NITHEESH P.S. v. BAIJU T.S. and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** ## **WEDNESDAY, THE 16[TH] DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943** ## **CRL.MC NO. 464 OF 2022** **[AGAINST THE ORDER DTD.14.1.2022 IN CrL.RP 112 & 113/2021 OF IST ADDITIONAL SESSIONS JUDGE,THRISSUR IN CRIME NO.1315 OF 2021 OF OLLUR POLICE STATION, THRISSUR]** ## **PETITIONER/REVISION PETITIONER:** **NITHEESH P.S. AGED 24 YEARS SON OF SURESH, PUNNA HOUSE, KANIMANGALAM, VILLAGE, DESOM, P.O. KANIMANGALAM, THRISSUR TALUK.** - **BY ADVS. K.P.SANTHI TARA PREM** ## **RESPONDENTS/RESPONDENTS AND STATE:** - **1 BAIJU.T.S., AGED 43 YEARS SON OF SURENDRAN, THARAYAPURATH HOUSE, KANIMANGALAM, MOONNUPEEDIKA P.O., PERINJANAM, THRISSUR 680 686.** - **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** - **BY ADVS. ANUPAMA SUBRAMANIAN K.R.SRIPATHI(K/206/2012)** ## **OTHER PRESENT:** ## **SR.PP - SMT. SREEJA V.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.02.2022, THE COURT** **ON 16.02.2022 PASSED THE FOLLOWING:** Crl.M.C. No. 464 of 2022 2 ## **ORDER** Petitioner is the claim petitioner in Crl. M.P No. 1349 of 2021 in Crime No. 1315 of 2021 of Ollur police station lodged before the Judicial First Class Magistrate's Court-III, Thrissur. That is a crime registered alleging offences under Sections 406, 420 and 468 read with 34 of the IPC in which one Bobby is the de facto complainant. Admittedly, he was the registered owner of a Benz car bearing registration No. KL-08-BE-3333. Alleging that the accused persons, that is one Jayaprakash and Nitheesh the petitioner herein, had committed criminal breach of trust and forgery for the purpose of cheating, he lodged a complaint before the police on the basis of which Crime No. 1315 of 2021 of Ollur police station was registered and the accused persons were arrested and produced before Court. The said car was also seized by the police. Raising claim over the vehicle, petitioner moved the court with a Crl.M.C. No. 464 of 2022 3 petition under Section 451 of the Cr.P.C. Meanwhile another claim petition was filed by the first respondent. Both the claim petitions were considered by the Judicial First Class Magistrate-III, Thrissur, and by the common order dated 25th October 2021, the Magistrate directed to give interim custody of the vehicle to the first respondent. Aggrieved by the same, the petitioner preferred Crl. R.P. Nos. 112 and 113 of 2021 before the I[st] Additional Sessions Court, Thrissur. The learned Additional Sessions Judge by order dated 14[th] January, 2022 held that a revision is not maintainable against such an interim order. Aggrieved by the same, the petitioner has approached this Court under Section 482 of the Cr.P.C. 2. The petitioner contends that both the learned Magistrate and the learned Sessions Judge have failed to appreciate the contentions properly and therefore he seeks to call for the records of the case and to set aside Crl.M.C. No. 464 of 2022 4 Annexure-VIII common order in Crl. R.P. Nos. 112 and 113 of 2021 of the I[st] Additional Sessions Judge, Thrissur and to direct the Judicial First Class Magistrate-II, Thrissur to release the vehicle KL-08-BE-3333 to the petitioner. 3. I heard the learned counsel for the petitioner, the learned counsel for the first respondent, and also the learned Senior Public Prosecutor representing the second respondent. The first respondent filed a counter-affidavit along with documents, whereas the learned Senior Public Prosecutor has made available a statement of the Investigating Officer. 4. Even though both sides wanted this Court to go into the correctness of the order passed by the learned Magistrate, relying on the decision reported in **Jacob v. Jayabharath Credit and Investments [1983 KHC 164]** the learned counsel for the petitioner pointed out that a revision will lie. On the other hand, the learned counsel Crl.M.C. No. 464 of 2022 5 for the first respondent defended the view of the learned Additional Sessions Judge where he had held that the revision is not maintainable on the basis of the decision in **Vasu v. Unnikrishnan [1983 KLT 310]** . But before this Court, counsel on both sides agreed that in this proceedings under Section 482 of the Cr.P.C. this Court need not go into the correctness or otherwise of the maintainability of a revision against such an order; they wanted the Court to consider the correctness of the order passed by the learned Magistrate. I think, that is the proper course because even though the Annexure-VII order was passed by the learned Magistrate on 25[th] October, 2021 the vehicle remains idle. It is the settled proposition of law, as held by the Hon'ble Supreme Court in **Sunderbai Ambalal Desai v. State Of Gujarat [AIR 2003 SC 638]** a vehicle cannot be kept idle for long and it is necessary that a decision on the interim custody of the vehicle involved in a Crl.M.C. No. 464 of 2022 6 crime should be passed at the earliest. Therefore, it is not in the interest of either side to keep the vehicle idle so that I am also inclined to go into the correctness of the order passed by the learned Magistrate on 25[th] October, 2021. 5. It is the common case that the said vehicle, a Benz car of 2016 model, belonged to one Bobby, the de facto complainant in the crime. There is absolutely no dispute on this aspect. He was the registered owner of the vehicle. While so, the learned counsel for the petitioner submits, he had, on a financial transaction, entrusted the vehicle with Jayaprakash, the 1[st] accused in the crime, who in turn sold the vehicle to the 2[nd] accused, the petitioner for valuable consideration. Thus, after getting consideration, the ownership of the vehicle was transferred to the petitioner and the petitioner approached the Regional Transport Authority for getting the ownership mutated in his name with proper records. As the office stands digitized, when Crl.M.C. No. 464 of 2022 7 such an application was moved, the registered owner was given an OTP and after confirming that the application was moved with the connivance of the registered owner, the ownership was transferred in the name of the petitioner, that possession of the vehicle was also with him. While so, such a false prosecution was launched by Bobby against Jayaprakash and himself and the police seized the vehicle. The police summoned both of them so that the vehicle was surrendered before the police and that was how it reached the Court. According to the learned counsel for the petitioner, the car was taken into custody by the police from the possession of the petitioner and therefore it has to be returned to him, he is the better person to hold it not only because he is the registered owner of the vehicle but because it was seized by the police from his possession and therefore the rival contention is to be ignored. The learned counsel also submitted that the police was acting Crl.M.C. No. 464 of 2022 8 in a very partisan and arbitrary manner. The said Bobby who collected consideration from the first accused had simultaneously entered into an agreement with the Car Club belonging to the first respondent and thus documents were created as though the vehicle was sold to the first respondent and seized from the possession of the first respondent and on that basis, a rival claim was made. But the Court, without appreciating the contentions of the parties, directed to entrust the vehicle with the first respondent, which is illegal. That order is now sought to be set aside. 6. On the other hand, the learned counsel for the first respondent submitted that there was only a financial deal between the de facto complainant and Jayapraksh. The de facto complainant had availed a loan of Rs.3,00,000/- from the said Jayaprakash, pledging the original RC book of the vehicle. However, this book was dishonestly handed over Crl.M.C. No. 464 of 2022 9 by the first accused to the second accused and thus documents were created as though the de facto complainant had sold the vehicle to the second accused/the petitioner; later by forging the signature of the de facto complainant, the second accused moved the Regional Transport Authority and transferred ownership of the vehicle in his name, which cannot be accepted in right earnest. The learned counsel also submitted that there are documents to show that the first respondent had paid a total consideration of Rs.16,20,000/- to the registered owner and that was how he came in possession of the vehicle. 7. The statement of the first respondent indicates that on 31.12.2020 he had paid an amount of Rs.10,85,000/- to the de facto complainant by way of bank transfer, had also paid Rs.66,000/- to the credit card of the wife of the registered owner and later he paid Rs.4,00,000/- to the first Crl.M.C. No. 464 of 2022 10 accused; he owes an amount of Rs.69,000/- to the first accused. That is the split-up of the sum of Rs.16,20,000/-. According to him, those payments were made on the basis of an agreement for sale executed between himself and the registered owner, the said Bobby and thus possession of the vehicle was handed over to him. He is running business in the sale of used premium cars, for the last more than 25 years; he has earned a name of his own in the business and thus entire transactions were made through bank transfers only and the car was taken and parked in his showroom. While so, the henchmen of the accused persons came there, they wanted to take a test drive of the car and under the pretext of making test drive driven away the vehicle and in that process one Manikandan, a staff member of the first respondent was knocked down and injured for which separate crime has been registered in Ollur police station as Crime No. 1310 of 2021. According Crl.M.C. No. 464 of 2022 11 to him, it was through dishonest means that the vehicle was taken away from his showroom. Now the police has seized the same that he has already moved before the Regional Transport Authority for getting duplicate registration certificate which is under process. According to him, the claim raised by the petitioner, that is the second accused, is false, he is not entitled to get interim custody of the vehicle. On the other hand, he is the owner of the vehicle, and therefore he is entitled to get possession. 8. As noticed earlier, the learned Senior Public Prosecutor has caused the production of a report from the Sub Inspector of Police, Ollur police station who has given a statement somewhat supporting the first respondent. The report dated 24.01.2022 indicates that the said crime, Crime No. 1315 of 2021 was registered on the basis of the First Information given by Bobby, the registered owner of the vehicle. On that basis the accused persons, that is Crl.M.C. No. 464 of 2022 12 Jayaprakash and the petitioner were arrested and were in judicial custody and later they were released on bail. The investigation revealed that the de facto complainant had borrowed an amount of Rs.3,00,000/- from the first accused, as a security the original RC book was entrusted with him. Later, by dishonest means, the registration of the car was deceitfully transferred in the name of the second accused without his knowledge and connivance. Investigation revealed that, when an application for transferring registration was moved before the Regional Transport Authority, the phone number of the first accused Jayaprakash '9645696018' was given, so that OTP was sent to the number of the first accused and thus the transfer of registry was effected through dishonest means and transfer of ownership was obtained through deceitful means. Moreover, the report of the Investigating Officer also supports the claim of the first respondent that an Crl.M.C. No. 464 of 2022 13 amount of Rs.10,85,000/- was paid to the de facto complainant. Later Rs.66,000/- was paid to the credit card and then Rs.4,00,000/- was paid by the first respondent to the first accused Jayaprakash, that the car was taken dishonestly from the showroom of Car Club in which the first respondent is the partner. The report contains details of the criminal antecedents of the accused as well. 9. In other words, the contentions of the parties staking claim over the vehicle are cutting each other. While the petitioner said that he is the registered owner of the vehicle, it is the specific case of the first respondent that the ownership was transferred to his name through dishonest means. There are reasons to uphold this contention. It is the common case that the registered owner of the vehicle was Bobby, who is the de facto complainant who launched the prosecution. The said Bobby has stated in clear terms that he did not transfer or sell the vehicle to Crl.M.C. No. 464 of 2022 14 Jayaprakash or the petitioner. On the other hand, he had transferred possession of the vehicle to the first respondent only, and that he had received an amount of Rs.10,85,000/and Rs.66,000/-. The first respondent had also paid another amount of Rs.4,00,000/- to the first accused towards the amount due from the de facto complainant. Therefore the claim that he is the registered owner of the vehicle cannot be accepted in right earnest. 10. Secondly, the consideration paid by the first respondent is also supported by materials. There are documents to say that he had parted with an amount of Rs.15,51,000/- to the de facto complainant as well as the first accused, whereas no such document is there to show that the petitioner had paid consideration. I had specifically put a query to the learned counsel for the petitioner whether there are supporting documents to say that the petitioner had purchased the vehicle from the de Crl.M.C. No. 464 of 2022 15 facto complainant. But no material proving payment of consideration is available. On the other hand, supporting documents are available with the first respondent which have been produced along with the counter-affidavit. 11. Thirdly, even though it is stated that he had handed over possession of the vehicle to the police, the learned counsel for the first respondent submitted that there are CCTV footages from the car showroom that the vehicle was dishonestly removed from the showroom by the henchmen of the petitioner. The statement of the Investigating Officer also supports the version of the first respondent. 12. Here the application is under Section 451 of the Cr.P.C. The case is under investigation. The present probe as to who is the better person entitled to keep possession of the vehicle. After considering rival contentions and materials, I have no doubt that the learned Magistrate has Crl.M.C. No. 464 of 2022 16 appreciated the rival contentions properly and decided to entrust the vehicle with the 1[st] respondent which cannot be called in question. 13. On these considerations, Annexure-VII order of the learned Judicial First Class Magistrate-III, Thrissur is not liable to be interfered with and the Criminal Miscellaneous Case is devoid of merits and is dismissed. 14. Before parting with, it was submitted that even though the vehicle was ordered to be handed over to the first respondent, on the ground of filing of the revision and then this Criminal Miscellaneous Case, delivery of the vehicle is being delayed; that cannot be accepted. Unless an order of stay was obtained and produced before court, there was no impediment for the court to release the vehicle on the basis of the order passed by the Magistrate in October, 2021. Crl.M.C. No. 464 of 2022 17 ## The Criminal Miscellaneous Case is dismissed. **Sd/-** **K. HARIPAL JUDGE** RMV/11/02/2022 18 ## **APPENDIX OF CRL.MC 464/2022** |**PETITIONER'S ANNEXURES:**|| |---|---| |**Annexure I**|**TRUE COPY OF THE CRL.M.P. NO. 1216 OF 2021 FILED BEFORE**| ||**THE JFCM -III THRISSUR.**| |**Annexure II**|**TRUE COPY OF THE AGREEMENT 6.1.2021 ALLEGEDLY**| ||**EXECUTED WITH SRI. JAYAPRAKASH, 2ND ACCUSED IN THE**| ||**CRIME CASE.**| |**Annexure III**|**TRUE COPY OF THE AGREEMENT DATED 31.12.2020 EXECUTED**| ||**BETWEEN 2ND RESPONDENT AND BAIJU.**| |**Annexure IV**|**TRUE COPY OF THE REGISTRATION CERTIFICATE IN THE**| ||**NAME OF THE PETITIONER.**| |**Annexure V**|**TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN**| ||**CRL.M.P. NO. 1216 OF 2021.**| |**Annexure V1**|**TRUE COPY OF THE CRL.M.P. NO. 1349 OF 2021 FILED BY THE**| ||**PETITIONER IN JFMC -II.**| |**Annexure VII**|**TRUE COPY OF THE ORDER DATED 25.10.2021 IN CRL.M.P. NOS**| ||**1216 AND 1349 OF 2021 OF THE JFCM -II, THRISSUR.**| |**Annexure VIII**|**TRUE COPY OF THE COMMON ORDER IN CRL. R.P. NOS. 112 AND**| ||**113 OF 2021 OF THE I ADDL. SESSIONS COURT, THRISSUR.**| |**Annexure IX**|**TRUE COPY OF THE APPLICATION DATED 2.11.2021 SUBMITTED**| ||**BY THE PETITIONER TO THE PUBLIC INFORMATION OFFICER.**| |**Annexure X**|**TRUE COPY OF THE REPLY DATED 18.11.2021 OF THE PUBLIC**| ||**INFORMATION OFFICER, RTO, THRISSUR.**| |**Annexure XI**|**TRUE COPY OF THE APPLICATION DATED 26.4.2021 SUBMITTED**| ||**BY THE DE FACTO COMPLAINANT.**| |**RESPONDENT ANNEXURES**|| |**Annexure R1(B)**|**A TRUE COPY OF THE AGREEMENT DATED 31.12.2020.**| |**Annexure R1(C)**|**A TRUE COPY OF THE AGREEMENT DATED 06.01.2021.**| |**Annexure R1(D)**|**A TRUE COPY OF THE BANK STATEMENT OF CAR CLUB**| ||**SHOWING TRANSFER OF THE AMOUNT DATED 31.12.2021.**| |**Annexure R1(E)**|**A TRUE COPY OF THE STATEMENT OF HDFC LOAN ACCOUNT**| ||**OF THE C A BOBBY.**| |**Annexure R1(F)**|**A TRUE COPY OF THE PETITION PREFERRED BY C A BOBBY**| ||**REPORTING LOSS OF RC ON 09.01.2021**| |**Annexure R1(G)**|**A PETITION WAS PREFERRED BY THE 1ST RESPONDENT ON**| ||**12.08.2021 ALLEGING THE COMMISSION OF THE CRIME.**| |**Annexure R1(H)**|**A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIVED BY**| ||**THE 1ST RESPONDENT ON 12.08.2021 FROM THE CITY POLICE**| ||**OFFICE.**| |**Annexure R1(I)**|**A TRUE COPY OF THE PETITION PREFERRED BY C A BOBBY**| ||**FOR CANCELLATION OF THE RC FRAUDULENTLY OBTAINED**| ||**BEFORE THE RTO, THRISSUR ON 13.08.2021.**| |**Annexure R1(J)**|**A TRUE COPY OF THE AFFIDAVIT DATED 07.09.2021.**| |**Annexure R1(K)**|**A TRUE COPY OF THE BAIL ORDER IN B.A.NO.7177 OF 2021**| ||**DATED 25.10.2021.**|