Sai Service Private Limited v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` THURSDAY,THE1[ST]DAYOFJUNE2023/11THJYAISHTA,1945 ``` ## **`CRL.MC NO. 3111 OF 2023 AGAINST THE ORDER/JUDGMENTCMP 241/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KOLENCHERRY`** ## **`PETITIONER/S:`** ``` 1SAISERVICEPRIVATELIMITED CHERANELLOREROAD,EDAPALLY,KOCHI-, REPRESENTEDBYITSAUTHORISEDSIGNATORY, SRI.ASHOKKUMAR,AGED50YEARS, S/O.RAMAKRISHNAN,VALIYAKATTILHOUSE, - APPAKKADU,OTTAPALAM.,PIN682024 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 2SUNEER S/O.MUHAMMED,PANDIRIYILVEETIL, - PEZHACKAPPILLY,MUVATTUPUZHA.,PIN686673 THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON01.06.2023,THECOURTONTHESAMEDAYPASSEDTHE FOLLOWING: ``` ``` CRL.MCNO.3111&3171OF2023 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV THURSDAY,THE1[ST]DAYOFJUNE2023/11THJYAISHTA,1945 ``` ``` CRL.MCNO.3171OF2023 AGAINSTTHEORDER/JUDGMENTCMP242/2023OFJUDICIAL 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,P.O,PALAKKAD, PURCHASEMANAGERANDAUTHORISEDSIGNATORY, TRUEVALUE,SAISERVICESPRIVATELIMITED, CHERANELLOREROAD,EDAPALLY, - KOCHI682024,PIN678642 BYADVS. P.JAYABALMENON REKHAAGARWAL ``` ## **`RESPONDENT/S:`** ``` 1STATEOFKERALA REPRESENTEDBYTHESUBINSPECTOROFPOLICE, PUTHENCRUZPOLICESTATION, - PUTHENCRUZ,PIN682308 ``` ``` CRL.MCNO.3111&3171OF2023 ``` **==> picture [8 x 8] intentionally omitted <==** ``` 2IBRAHIMANWARSHAH S/O.BASHEER,PARAMBILVEETIL, PALLIKKAVALABHAGAM, - PERUMBAVOOR.,PIN603302 ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSION ON01.06.2023,THECOURTONTHESAMEDAYPASSEDTHE FOLLOWING: ``` ``` CRL.MCNO.3111&3171OF2023 ``` ``` 4 ``` ## **ORDER** The first 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 Kolancherry, Piravam, and Koothattukulam. Being the team leader, and the authorized signatory, the aforesaid Febin, was empowered to deal with and sell used 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 ``` CRL.MCNO.3111&3171OF2023 ``` ``` 5 ``` the second petitioner, a crime was registered inter alia under sections 406, 420, and 408 of the IPC. Two Maruti Alto Cars bearing registration No KL39 B 2409 and KL 40 K 9867 were seized by the Police. It is contended that the aforesaid Febin P. Ibrahim, acting as the authorized signatory of the 1st petitioner herein, had fraudulently sold the vehicles to the 2nd respondent in these cases. 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. The learned Magistrate before whom the application for interim custody had come up considered the rival contentions and took note of the fact neither of the parties was able to produce any original documents showing the ownership of the vehicle. The applications were accordingly rejected. 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 petitioner, 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 ``` CRL.MCNO.3111&3171OF2023 ``` ``` 6 ``` that the second 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 a crime, the petitioners were entitled to get interim custody of the vehicles. The learned counsel would further point out that the records, which are produced as Annexures-2 to 9, would show that the petitioners were entitled to possess the vehicles in terms of the original purchase from the erstwhile owner of the car. However, those documents were also not adverted to by the learned Magistrate. 7. Though notice was served on the party respondents, they have not chosen to enter appearance either in person or through counsel 8. I have considered the submissions advanced and have gone through the records made available. 9. The petitioners are admittedly authorized resellers of cars. The contention is that the Team leader who was in charge of the showroom had manipulated records and had sold the vehicles to the party respondents herein. I find that neither of the parties was able to produce ``` CRL.MCNO.3111&3171OF2023 ``` ``` 7 ``` the original records of the vehicles before the learned Magistrate. It was in the said circumstances that the applications for interim custody submitted by the petitioners were rejected. The petitioners have produced before this Court Annexure A4RC Book of the Car, Annexure A5- Purchase agreement with the erstwhile owner, Annexure A6- Delivery receipt, Annexure 7- Form 29, Annexure 8- Form 30 and Annexure A9 Sale receipt in respect of the cars. The Apex Court in **Sunderbhai Ambalal Desai v. State of Gujarat** [2002 (10) SCC 283], had observed that no purpose would be served by keeping the vehicle in police custody except the destruction of the vehicle by being exposed to the vagaries of nature. As the 2nd respondent in these cases has not appeared in spite of receipt of notice and as the cars are lying exposed to the vagaries of nature, I am of the view that necessary directions can be issued to the learned magistrate to pass orders releasing the vehicle to the concerned petitioner herein by imposing appropriate conditions. This petition will stand allowed. The Common Order dated 21.03.2023 in CMP 241/23 and CMP No 169/2023 and the common order dated 21.3.2023 in C.M.P.No. 242/2023 and C.MP. No. 187/2023 of the learned Judicial Magistrate of the I Class Kolencherry will stand quashed. ``` CRL.MCNO.3111&3171OF2023 ``` **==> picture [8 x 8] intentionally omitted <==** The learned Magistrate is directed to reconsider the application and grant interim custody of the vehicles involved to the petitioners herein by imposing appropriate conditions. ## **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` CRL.MCNO.3111&3171OF2023 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 3111/2023`** ## **`PETITIONER ANNEXURES`** ``` Annexure1TRUECOPYOFTHEF.I.RINCRIMENO.22OF2023OF PUTHENCRUZPOLICESTATION,DATED05/01/2023 Annexure2TRUECOPYOFTHECLAIMPETITION,CRL.M.PNO.169 OF2013INCRIMENO.22OF2023FILEDBYTHE PETITIONERS,DATED15/02/2023 Annexure3THETRUECOPYOFSCREENSHOTOFTHEKERALAMOTOR VEHICLEDEPARTMENTSITE,DATEDNIL Annexure4THETRUECOPYOFTHETHER.CBOOKOFTHECARKL39 B2409 Annexure5THETRUECOPYOFTHEPURCHASEAGREEMENTDATED 28/10/2022 Annexure6THETRUECOPYOFTHEDELIVERYRECEIPTDATED27/ 10/2022 Annexure7THETRUECOPYOFFORM29DATEDNIL Annexure8THETRUECOPYOFFORM30DATEDNIL Annexure9THETRUECOPYOFTHESALERECEIPTDATED28/10/2022 Annexure10THECERTIFIEDCOPYOFTHECOMMONORDEROFTHE JUDICIALFIRSTCLASSMAGISTRATECOURT,KOLENCHERY INC.M.PNO.241OF2023ANDC.M.PNO.169OF2023 INCRIMENO.22OF2023OFPUTHENCRUZPOLICE STATION,DATED21/03/2023 ``` ``` CRL.MCNO.3111&3171OF2023 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 3171/2023`** ## **`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 `|`A2`|`TRUE COPY OF THE CLAIM PETITION, CRL. M. P NO.187`| |||`OF2013 IN CRIME NO. 22 OF2023 FILED BY THE`| |||`PETITIONERS, DATED 20/02/2023`| |`Annexure `|`A3`|`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 K 9867`| |`Annexure5`||`THE TRUE COPY OF THE PURCHASE AGREEMENT DATED`| |||`10/11/2022`| |`Annexure6`||`THE TRUE COPY OF THE DELIVERY RECEIPT DATED`| |||`09/11/2022`| |`Annexure7`||`THE TRUE COPY OF FORM 29 DATED NIL`| |`Annexure8`||`THE TRUE COPY OF FORM 30 DATED NIL`| |`Annexure9`||`THE TRUE COPY OF THE SALE RECEIPT DATED`| |||`09/11/2022`| |`Annexure `|`10`|`THE CERTIFIED COPY OF THE COMMON ORDER OF THE`| |||`JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERY`| |||`IN C.M.P NO. 242 OF2023 AND C.M.P NO.. 187 OF`| |||`2023 IN CRIME NO. 22 OF 2023 OF PUTHENCRUZ POLICE`| |||`STATION, DATED 21/03/2023`|