P. M. Ibrahim v Union Bank of India, Circle Inspector of Police, State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 2ND DAY OF JUNE 2014/12TH JYAISHTA, 1936** ## **Crl.MC.No. 3630 of 2010** **----------------------------------** **AGAINST THE ORDER IN CMP 1411/2010 of CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM CRIME NO.295/2010 OF CENTRAL POLICE STATION, ERNAKULAM** **-------------** ## **PETITIONER(S)/PETITIONER:** **-----------------------------------------** **P.M.IBRAHIM, S/O.MYTHEEN, AGED 37 YEARS, PARAKKAL PUTHENPURAYIL HOUSE, KALOOR, KOCHI-682 017, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.O.D.SIVADAS** ## **RESPONDENT(S)/RESPONDENTS AND STATE:** **------------------------------------------------------------------** ## **1. THE MANAGER,** **UNION BANK OF INDIA, M.G.ROAD BRANCH, ERNAKULAM-682031.** ## **2. THE CIRCLE INSPECTOR OF POLICE,** **CENTRAL POLICE STATION, ERNAKULAM682031.** ## **3. STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R1 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA R2 & 3 BY SENIOR PUBLIC PROSECUTOR SRI.VIJU THOMAS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02-06-2014, ALONG WITH CRMC. 1743/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 3630 of 2010** ## **----------------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES** **----------------------------------------** - **A1: COPY OF RETAIL INVOICE ISSUED BY THE DEALER** - **A2: COPY OF THE SALE CERTIFICATE DATED 31/12/2008** - **A3: COPY OF THE INSURANCE COVER NOTE AND ISSUANCE POLICY DATED 31/12/2008** - **A4: COPY OF THE TEMPORARY REGISTRATION CERTIFICATE DATAED 1/1/2009** - **A5: COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE KL7/K 3451** - **A6: COPY OF THE RC PARTICULARS OF THE VEHICLE ISSUED FROM THE RT OFFICE DATED 2/2/2009** - **A7: COPY OF THE AGREEMENT DATED 15/1/2009 ENTERED BY THE PETITIONER** - **A8: COPY THE REGISTRATION CERTIFICATE OF THE VEHICLE AFTER TRANSFER OF THE SAME TO THE PETITIONER BEFORE THE CJM COURT, THALASSERY** - **A9: COPY OF THE CHARGE SHEET FILED BY THE POLICE IN CRIME NO.259/09 (CC NO.250/2010) DATED 25/1/2010** - **A10: COPY OF THE COUNTER AFFIDVIT FILED BY THE BANK IN CRL.MP.NO.1411/2010 DATED 15/7/2010.** - **A11: COPY THE ORDER DATED 18/8/10 IN CRL.MP.NO.1411 OF 2010 (PASSED BY THE CJM COURT, ERNAKULAM.** ## **RESPONDENTS' ANNEXURES** **------------------------------------------** - **R1(A): COPY OF THE AGREEMENT DATED 30/12/08 EXECUTED BETWEEN MR.BOBBY ABRAHAM TITUS AND THE 1ST RESPONDENT** - **R1(B): COPY OF THE LETTER OF UNDERTAKING DATED 30/12/2008 EXECUTED BY MR.BOBBY ABRAHAM TITUS IN FAVOUR OF THE 1ST RESPONDENT** - **R1(C): COPY OF THE LETTER OF UNDERTAKING DATED 30/12/2008 EXECUTED BY THE GUARANTOR THE WIFE OF MR.BOBBY ABRAHAM TITUS** - **R1(D): COPY OF THE CONVEYING OF SANCTION, TERMS AND CONDITIONS OF LOAN AGREEMENT DATED 30/12/2008 ACCEPTED BY MR.BOBBY ABRAHAM TITUS AND HIS WIFE** ## **PJ** **...2/-** **..2..** **Crl.MC.No. 3630 of 2010** ## **----------------------------------** - **R1(E); COPY OF THE PROMISSORY NOTE DATED 30/12/2008 EXECUTED BY MR.BOBBY ABRAHAM TITUS IN FAVOUR OF THE 1ST RESPONDENT** - **R1(F): COPY OF THE INVOICE NO.VSA/08-09/0949 DATED 2/1/09 OF THE NIPON TOYOTYA, ISSUED BY M/S.MOOPAN MOTOR PVT.LTD.,SUBMITTED BY MR.BOBBY ABRAHAM TITUS BEFORE THE 1ST RESPONDENT** - **R1(G): COPY OF THE INSURANCE POLICY OF THE VEHICLE BEARING CHASIS NO.MBJ 11 JV 4007157524 AND ENGINE NO.2 KD 621 9488, AND BEARING THE ENDORSEMENT HYPATHECATTED TO UNION BANK OF INDIA, MG ROAD, ERNAKULAM, SUBMITTED BY MR. BOBBY ABRAHAM TITUS BEFORE THE 1ST RESPONDENT** - **R1(H): COPY OF THE INVOICE NO.VSA/08-09/0949 DATED 2/1/09 SUBMITTED BY MR.BOBBY ABRAHAM TITUS BEFORE THE 1ST RESPONDENT** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **P.D. RAJAN, J.** ------------------------------------------- Crl.M.C. Nos. 3630/2010 & 1743 of 2011 ---------------------------------------------Dated this the 2[nd] day of June, 2014 ## **ORDER** These petitions are filed u/s.482 of the Code of Criminal Procedure to quash Annexure-A11 order in Crl.M.P.No.1411/2010 of Chief Judicial Magistrate Court, Ernakulam, which is produced in Crl.M.C.No.3630/2010 and Annexure-A9 common order in Crl.M.P.Nos.3411/2009 and 3412/2009 by Chief Judicial Magistrate Court, Ernakulam in Crime No.295/2009 of Central Police Station, Ernakulam, which is produced in Crl.M.C.No.1743/2011. The above petitions were filed by the petitioner u/s.451 & 457 Cr.P.C. for interim custody of a vehicle bearing Registration No.KL7-BK-3451 to the petitioner, who is the registered owner of the above vehicle. Since the disputes in both the Crl.M.Cs are common, I can dispose these Crl.M.Cs by a common order. 2. The petitioner is a business man. He is the bonafide Crl.M.C.No.3630/10 & con.case 2 purchaser of Toyota Innova Motor Vehicle from one Mr. Boby Abraham Titus, who is the accused in the above crime. He made believed the petitioner that the vehicle was purchased by him without obtaining finance from any bank and as per registration certificate, there was no hypothecation. Accordingly, the petitioner entered into an agreement on 15.01.2009 for purchase of the vehicle for sale consideration of Rs.8,50,000/- and he paid Rs.7,00,000/- on the date of agreement itself and the possession of the vehicle was given to the petitioner. When the original R.C. Book of the vehicle was handed over to the petitioner on 24.1.2009, the balance sale consideration of Rs.1,50,000/- was paid by the petitioner to Boby Abraham Titus. While so, the petitioner was arrayed as 2[nd] accused in Crime No.198/2009 of Central Police Station, Thripunuthura, which was transferred to Central Police Station, Ernakulam and re-registered as Crime No.295/2009 and charge sheeted against the 1[st] accused,. The Police took the custody of the vehicle. Subsequently the petitioner and the bank filed applications for interim custody of the vehicle and the petitioner's application was dismissed and Crl.M.C.No.3630/10 & con.case 3 custody of the vehicle was given to the bank as per AnnexureA9 order in Crl.M.C.No.1743/2011. Without challenging that order, the petitioner Challenged Annexure-A11 order in Crl.M.C.No.3630/2010. Accordingly, the petitioner seeks a direction to handover possession of the vehicle to the petitioner by invoking the inherent jurisdiction u/s.482 Cr.P.C. Otherwise, it will cause irreparable injury and hardship to him. Hence prays for interference. 3. The learned counsel appearing for the petitioner contended that the petitioner is a bonafide purchaser and he purchased the vehicle from Boby Abraham Titus. When he purchased the car, there was no hypothecation. Petitioner produced Annexures-A1 to A8 in Crl.M.C.No.3630/2010. After registering the case, Union Bank of India approached the Court for obtaining possession of the vehicle by claiming that the vehicle was hypothecated to the bank and the bank advanced money to the tune of Rs.8,50,000/-. Suppressing this fact, the vehicle was transferred in favour of the petitioner. According to the petitioner, non-endorsement of those details in R.C. book and other documents will not affect his right. 4 Crl.M.C.No.3630/10 & con.case Therefore, he is entitled to get the delivery of the vehicle from the Court and the interim direction issued in Annexures-A9 and A11 is unsustainable in law and is to be quashed. The petitioner relied the decision in _**Jacob**_ v. _**Jayabharat Credit and Investment**_ [1983 KLHC 164], 4. The learned counsel appearing for the 1[st] respondent strongly resisted the above contention and contended that there was valid agreement executed between Boby Abraham Titus and the 1[st] respondent before purchasing the vehicle. The bank recommended to sanction the amount of Rs.8.5 lakhs to the borrower on the basis of the direction of the Assistant Manager and accordingly, the bank had issued a pay order in favour of Mooppan Ltd and they encashed it. In Clause 8 of Annex-R1(a), there was specific undertaking by the actual purchaser. As per the undertaking, the actual purchaser Boby Abraham Titus is bound to abide by the terms and conditions of the loan agreement. It is also mentioned that the loan was availed to the original purchaser as per the direction of the RBI. Therefore, the borrower get the right of Crl.M.C.No.3630/10 & con.case 5 the seller alone. There was no repayment of the loan amount and therefore, the vehicle was in the custody of the bank and they are using that vehicle in full condition. Without payment of due amount or the loan amount, the petitioner is not entitled to get the custody of the vehicle. 5. Now the question that arises for consideration is whether Annexures-A9 and A11 orders are an abuse of the process of the Court or any order is necessary to give effect to the order issued by the learned Magistrate, by invoking the inherent jurisdiction. 6. The inherent power can be invoked by the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of Court to otherwise to secure the ends of justice. While exercising such jurisdiction,this Court cannot ordinarily analyse the evidence adduced by the petitioner or cannot conduct an enquiry with regard to the reliability of the evidence in the alleged facts. Prima facie satisfaction of the case is sufficient. Apex Court in _**State of Haryana**_ V. _**Bhajanlal**_ [1992 SCC (Crl) 426] pointed out that: Crl.M.C.No.3630/10 & con.case 6 “where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the proceedings are liable to be quashed”. 7. I have considered the documents produced by the petitioner and the 1[st] respondent. Since both the cases are connected together, I have perused the documents in Crl.M.C.No.1743/2011. Clause 8 and 10 of R1(a) produced by the 1[s] respondent reads as follows: “8. The Borrower agrees to have the vehilce registered in Borrower's name, with an endorsement in the Certificate of Registration that the vehicle is under hypothecation with the Bank. The Borrower shall not cancel such endorsement in the Certificate of Registration of the vehicle until the loan advanced with interest and all moneys payable under the Agreement is paid in full to the Bank. All charges of registration, payment of taxes, licence fees or insurance premia on the vehicle shall be paid by the Borrower. 10. As security for the repayment of the loan by the Borrower to the Bank, the Borrower hereby hypothecates the vehicle by way of first charge in favour of the Bank.” Annexure-R1(b) is the letter of undertaking executed by the borrower in favour of the bank . Any transaction ignoring Annexure-R1(a) and R1(b) is not valid in the eye of law. In Crl.M.C.No.3630/10 & con.case 7 such circumstances, ignoring hypothecation agreement made by the original owner and the Union Bank of India, Boby Abraham Titus transferred the vehicle to the petitioner, the present purchaser. That transfer itself is not according to law. Considering that aspect, the learned Magistrate granted interim custody of the vehicle to the financiar, Union Bank of India. Therefore, I am not making any observation with regard to Annexures-A9 anad A11 orders passed by the Chief Judicial Magistrate, Ernakulam. Considering the circumstances highlighted by both parties, I am of the opinion that this is not a fit case to invoke the inherent jurisdiction u/s.482 Cr.P.C. Since the matter is pending in Court from 2009, the learned Magistrate is directed to expedite the trial of the case and dispose the case within six months from the date of receipt of a copy of this order. However, I make it clear that any observation made in this case will not affect the trial of the case. Crl.M.Cs are disposed of as above. ## **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.3630/10 & con.case 8 Crl.M.C.No.3630/10 & con.case 9