Sai Service Private Limited and Ashok Kumar v. State of Kerala and Nazar

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 1[ST] DAY OF JUNE 2023 / 11TH JYAISHTA, 1945`** ## **`CRL.MC NO. 2802 OF 2023 AGAINST THE ORDER/JUDGMENTCMP 201/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KOLENCHERRY`** ## **`PETITIONER/S:`** ``` 1SAISERVICEPRIVATELIMITED CHERANELLOREROAD,EDAPALLY,KOCHI-682024, REPRESENTEDBYITSAUTHORISEDSIGNATORY, SRI.ASHOKKUMAR,AGED50YEARS, S/O.RAMAKRISHNAN,VALIYAKATTILHOUSE, - APPAKKADU,OTTAPALAM,PIN678007 2ASHOKKUMAR AGED50YEARS S/O.RAMAKRISHNAN,VALIYAKATTILHOUSE, APPAKKADU,OTTAPALAM,AMBALAPARAVILLAGE, MANNURWESTP.O,PALAKKAD, PURCHASEMANAGERANDAUTHORISEDSIGNATORY, `TRUEVALUE',SAISERVICESPRIVATELIMITED, - PIN678642 BYADVS. P.JAYABALMENON REKHAAGARWAL ``` ## **`RESPONDENT/S:`** ``` 1STATEOFKERALA REPRESENTEDBYTHESUBINSPECTOROFPOLICE, PUTHENCRUZPOLICESTATION, - PUTHENCRUZ,PIN682308 2NAZAR S/O.BEEVI,AGED50YEARS, THEKKUMKATTILVEETIL,NEARCIVILSTATION, - MUVATTUPUZHA,PIN686673 BYADVS. MOLTYMAJEED ``` ``` CRL.MCNO.2802OF2023& Conn.Cases. ``` **==> picture [9 x 8] intentionally omitted <==** ``` C.A.MAJEED(M-36) K.H.ASIF(K/478/2007) P.B.UNNIKRISHNANNAIR(K/445/2012) RUBENGEORGEROCK(K/636/2014) ``` ``` SRIVIPINNARAYANSRPP SRIPRASHANTHMPPP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON01.06.2023,ALONGWITHCrl.MC.3101/2023,3169/2023,THE COURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.2802OF2023& Conn.Cases. ``` ``` 3 ``` ``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV THURSDAY,THE1[ST]DAYOFJUNE2023/11THJYAISHTA,1945 ``` ``` CRL.MCNO.3101OF2023 AGAINSTTHEORDER/JUDGMENTCMP269/2023OFJUDICIAL MAGISTRATEOFFIRSTCLASS,KOLENCHERRY CMP169/2023OFJUDICIALMAGISTRATEOFFIRSTCLASS ,KOLENCHERRY ``` ## **`PETITIONER/S:`** ``` 1SAISERVICEPRIVATELIMITED CHERANELLOREROAD,EDAPALLY,KOCHI- REPRESENTEDBYITSAUTHORISEDSIGNATORY, SRI.ASHOKKUMAR,AGED50YEARS, S/O.RAMAKRISHNAN,VALIYAKATTILHOUSE, - APPAKKADU,OTTAPALAM.678007,PIN682024 2ASHOKKUMAR AGED50YEARS S/O.RAMAKRISHNAN,VALIYAKATTIL HOUSE,APPAKKADU,OTTAPALAM,AMBALAPARA VILLAGE,MANNURWESTP.O,PALAKKAD, PURCHASEMANAGERANDAUTHORISEDSIGNATORY, TRUEVALUE,SAISERVICESPRIVATELIMITED,PIN - 678642 BYADVS. P.JAYABALMENON REKHAAGARWAL ``` ## **`RESPONDENT/S:`** ``` 1STATEOFKERALA REPRESENTEDBYTHESUBINSPECTOROFPOLICE, PUTHENCRUZPOLICESTATION, - PUTHENCRUZ,PIN682308 ``` ``` CRL.MCNO.2802OF2023& Conn.Cases. ``` ``` 4 ``` ``` 2SHIYASN.B AGED41YEARS S/O.BASHEER,NEDUVELILHOUSE, MARKETROAD,ERATTUPETTA, - KOTTAYAM,PIN686121 ``` ``` BYADVS. IEANS.C.CHAMAKKALA K.SUJITH(THURAVOOR)(K/133/2016) AADHALTHANKACHAN(K/001107/2022) ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON01.06.2023,ALONGWITHCrl.MC.2802/2023ANDCONNECTED CASES,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.2802OF2023& Conn.Cases. ``` ``` 5 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV THURSDAY,THE1[ST]DAYOFJUNE2023/11THJYAISHTA,1945 ``` ``` CRL.MCNO.3169OF2023 AGAINSTTHEORDER/JUDGMENTCMP92/2023OFJUDICIAL MAGISTRATEOFFIRSTCLASS,KOLENCHERRY ``` ## **`PETITIONER/S:`** ``` 1SAISERVICEPRIVATELIMITED CHERANELLOREROAD,EDAPALLY,KOCHI-682024, REPRESENTEDBYITSAUTHORISEDSIGNATORY, SRI.ASHOKKUMAR,AGED50YEARS, S/O.RAMAKRISHNAN,VALIYAKATTILHOUSE, - APPAKKATTU,OTTAPALAM.,PIN678007 2ASHOKKUMAR AGED50YEARS S/O.RAMAKRISHNAN,VALIYAKATTILHOUSE, APPAKKATTU,OTTAPALAM,AMBALAPARAVILLAGE, MANNURWESTP.O,PALAKKAD, PURCHASEMANAGERANDAUTHORISEDSIGNATORY,` TRUEVALUE',SAISERVICESPRIVATELIMITED, - PIN678642 BYADVS. P.JAYABALMENON REKHAAGARWAL ``` ## **`RESPONDENT/S:`** ``` 1STATEOFKERALA REPRESENTEDBYTHESUBINSPECTOROFPOLICE, PUTHENCRUZPOLICESTATION, - PUTHENCRUZ,PIN682308 2SHAMEERK.K S/O.KUNJUKUNJU, ``` ``` CRL.MCNO.2802OF2023& Conn.Cases. ``` ``` 6 ``` ``` KUNATHHOUSE,PULIKKUNNAPPADY, PALLARIMANGALAM, - POTHANOKKADU.,PIN686671 ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON01.06.2023,ALONGWITHCrl.MC.2802/2023ANDCONNECTED CASES,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.2802OF2023& Conn.Cases. ``` ``` 7 ``` ## **ORDER** The 1st petitioner herein, M/s. Sai Service Private Limited is a company registered under the Companies Act, 1956. They contend that they are the authorized sales and service partner for the vehicles manufactured by Maruti Suzuki India Ltd. It is contended that the 1st petitioner has a subsidiary by name “M/s. True Value”, which is set up to be an authorized reseller of used cars. 2. According to the petitioner, a certain Febin P. Ibrahim was the “Team Leader” in charge of “M/s. True Value” showroom at Kolencherry, Piravam, and Koothattukulam. Being the team leader, and the authorized signatory, the aforesaid Febin, was empowered to deal with and sell the cars. 3. While so it came to the notice of the petitioner that with the intention to cause wrongful loss to the petitioners herein and to gain unlawfully, the aforesaid Febin P. Ibrahim forged records and thereafter sold cars bearing registration Nos. KL-40-K-9867, KL-39-B-2409, KL-01-BB-0019, KL-63-C-6364, KL-34-B-0168, and KL-40-B-9428 and thereby caused a loss of Rs.11,35,000/-. Based on the complaint lodged by the 2nd petitioner, a crime was registered interalia under sections 406, ``` CRL.MCNO.2802OF2023& Conn.Cases. ``` ``` 8 ``` 420, and 408 of the IPC. A Tata Indica Car bearing Registration No. KL-01-BB-0019, a Volkswagen Polo car bearing No. KL-63-C-6364 and a Maruti Alto Car bearing No. KL-40-B-9428 were seized by the Police. Records reveal that the aforesaid Febin P. Ibrahim, acting as the authorized signatory of the 1st petitioner herein, had sold the vehicles to the 2nd respondent in these cases, and registration has also been transferred to their name. 4. After the seizure of the cars, separate applications under Section 451 of the Code were filed before the learned Magistrate by the petitioner herein and also the 2nd respondent in all these cases, who had respectively purchased the cars from the authorized signatory. The learned Magistrate before whom the application for interim custody had come up considered the rival contentions and took note of the fact that the second respondent herein in all these cases were bonafide purchasers for value and they were in possession of the vehicle and they being the persons in whose name the R.C. book also stood, proceeded to grant the interim custody of the vehicles to the 2nd respondents by imposing appropriate conditions. ``` CRL.MCNO.2802OF2023& Conn.Cases. ``` ``` 9 ``` 5. The aforesaid order is under challenge in this petition, which is filed under section 482 of the Code of Criminal Procedure. 6. Sri. Jayabal Menon, the learned counsel appearing for the petitioners, submitted that the order passed by the learned Magistrate cannot be sustained under law. According to the learned counsel, while passing the order, the learned Magistrate failed to take note of the fact that the 2nd petitioner herein was the defacto complainant and also that the allegations in the FIR were that the team leader Febin P. Ibrahim had manipulated records and had sold the vehicles without authority. It is submitted that as the possession of the vehicle and the transfer of the registration certificate was in pursuance to the commission of a crime, the registered owners were not entitled to claim custody of the vehicles. The learned counsel would further point out that the records which are produced as Annexures-3 to 7, which are the purchase agreement in respect of the vehicle, delivery receipts, Form Nos. 29 and 30 would show that the petitioners were entitled to possess the vehicles in terms of the original purchase. However, those documents were also not adverted to by the learned Magistrate. ``` CRL.MCNO.2802OF2023& Conn.Cases. ``` ``` 10 ``` 7. The learned counsel appearing for the 2nd respondent opposed the submissions advanced by the learned counsel appearing for the petitioner. It is submitted that the learned Magistrate took note of the fact that the registration certificate of the disputed vehicles was with the second respondent in the respective cases. The 2nd respondent in the respective cases had also placed on record the original of the R.C. Book as well as the Insurance Certificate, and the vehicles were also recovered from their possession. The Magistrate also took note of the fact that the vehicles were sold to them by the authorized signatory. Only the 2nd respondent would be able to operate the vehicle, and in that view of the matter, the order does not warrant any interference. 8. I have considered the submissions advanced and have gone through the records made available. 9. I find from the records that the 2nd respondent in these cases had purchased these vehicles from the authorized signatory of the 1st petitioner. The registration Certificate has been transferred in their favor, and they were in possession of the vehicle. The learned magistrate also noted that the petitioners were not in possession of any of the original documents to establish that they are entitled to possess and ``` CRL.MCNO.2802OF2023& Conn.Cases. ``` ``` 11 ``` operate the vehicles involved. Though the contention of the petitioners is that the possession of the 2nd respondent was in pursuance to a commission of a crime by the aforesaid Febin P. Ibrahim, the said fact is to be established at a later stage based on materials to be adduced in court. The continued retention of the vehicles in the Police Station would be against the directions issued by the Hon’ble Supreme Court in **Sunderbhai Ambalal Desai v. State of Gujarat** [2022 (10) SCC 283]. In that view of the matter, I do not think that the order passed by the learned Magistrate warrants any interference. These petitions are dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** ``` avs ``` ``` CRL.MCNO.2802OF2023& Conn.Cases. ``` ``` 12 ``` ## **`APPENDIX OF CRL.MC 3101/2023`** ## **`PETITIONER ANNEXURES`** |`Annexure1`||`TRUE COPY OF THE F.I.R IN CRIME NO. 22 OF 2023 OF`| |---|---|---| |||`PUTHECRUZ POLICE STATION, DATED 05/01/2023`| |`Annexure `|`2`|`TRUE COPY OF THE CLAIM PETITION, CRL. M. P NO.169`| |||`OF2013 IN CRIME NO. 22 OF2023 FILED BY THE`| |||`PETITIONERS, DATED 15/02/2023`| |`Annexure `|`3`|`THE TRUE COPY OF SCREEN SHOT OF THE KERALA MOTOR`| |||`VEHICLE DEPARTMENT SITE, DATED NIL .`| |`Annexure `|`4`|`THE TRUE COPY OF THE THE R.C BOOK OF THE CAR KL 63`| |||`C 6364`| |`Annexure `|`5`|`THE TRUE COPY OF THE PURCHASE AGREEMENT DATED`| |||`29/11/2022`| |`Annexure `|`6`|`THE TRUE COPY OF THE DELIVERY RECEIPT DATED`| |||`13/08/2022`| |`Annexure `|`7`|`THE TRUE COPY OF FORM 29 DATED NIL`| |`Annexure `|`8`|`THE TRUE COPY OF FORM 30 DATED NIL`| |`Annexure `|`9`|`THE TRUE COPY OF THE SALE RECEIPT DATED 13/08/2022`| |`Annexure `|`10`|`THE CERTIFIED COPY OF THE COMMON ORDER OF THE`| |||`JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERY`| |||`IN C.M.P NO. 269 OF2023 AND C.M.P NO. 169 OF 2023`| |||`IN CRIME NO. 22 OF 2023 OF PUTHENCRUZ POLICE`| |||`STATION, DATED 21/03/2023`| ``` CRL.MCNO.2802OF2023& Conn.Cases. ``` ``` 13 ``` ## **`APPENDIX OF CRL.MC 3169/2023`** ## **`PETITIONER ANNEXURES`** |`Annexure1`|`TRUE COPY OF THE F.I.R IN CRIME NO. 22 OF 2023 OF`| |---|---| ||`PUTHENCRUZ POLICE STATION, DATED 05/01/2023`| |`Annexure2`|`TRUE COPY OF THE CLAIM PETITION, CRL. M. P NO.169`| ||`OF 2013 IN CRIME NO. 22 OF2023 FILED BY THE`| ||`PETITIONERS, DATED 15/02/2023`| |`Annexure3`|`THE TRUE COPY OF SCREEN SHOT OF THE KERALA MOTOR`| ||`VEHICLE DEPARTMENT SITE, DATED NIL`| |`Annexure4`|`THE TRUE COPY OF THE THE R.C BOOK OF THE CAR KL 40`| ||`B 9428`| |`Annexure5`|`THE TRUE COPY OF THE PURCHASE AGREEMENT DATED`| ||`26/09/2022`| |`Annexure6`|`THE TRUE COPY OF THE DELIVERY RECEIPT DATED`| ||`26/09/2022`| |`Annexure7`|`THE TRUE COPY OF FORM 29 DATED NIL`| |`Annexure8`|`THE TRUE COPY OF FORM 30 DATED NIL`| |`Annexure9`|`THE TRUE COPY OF THE DECLARATION DATED 26/09/2022`| |`Annexure10`|`THE CERTIFIED COPY OF THE COMMON ORDER OF THE`| ||`JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERY`| ||`IN C.M.P NO. 92 OF2023 AND C.M.P NO. 169 OF 2023 IN`| ||`CRIME NO. 22 OF 2023 OF PUTHENCRUZ POLICE STATION,`| ||`DATED 21/03/2023`| ``` CRL.MCNO.2802OF2023& Conn.Cases. ``` ``` 14 ``` ## **`APPENDIX OF CRL.MC 2802/2023`** ## **`PETITIONER ANNEXURES`** |`Annexure `|`1`|`TRUE COPY OF THE F.I.R IN CRIME NO. 22 OF 2023 OF`| |---|---|---| |||`PUTHENCRUZ POLICE STATION, DATED 05/01/2023`| |`Annexure `|`2`|`TRUE COPY OF THE CLAIM PETITION, CRL. M. P NO.169`| |||`OF 2023 IN CRIME NO. 22 OF 2023 FILED BY THE`| |||`PETITIONERS, DATED 15/02/2023`| |`Annexure `|`3`|`THE TRUE COPY OF SCREENSHOT OF THE KERALA MOTOR`| |||`VEHICLE DEPARTMENT SITE, DATED NIL`| |`Annexure `|`4`|`THE TRUE COPY OF THE THE R.C BOOK OF THE CAR KL`| |||`01BB 0019 DATED 25.3.2011`| |`Annexure `|`5`|`THE TRUE COPY OF THE PURCHASE AGREEMENT DATED`| |||`29/11/2022`| |`Annexure `|`6`|`TRUE COPY OF THE DELIVERY RECEIPT DATED NIL`| |`Annexure `|`7`|`THE TRUE COPY OF FORM 29 DATED NIL`| |`Annexure `|`8`|`THE TRUE COPY OF FORM 30 DATED NIL`| |`Annexure `|`9`|`TRUE COPY OF THE SALE RECEIPT DATED 25/11/2022`| |`Annexure `|`10`|`CERTIFIED COPY OF THE COMMON ORDER OF THE`| |||`JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERY`| |||`IN C.M.P NO. 201 OF 2023 AND C.M.P NO.169 OF 2023`| |||`IN CRIME NO. 22 OF 2023 OF PUTHENCRUZ POLICE`| |||`STATION, DATED 21/03/2023`|