Shaji K.A v. Prathapan V.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 12TH DAY OF JUNE 2019 / 22ND JYAISHTA, 1941** **Crl.MC.No. 5169 of 2017** **AGAINST THE ORDER DATED 29-05-2017 IN C.M.P. NO.255/2017 IN CC NO.345/2017 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY** ## **PETITIONER/ACCUSED/RESPONDENT:** **SHAJI K.A, AGED 52 YEARS, S/O.ACHUTHAN, KOVATTU HOUSE, KIDANGOOR P.O., ANGAMALY 683 572.** **BY ADVS. SRI.SANTHOSH SUBRAMANIAN SRI.E.A.THANKAPPAN SRI.SHERRY J. THOMAS SRI.S.SREEKUMAR(NORTH PARAVUR)** ## **RESPONDENTS/COMPLAINANT & STATE:** **PRATHAPAN V.S.,S/O.SANKUNNY, VELIYATTUCHIRA HOUSE, THURAVOOR P.O., AYYAMPUZHA, ANGAMALY, ERNAKULAM DISTRICT, PIN 683 586.** **BY ADVS. SRI.S.RAJEEV SRI.D.FEROZE SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **OTHER PRESENT:** **SRI. M. S. BREEZ, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 5169 of 2017** **2** ## **ORDER** This petition, under Section 482 of the Code of Criminal Procedure (“the Code”, for brevity) is preferred challenging the order dated 29.05.2017 in C.M.P. No.255 of 2017 on the file of the Judicial First Class Magistrate Court, Angamaly. By the impugned order, interim custody of a HGV- tanker, registered in the name of the petitioner herein, was handed over to the 1[st] respondent herein on conditions. 2. The proceedings had its origin on a complaint filed by the 1[st] respondent before the learned Magistrate under Section 190 of the Code. From the complaint, it is discernible that the 1[st] respondent, Sri. Prathapan, is the husband of Rathi, the sister of Sri.Shaji, the petitioner herein. 3. For the sake of convenience, parties shall be referred to by their names. It is alleged that Shaji is the registered owner of a Tanker Lorry, which is the subject matter of dispute. The said vehicle was purchased on the strength of a vehicle loan availed from the IndusInd Bank. When he committed default, securitisation proceedings were initiated by the Bank. Prathapan **Crl.MC.No. 5169 of 2017** **3** and Rathi are alleged to have extended help to Shaji to avoid the sale of the secured asset. Shaji, on the other hand, is alleged to have executed a power of attorney in the name of Prathapan authorizing him to deal with the vehicle. He also executed a sale letter in favour of Prathapan. An agreement was executed by Shaji in favour of Rathi as well. By practicing deceit, Shaji approached Prathapan and he was persuaded to part with the vehicle and the original documents by making him believe that the registration particulars would be transferred to the name of the Prathapan. Believing the words of Shaji, the possession of the vehicle was handed over on 23.08.2016. However, instead of returning the vehicle, the petitioner is alleged to have attempted to sell the same to money lenders/brokers to cause wrongful loss to the 1[st] respondent. It is also alleged that the 1[st] respondent had parted with a sum of Rs. 33 lakhs to close the loan towards the financier. 4. After filing a complaint, the learned Magistrate was moved for seizing the vehicle. The said application was allowed and the vehicle was produced before the Court. An application was filed by the 1[st] respondent seeking interim custody of the vehicle. He produced materials before the Court evidencing the fact that the residential property belonging to him was mortgaged for **Crl.MC.No. 5169 of 2017 4** amassing the amount to clear off the liabilities to the bank. The 1[st] respondent also produced the agreement entered into between the petitioner and his wife, the power of attorney executed by the petitioner, sale letter alleged to have been written by the petitioner and several other documents to substantiate his contention that the interim custody of the vehicle should be granted to him. 5. The petitioner, on the other hand, produced document to show that the registration of the vehicle stands in his name. He also asserted that the vehicle has been issued with a national permit to carry petroleum products and in view of the terms of Annexure-II, he alone is entitled to ply their vehicles on roads. He has also produced Annexure-III to substantiate that the Government of India, Ministry of Commerce and Industry, has issued licence to the petitioner to transport petroleum products and the same is valid upto the year 2021. He denied that the 1[st] respondent had to remit a sum of Rs.33 lakhs to clear off the liability. On the other hand, it was contended that when the petitioner failed to clear off the defaulted amount, he had approached the 1[st] respondent and his sister for a loan and they had paid a sum of Rs.4,50,900/– to clear off the liability. According to the learned counsel, the offence under Section 415 or Section **Crl.MC.No. 5169 of 2017** **5** 420 of the I.P.C will not be attracted as the dispute relates to advancement of the loan amount to the brother by the sister. 6. I have heard the learned counsel appearing for the petitioner, the learned counsel appearing for the 1[st] respondent and the learned Senior Public Prosecutor. 7. Before going into the controversy, it would be profitable to restate the principles that may have a direct bearing on the controversy on hand. Section 451 of the Cr.P.C deal with the custody and disposal of property during an enquiry or trial. The Explanation appended in the Section gives a very wide meaning to the word “property”, which includes property of any kind or document in respect of which an offence appears to have been committed or which appears to have been used in commission of an offence or which has been produced before the Court or which is in custody of the Court. The mode of disposal of property may include its destruction, confiscation, delivery to the person having title or possession of property, restoration to the person dispossessed or sale etc. The Court may order it to be given in custody to any party during inquiry or trial on furnishing an indemnity bond. The provision applies to any kind of property, **Crl.MC.No. 5169 of 2017 6** which is produced before the Court or is in custody of the Court during enquiry or trial in a criminal case and empowers the learned Magistrate to order custody and disposal of property pending investigation or trial using his discretion and such discretion should not be arbitrary. He is bound to provide an opportunity to the parties claiming interest in the seized property to be heard in the matter. The order of interim custody shall, however, depend on the nature of the property and the circumstances of the case. Where the Magistrate finds that the person, who is given custody of the property under this Section, is not taking proper care to lookafter it or misusing it, he may pass fresh order regarding the custody of such property. It must be stated that while passing an order under Section 451, the Court merely decides about the custody or disposal of the property involved in the case, but does not decide the question of title or rights of the parties over the property. The term "production before the Court" with reference to the property used in this Section, does not necessarily mean actual physical possession or custody by the Court. The Court may have control over the property even without its actual possession or custody. **Crl.MC.No. 5169 of 2017 7** 8. Ownership and registration of a vehicle with the appropriate authority are different matters, though in the normal course, one should lead to the other. The scheme of the Motor Vehicles Act, 1988 requires that the registration certificate should stand in the name of the owner of the vehicle. That is why the Act requires initially an application to be submitted by or on behalf of the owner and every subsequent transfer of ownership to be reported to the registering authority. This is with a view to ensure that the registration certificate reflects the ownership of the vehicle. Every owner of a vehicle has certain rights as also certain duties vis-a-vis the vehicle. The registration certificate is, therefore, intended to be a document to reflect the position regarding ownership. Thus, the registration certificate and the particulars contained therein provide an important and valuable evidence of ownership and cannot be lightly brushed aside. At the same time, it is not a document of title. There may be various situations where, at a particular time or during a particular period, the registration certificate may not reflect the real ownership of the vehicle. When there is a transfer of the vehicle, till the transfer is reported to the registering authority and till the registering authority brings about the necessary entries in the registration **Crl.MC.No. 5169 of 2017 8** certificate, certainly the registration certificate will only mention the previous owner as the owner. This is a situation where the registration certificate does not reflect the true ownership of the vehicle. Of course, once the necessary entries are made, it would reflect the true ownership of the vehicle. Thus, while it is true that ordinarily and normally the person in whose name the registration certificate stands could be accepted as the person with whom the ownership of the vehicle vests, there may be situations where the person, in whose name the certificate stands, may not be the owner at a given point of time. He may only be a previous owner. _Prima facie_ , the person, in whose name the registration certificate stands, can be accepted to be the ownership of the vehicle. But, if there is evidence or material before the court to show that the person, in whose name the certificate stands, has transferred the vehicle, naturally the court has to hold that the ownership vests with the transferee and not with the person in whose name the certificate stands. Thus, in a court of law, it is open to any party to contend that the registration certificate does not reflect the true ownership of the vehicle and satisfy the court with the relevant materials. Where, of course, he is unable to place certain materials or if the materials so placed are not sufficient, the court will **Crl.MC.No. 5169 of 2017 9** naturally act on the basis of the registration certificate. Thus, while normally and ordinarily the registration certificate must be taken as reflecting the true position regarding ownership, it is not conclusive and it is always open to the interested parties to show that it is not so. If that is not done, the registration certificate has to be acted upon. [See **E. Aliyar Kunju and Ors. v. Subair Khan and Ors.** (1984 KLT 268)]. 9. From the records, which are before this Court, it is evident that the petitioner herein is a registered owner of a Tanker Lorry. The vehicle has been issued with a national permit for goods carriage and the permit holder is none other than the petitioner herein. He has also been issued with a permit by the Deputy Controller of Explosives to transport petroleum products on land using the said vehicle. The said licence is valid till 31.03.2021. Annexure IV reveals that the petitioner herein has been issued with a heavy goods licence and admittedly, he is the person, who has been plying the vehicle, in terms of the licence issued to him. Annexure V would reveal that the petitioner committed default and he had approached this Court seeking time to clear off the overdue amount. By judgment dated 10.06.2015, this Court had permitted him to remit 50% of the overdues and to clear off the balance in 5 **Crl.MC.No. 5169 of 2017 10** equal installments. On its basis, the vehicle was released to him. To clear off the amount due to the bank, admittedly certain amounts were borrowed by the petitioner from his sister. It was thereafter that the relationship between the parties became strained. It is the case of the 1[st] respondent that the petitioner herein agreed to sell the vehicle and a sale letter was issued along with a power of attorney authorizing the 1[st] respondent to possess the vehicle. It is on the basis of the said documents that the 1[st] respondent claims that he is authorized to possess the vehicle. 10. From the complaint, it is evident that the vehicle was seized from its registered owner after the filing of the criminal complaint by the 1[st] respondent. What is also discernible from the submissions is that though the custody of the vehicle was granted to the 1[st] respondent on 29.05.2017, he has not been able to use the vehicle for any purpose whatsoever for the past 2 years. In otherwords, the vehicle has been kept idle by the 1[st] respondent. As the registration certificate is still in the name of the petitioner, there is no reasonable possibility of the 1[st] respondent being able to ply the vehicle. In the facts and circumstances, the findings of the learned Magistrate that the 1[st] respondent is the person, who is entitled to possess the vehicle on the strength of the sale letter **Crl.MC.No. 5169 of 2017 11** and power of attorney, cannot be sustained. The authenticity or genuineness of the records relied on by the 1[st] respondent has not been established till date. Moreover, while passing an order under Section 451, the Court merely decides about the custody or disposal of the property involved in the case, but does not decide the question of title or rights of the parties over the property. The parties are near relatives and from the complaint, all that is borne out is that certain amounts were advanced by the 1[st] respondent to enable the petitioner to clear off the liabilities to the Bank. If any amounts are due, the 1[st] respondent can initiate appropriate steps to realize the amount and initiation of criminal proceedings and seizure of a valuable vehicle are not the remedy. Furthermore, until the facts are established, it would result in gross injustice if the vehicle is garaged without putting it to any worthwhile use. 11. Having considered all the relevant facts, I am of the view that the Court below had erred in granting interim custody of the vehicle to the 1[st] respondent. The said order is set aside. It is held that the petitioner will be entitled to have interim custody of the vehicle pending the proceedings. In the result, this petition is allowed. The impugned order will **Crl.MC.No. 5169 of 2017 12** stand set aside. The learned Magistrate is directed to release the vehicle to the petitioner by imposing appropriate conditions. Sd/- **RAJA VIJAYARAGHAVAN V. JUDGE** _NS_ **Crl.MC.No. 5169 of 2017 13** ## **APPENDIX** ## **PETITIONER(S) ANNEXURES :** **ANNEXURE I TRUE COPY OF THE R.C.BOOK OF KL63A7034.** **ANNEXURE II TRUE COPY OF THE NATIONAL PERMIT CERTIFICATE FOR GOODS CARRIAGE ISSUED BY THE GOVERNMENT OF KERALA MOTOR VEHICLES DEPARTMENT** **ANNEXURE III TRUE COPY OF THE LICENSE TO TRANSPORT PETROLEUM PRODUCTS TO TANKER LORRY KL63A 7034 ISSUED IN THE NAME OF THE PETITIONER FROM 2.4.2013 RENEWED UPTO 31.3.2021 ISSUED BY THE GOVERNMENT OF INDIA MINISTRY OF COMMERCE AND INDUSTRY, PETROLEUM AND EXPLOSIVES SAFETY ORGANISATION (PESO).** **ANNEXURE IV TRUE COPY OF THE HEAVY DUTY DRIVING LICENSE OF THE PETITIONER. ANNEXURE V TRUE COPY OF THE ORDER IN WP(C) NO. 15386/2015(W).** **ANNEXURE VI TRUE COPY OF THE STATEMENT OF ACCOUNT OF INDUS IND BANK, TOLL JUNCTION, EDAPPALLY, COCHIN 24 IS PRODUCED HEREWITH (3 PAGES).** **ANNEXURE VI(A) TRUE COPY OF THE PAGE 2 OF ANNEXURE-VI BEING LAST ENTRY PAYMENT OF RS.4,50,900/AND THE CHEQUE NUMBER ALSO IS SHOWN.** **ANNEXURE VII TRUE COPY OF THE COMPLAINT FILED BEFORE THE JUDICIAL 1ST CLASS MAGISTRATE COURT, ANGAMALY.** **ANNEXURE VIII CERTIFIED COPY OF THE ORDER OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY IN C.M.P. NO.255/2017. RESPONDENT(S) ANNEXURES : NIL**