Madras High Court
B. Lalithchand Nahar vs State By Insepctor Of Police, Central ... on 30 July, 1990
Equivalent citations: 1991CRILJ1111
ORDER
1. This petition coming on for hearing on 26-7-90 upon perusing the petition and upon hearing the arguments of Mr. K. A. Panchapagesan, Advocate for the petitioner and of Mr. A. S. Chakravarthy, Government Advocate (Criminal Side) of behalf of the State (1st Respondent) and of Mr. T. Munirathina Naidu, Advocate for the 2nd respondent and having been posted this day for orders, the Court made the following order :
One P. Thiagarajan purchased a Maruthi Car bearing registration on No. TSF 203 on hire purchase agreement with one M/s. Bhawar Kaver, No. 51, G.N. Chetty Road, T. Nagar, Madras-17. He was using the car and paying the monthly instalments regularly. It so he phoned that his brother by name Govardhan, in collusion with some of his associates unwarranted elements, fraudulently sold the vehicle to one Jani of Kerala. Consequently, the hirer Thiagarajan gave a complaint to the Central Crime Branch Police, which was registered in Crime No. 779/88. During the course of investigation, the police seized the vehicle and produced the same before the Additional Chief Metropolitan Magistrate, Egmore, Madras. The hirer filed Crl.M.P. No. 644 of 1988 and prayed for interim custody of the vehicle, pending disposal of the case. After the issuance of the notice to the financier, was in turn endorsed 'no objection' for the return of the seized vehicle to the hirer, learned Magistrate ordered for the interim custody of the vehicle with the hirer.
2. While so, the hirer on 20-12-1989 parked the vehicle at Singanna Chetty Street, Chintadripet, Madras at 5 p.m. on some business errand. He was keeping in the dash board of the car about Rs. 45,000/- borrowed from his grandmother for the purchase of a house site. While he was about to resume the driver's seat to take the car from there, the financier with a group of persons forcibly took possession of the car along with the money kept in the dash board. Despite persuasion by the hirer, the financier neither agreed to return the custody of the vehicle; nor allowed to hirer to take from the dash board the money kept therein. Left with no other alternative, the hirer lodged a complaint before the Inspector of Police, Central Crime Branch, Egmore, Madras-B on 21-12-1989 at 6-30 p.m. which was registered in Crime No. 1481/89 under section 392, IPC.
3. The police in turn seized the vehicle from the financier and produced the same before Court. The hirer filed Crl.M.P. No. 1238 of 1989 before Court for interim custody of the seized vehicle to him. Likewise, the financier through his accredited representative Lalithchand Nahar filed Crl.M.P. No. 1253 of 1989 for interim custody of the vehicle. The Court ordered interim custody of the vehicle to the hirer negativing the claims of the financier and thus allowed Crl.M.P. No. 1238 of 1989 and dismissed Crl.M.P. No. 1253 of 1989. The aggrieved financier filed the present petition invoking the extraordinary jurisdiction of this Court to set aside the order of learned Magistrate in ordering the interim custody of the vehicle to the hirer.
4. Learned counsel appearing for the financier would submit that the right of the financier is always there to seize the custody of the vehicle, in case the hirer commits default in payment of instalments and the seizure having been effected for non-payment of instalments, it cannot be stated that the action of the financier would amount to any criminal offence and if at all it is only a dispute of civil nature entitling the hirer to resort to civil action and in this view of the matter, the order of learned Magistrate in ordering interim custody of the vehicle to the hirer is wholly unsustainable in law. In support of such a submission, learned counsel implicitly relied upon the decision reported in 1989 Law Weekly (Criminal) page 233 (Jayaraman v. State by Mallur Police), wherein a learned Judge of this Court laid down the ratio as follows :
"In case of hire purchase, it is matter of common knowledge that in default of any one of the monthly instalments, the financier has a right to terminate the hire purchase agreement even without notice and seize the vehicle. On the facts of this case, such a right has been found in favour of the financial by the civil Court.
From the facts it is seen that the dispute raised is purely of a civil nature, in spite of his suppression of civil proceedings by the complainant. Even assuming that the petitioners (financiers) either by themselves or in the company of others went and seized the truck they could and did claim to have done so in exercise of their bona fide right of seizing the lorry, on the failure of the complainant to pay the monthly instalments due on the hire purchase agreement. Obviously a bona fide claim of right led to the seizure of the lorry and this has been affirmed by the Civil Court. On the face of the complainant itself, which has suppressed the civil litigation, and which must have come out during the investigation by the respondent, there is no material whatsoever to prosecute the petitioners for theft of the vehicle."
5. Learned Counsel appearing for the hirer would repel such a submission by stating that it is not as if the aforesaid decision had not been cited before the Court below and the same had not been considered. He would further submit that learned Magistrate, on careful scrutiny and scanning of the facts of the present case, found the aforesaid decision as not applicable to the case on hand and to accept such a view of the financier is not legally permissible, in the circumstances of the case. He would further submit that before learned Magistrate, a decision reported in 1987 Law Weekly (Criminal) page 487 G. Gopalaswamy v. Nagarajan and two others) had been cited and he in turn relied upon the decision for arriving at a just decision in the case, in the sense of returning the interim custody of the vehicle to the hirer. He would invite my attention to para 19 of the judgment, wherein a learned Judge of this Court observed as follows :
"It follows, therefore, from the above decisions that 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, has yet 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 the 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 the return it to one who has no such claim. It is on the basis of these principles that in the decision referred to by the learned counsel for the petitioner that the vehicle had been 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 these decisions that interim custody of property should not be granted to one, who has acquire possession of the same, through the communication of a crime be "he the person from whose 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."
6. He would further submit that the hirer, who is in the interim custody of the vehicle pursuant to the orders of Court, cannot be stated to be in custody and possession of the vehicle in legitimate exercise of his entitlement to the possession of the vehicle. But, if at all, it could be stated that his custody of the vehicle can be termed as custody held in trust for and on behalf of the Court which ordered for the return of the vehicle to his custody. He would also in support of such a submission rely upon the decision reported in 1985 Criminal Law Journal page 951. (Kerala (V. Parakashan v. K. P. Pankajakshan), wherein a learned Judge of the Kerala High Court laid down as follows :
"S. 451 enables the Magistrate to provide for interim custody of property pending conclusion of enquiry or trial. It is only a temporary arrangement and what is contemplated is only an interim provision to provide custody with a proper person as the Court thinks fit with liability to produce the property back as and when directed by the Court. The maximum duration of the arrangement is only till conclusion of the enquiry or trial. It follows that the arrangement is only temporary and the main object is to protect or preserve the property pending trial. Even if the person entrusted with interim custody is the owner, his possession or custody during the period of entrustment is only as representative of the Court and not in his independent right."
7. Applying those principles to the facts in the instant cases I am of the view that it cannot be stated that the order of learned Magistrate refusing to return the vehicle to the petitioner is not in conformity with the well-established principles of law. As such, the petitioner deserves to be dismissed.
8. In the result, the petition is dismissed. Petition dismissed.