order saying that status quo' will remain.
4. The contention of the petitioner in this petition is that the Magistrate has committed an error in granting interim custody of the bus to the respondent holding that the matter is seized off by the Civil Court and the respondent has disputed the agreement entered into between the parties. I see some force in the contention of the petitioner. The fact remains that when the petitioner filed a complaint before the Court against the respondent he produced along with his complaint the agreement Annexure-I and also all the documents relating to the bus including the registration certificate of the bus. This, prima facie, shows that the documents came into possession of the petitioner in terms of the agreement entered into between him and the respondent. The case of the respondent that the vehicle was forcibly taken away and the documents were taken from the conductor's bag on 28-9-1994 is not probabilised as the respondent has not laid any complaint with the police in respect of that incident. The respondent submits that a complaint was laid with the police and the same was not registered. It is impossible for this Court to believe that when a cognizable offence was brought to the notice of the police authorities, they refused to register the said crime. Even assuming for a moment that the complaint was not registered as a crime nothing prevented the respondent from sending the complaint to the higher authorities as contemplated under Section 154(3) of the Crl. Procedure Code. The respondent has filed Annexure-R1(b) purporting to be the copy of the complaint filed by him before the Sub-Inspector of Police, Angamaly, dated 3-10-1994. Even according to the respondent the documents relating to the bus were stolen away from the conductor's bag on 28-9-1994 and it is not known why the respondent did not immediately choose to file a complaint with the police, but waited till 3-10-1994. In any event this respondent's contention that he laid complaint with the police against the petitioner for the removal of the documents is not substantiated by any document except by Annexure-R1(b) which is said to be only a copy of the complaint. Except for the ipse dixit statement of the respondent there is nothing to show that a complaint was laid with the police authorities on 3-10-1994. On the contrary, as stated above, the petitioner while filing the complaint against the respondent has produced the registration certificate and other documents as mentioned in the terms of agreement entered into between him and the respondent.
5. The power of the Court under Section 451, Crl. P.C. to order interim custody of the property, though discretionary, as is clear from the words "as it thinks fit" in the Section, is seemed to be exercised on the basis of the well established judicial principles. It is true that, regarding properties for the possession and use of which permits or licences are necessary, as in the case of motor vehicles, fire arms, etc., the general rule underlying the return of properties has to be applied with slight modification. In the case of such properties, a licence or permit could be taken to reflect the true position regarding ownership of the property. In the case of vehicles, the additional factor that would be relevant will be the possibility of putting the vehicle to best use, even during the period of interim custody. The return of the vehicle to one who has the registration certificate in his name and in the case of public vehicle who has the route permit in his name, would therefore be quite more advantageous than to return it to one who has no such claim. It is on the basis of these principles that the vehicles are normally ordered to be returned to the person in whose name the registration certificate stood, and at times to the persons from whom the vehicles were seized. But, all the above considerations are subject to one basic principle that the possession of that property by the claimant should have been a lawful possession and should not have been acquired through the commission of a crime. It is not difficult to discern the golden thread that runs through the web of the decisions that interim custody of property should not be granted to one, who has acquired possession of the same, through the commission of a crime - be he the person from whom it was seized or be he the holder of the registration certificate or permit, or the person who can make the best use of the vehicle. One who has acquired possession of a property through unlawful . means and through the commission of an offence ought not to be given, even interim custody, to enable him to enjoy the benefits of his crime. When such a situation arises considerations like the property being seized from him, the registration certificate being in his name and he, probably being the person who could best use the vehicle, would all lose their significance. It is seen that the petitioner has prima facie established that the bus and the documents in respect of the bus were entrusted with him in terms of the agreement filed as Annexure-I to this petition.
6. In Aliar Kunju v. Subair Khan, 1984 KLT 268 a learned single Judge of this Court held that if there is evidence or material before the Court to show that the person in whose name the certificate stands, has transferred the vehicle, naturally the Court has to hold that the ownership with the transferee and not with the person in whose name the certificate stands. Thus, while normally and ordinarily the registration certificate must be taken as reflecting the true position regarding ownership, it is not conclusive and it is always open to interested parties to show that it is not so. The learned Judge further held that Section 451 to the Code contemplates that the property is to be made over to proper custody and that for arriving at such a decision, while ordinarily and normally the person in whose name the registration certificate stands can be said to be the proper person to whom the custody can be given, that is not a rule of absolute and invariable application and it is open to the opposite party to produce materials before the Court to show that he has a better claim either as a transferee or otherwise. It was also held by the learned Judge that the motor vehicle being a movable, transfer of ownership takes effect from the date of sale and not from any other date. As between the transferor and the transferee, the sale is complete before the transfer of the registration certificate and failure to report to the registering authority may involve penalty under the Motor Vehicles Act. It will not prevent the transferee from getting title from the transferor by the transferee. Though as far as the registering authority is concerned the ostensible owner is the transferor but the beneficial interest will be with the transferee under such circumstances, the registration certificate is not a document of title though it is certainly evidence of ownership.
7. The respondent relied on two decisions, one by the Karnataka High Court and the other by this Court. In U. Kariyappa v. P. Sreekantaiah, 1980 Crl LJ 422 the Karnataka High Court held that while making an order of interim custody as provided under Section 451 Cr.P.C. the Criminal Court has to enquire first of all, whether the person who claims for the interim custody of the vehicle seized, is a registered owner entitled to use the vehicle as required under the provisions of the Motor Vehicle Act. If he is such a person, then ordinarily, he is a right and correct person to whom the custody of the vehicle has to be entrusted. In Jacob v. Jayabharat Credit & Investment Co., 1983 KLT 721: (1983 Cri LJ 1584)a learned Judge of this Court took the view that the interim custody of a motor vehicle has to be given to the registered owner. It cannot, at any rate, be given to a person who is not the registered owner even if the Police took possession of the same from him. This is because the vehicle will have to be kept idle as only a registered owner can ply the same. If the vehicle cannot be used on the road, no purpose will be served in giving interim custody to anybody.
8. The two judgments referred to above, in my view will have no application to the facts of this case as I have already stated that the petitioner came into possession of the bus by virtue of the agreement which, according to him was stolen away by the respondent. As I have already held that the case of the respondent that the documents of the vehicle were stolen away by the petitioner on 28-9-1994 cannot be accepted, I am of the view that the learned Magistrate erred in passing the order in giving the interim custody of the vehicle to the respondent herein. In my view the said order has to be set aside and accordingly it is set aside. The respondent is directed to produce the vehicle KBE 1503 before the Judicial First Class Magistrate-II, Aluva, within one week from today and the Magistrate thereafter will order interim custody of the vehicle to the petitioner herein after obtaining a bond on such terms and conditions which he may think proper and reasonable in the circumstances of the case after taking inventory of the vehicle.
9. This petition is disposed of accordingly.