Shameera Beegum v. State of Kerala and Tahir Mon

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 20[TH] DAY OF OCTOBER 2021 / 28TH ASWINA, 1943** **CRL.MC NO. 2555 OF 2021** **AGAINST THE ORDER/JUDGMENT IN CMP 470/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,** **PERINTHALMANNA, MALAPPURAM** ## **PETITIONER:** ## **SHAMEERA BEEGUM** **AGED 38 YEARS** **W/O.ABDUL RASHEED, KARIKKUMPURATH HOUSE, ALIPARAMBA, THOOTHA** **P.O., PERINTHALMANNA, MALAPPURAM 679 457** **BY ADVS.** **A.RAJASIMHAN** **SHRI. AYYAPPADAS V KUM.VYKHARI.K.U** ## **RESPONDENTS:** - **1 STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** - **2 THAHIR MON** - **AGED 25 YEARS** - **S/O.MOHAMMED KUTTY, THONGATHU HOUSE, PARAL, THOOTHA P.O., PERINTHALMANNA, MALAPPURAM 679 357** **BY ADV SHARAN SHAHIER** ## **SR.PP - SRI. NOUSHAD** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.10.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.2555 of 2021 **2** ## **ORDER** Petitioner is the defacto complainant and informant in Crime No. 1018 of 2020 of Perinthalmanna police station, which was registered on 17.12.2020 alleging offence punishable under Section 379 of the IPC. The allegation is that on 16.12.2020 at 19.50 hours when her husband had parked Maruti Ertiga car bearing registration No. KL-53H-6543 in Paral Centre, it was dishonestly thieved by someone. That crime was registered on the basis of a written complaint given by the petitioner before the Sub Inspector of police. In the complaint she suspected the involvement of Thahir, son of Muhammed Kutty and his cronies for the crime. It was further stated that the car was thieved along with two mobile phones, two executive bags and valuables likes 3½ sovereigns of gold, Rs.1,80,000/-. On that basis the crime was registered and during the course of investigation the 2[nd] respondent who is the accused produced the vehicle before police on 06.03.2021 which was seized under Ext-A3 mahazar. While the car was in the custody of the Court, both the petitioner and the 2[nd] respondent moved applications under Section 451 of the Cr.P.C. seeking Crl.M.C.No.2555 of 2021 **3** interim custody of the vehicle. After hearing counsel on both sides, by Annexure-A6 order dated 30.04.2021 the learned Judicial First Class Magistrate-I, Perinthalmanna passed an order entrusting the vehicle with the 2[nd] respondent on certain conditions. Aggrieved by the same, the petitioner has moved this Court seeking to quash Annexure-A6 order and to direct the Magistrate to give interim custody of the vehicle covered by Annexure-A2 registration certificate to the petitioner. At the time of admission itself, the learned counsel for the 2[nd] respondent entered appearance and opposed any interim order and thus both parties were heard. 2. The claim of the petitioner is that she is the registered owner of the vehicle, that by playing trick on her, the 2[nd] respondent had managed to execute an agreement on 18.07.2018 as if the car was agreed to be sold for an amount of Rs. 7,00,000/-. But that sale did not materialise. On 18.08.2018 itself the vehicle was returned to her and it is in her absolute possession and enjoyment. In proof of the same she has contended that she is the registered owner of the vehicle, that the insurance has been renewed by her proving which Annexure-A3 insurance certificate Crl.M.C.No.2555 of 2021 **4** has been produced besides Annexure-A4 invoice issued by KVR Auto Cars Pvt. Ltd which shows that she had arranged some repairs for the vehicle on 10.12.2020. According to the learned counsel, after thieving the vehicle the 2[nd] respondent is monitoring the movement of the petitioner and then waited for the Criminal Miscellaneous Case to be considered and this conduct of the 2[nd] respondent indicates that he is over enthusiastic in the matter; the learned Magistrate was entrusting the vehicle to the culprit which is bad and sought to be undone by the Court invoking jurisdiction under Section 482 of the Cr.P.C. 3. The 2[nd] respondent has strongly opposed the application. He has relied on Annexure-R2(a) agreement executed between himself and the petitioner which indicates that the vehicle was agreed to be sold to him for a total consideration of Rs. 7,00,000/-, Rs. 3,00,000/- was paid at once and the balance was agreed to paid in forty five days on the petitioner clearing the bank loan outstanding against the vehicle, that over a period of time the balance amount was also paid. However, according to the 2[nd] respondent, during the last panchayath election, on personal request Crl.M.C.No.2555 of 2021 **5** of the husband of the petitioner the vehicle was handed over to him for some time for the purpose of the election which was duly returned to him and now she has caused to register a false case against him, that the petitioner is not entitled to get custody of the the vehicle. According to him even though the respondent had insisted for transferring ownership of the vehicle in his name, the petitioner was not obliging and taking advantage of that situation the crime has been registered with false allegations. 4. I heard the learned counsel for the contesting parties and also the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner reiterated the arguments in the statement of facts. According to him absolutely no materials are there to say that the vehicle was transferred to the petitioner. Annexure-R2(a) agreement stands rescinded, immediately after one month of the same the vehicle was returned to her and it is totally incredible that the vehicle was given to her for sometime for the purpose of election to the Panchayath etc. According to learned counsel, the learned Magistrate passed an interim order without appreciating the law and facts of the case. Crl.M.C.No.2555 of 2021 **6** On the other hand, the learned counsel for the 2[nd] respondent strongly defended the Annexure-A6 order and contended that the learned Magistrate had passed an order taking into account the law on the subject. The learned counsel also relied on the decision reported in **Aliyar Kunju v. Subair Khan (1984 KLT 268), CIT v. Nidish Transport Corporation (1989 2 KLT 501) and also Sanjay Singh Thakur, Bilaspur v. Sulthan Ahmad, Bilaspur (1996 KHC 2294.)** 6. The subject matter of the alleged theft is Ertiga car bearing registration No. KL-53H-6543. Admittedly its registration certificate remains in the name of the petitioner. In other words, she is shown as the registered owner of the vehicle. Allegation is that while so, on 16.12.2020 when her husband had parked it at Paral Centre, using a duplicate key which was given to the 2[nd] respondent at the time of executing an agreement on 18.07.2018 he was thieving the vehicle and now is claiming right over the same. The petitioner wanted to convince the Court that such an agreement did not take place, that transfer of ownership has not taken place; the vehicle was still in the possession and ownership of the Crl.M.C.No.2555 of 2021 **7** petitioner till it was dishonestly removed by the 2[nd] respondent on 16.12.2020. Both the parties claimed interim custody of the vehicle and approached the Court and the learned Magistrate by the impugned order granted interim custody of the vehicle to the 2[nd] respondent. It being a movable motor vehicle, interim custody is to be given, normally, to the registered owner. But there is no such irreversible proposition. It being an ordinary chattel the Court may also consider who is the best person to make use of it. It can be given to a person though he is not the registered owner if other circumstances establish ownership. Basing on the admitted fact that the petitioner continues to be the registered owner of the vehicle, she has claimed right to be in interim custody of the vehicle. But the 2[nd] respondent on the strength of Annexure-R2(a) agreement dated 18.07.2018 wanted to bring to the notice of the Court that the vehicle had passed to him immediately on tendering the advance consideration of Rs. 3,00,000/-. Later the balance amount of Rs. 4,00,000/- was also paid, merely for the reason that the ownership remains in the name of the petitioner, she has no right over the same. Crl.M.C.No.2555 of 2021 **8** 7. After considering rival contentions and materials, I do not find valid reasons to interfere with the impugned order and to hand over the vehicle to the petitioner. After the registration of the crime the 2[nd] respondent had moved this Court seeking anticipatory bail which was granted by Annexure-R2(b) order dated 23[rd] February, 2021. Similarly, Annexure-A5 seizure mahazar produced by the petitioner indicates that the vehicle was surrendered by the 2[nd] respondent before police following which it was seized by the police from his possession only. He had also produced a duplicate key, original registration certificate and also insurance certificate with given number which was valid for the period from 19.10.2020 to 18.10.2021. Before Court, in support of the claim petition he also produced the original agreement and that was also one of the reasons that prompted the learned Magistrate to pass an order in his favour. In other words, the production of the vehicle by the 2[nd] respondent along with an agreement for sale is valid reason to think that the 2[nd] respondent was in rightful possession and enjoyment of the vehicle. 8. Annexure-R2(a) agreement indicates that it was executed Crl.M.C.No.2555 of 2021 **9** on 18.07.2018. The said agreement was produced before Court along with the duplicate key. This document indicates that there was an agreement for sale of the vehicle and the vehicle was handed over to the 2[nd] respondent after paying a sum of Rs.3,00,000/- out of the total consideration of Rs. 7,00,000/; the balance amount of Rs. 4,00,000/- was agreed to be given within 45 days, on the petitioner closing the bank loan, on getting clearance from the bank within 45 days. Even though the 2[nd] respondent did not produce any document to say that the balance amount was tendered, it is claimed that he had paid that amount over a period of time. Whatever it may be, the production of original agreement the taking possession of the vehicle from the custody of the 2[nd] respondent etc are circumstances giving an edge to the 2[nd] respondent. 9. It is true that the petitioner had produced certain other documents like insurance certificate, document proving repairs made to the car etc. Annexure-A3 requires special mention. It is shown that the insurance has been renewed in the name of the petitioner herself for a period of one year from 12.03.2021 to Crl.M.C.No.2555 of 2021 **10** 11.03.2022. Here, as rightly pointed out, previous document was not produced before the insurance authorities at the time of getting Annexure-A3 policy. At the same time Annexure-A5 seizure mahazar indicates that an insurance policy was seized from the car when it was produced by the 2[nd] respondent which indicates that the period of insurance was from 19.10.2020 till 18.10.2021. The period of insurance of the vehicle in Annexure-A5 and A3 cannot go together. This along with non production of the previous policy certificate also is something casting aspersion on the claim of he petitioner. 10. As indicated, even though the registration certificate is important for a vehicle, that alone will not give any advantage to the registered owner. That would only indicate that the petitioner is the registered owner of the vehicle. Registered owner need not be the defacto owner of the vehicle. In the decision reported in **Aliyar Kunju, quoted supra,** the following observations made by this Court is very material. “17. “On analysing the provisions of the Act, it can be seen that it is not the registration certificate of a motor vehicle Crl.M.C.No.2555 of 2021 **11** which confers ownership on the owner. On the other hand, the registration certificate follows the ownership and not vice versa. Initially, the application for registration is to be made by or on behalf of the owner of a vehicle. Therefore, it is only a person who already has ownership, who can move for registration of the vehicle in his name. In the case of a transfer also, the transfer of ownership precedes the transfer of the certificate. S.31 contemplates a situation where the transferor and the transferee make reports to the registering authority who thereupon is to make necessary entries in the registration certificate and the records concerned, thus, transfer of registration certificate only succeeds the transfer of ownership of the vehicle. The transfer of ownership of a vehicle is a matter governed not by the provisions of the Act but by the provisions of the Sale of Goods Act. Motor vehicle being a movable, transfer of ownership takes effect from the date of the sale and not from any other date. As between the transferor and the transferee, the sale is complete before the transfer of the registration certificate. Failure to report to the registering authority may involve penalty prescribed by S.31 of the Act or by S.112 of the Act. The fact that failure to report involves such consequences does not prevent title passing from the Crl.M.C.No.2555 of 2021 **12** transferor to the transferee. Immediately the sale is effected with the intention to pass title, the registered owner loses his right. It may, perhaps, be that till the endorsement to that effect is made in the registration certificate, so far as the registering authority is concerned, the ostensible owner is the transferor but the beneficial interest would be with the transferee. The registration certificate is not a document of title though it is certainly evidence of ownership.--” That means, mere fact that the petitioner remains the registered owner of the vehicle she cannot claim that she is the owner of the same. As far as motor vehicle is concerned both are different concepts. 11. I have no doubt that there are incongruities in the arguments of both parties. It is not explained as to how the agreement was rescinded, as claimed by the petitioner. Similarly, there is no satisfactory material to say that the balance amount was paid by the 2[nd] respondent 'over a period of time'. If that was correct, it is not known why the registration was not transferred. There are many aspects not explained before Court. Here, the question that troubles the Court is as to who is the better person Crl.M.C.No.2555 of 2021 **13** entitled to keep interim custody of the vehicle. In my assessment, documents and the circumstances highlighted by the learned counsel for the 2[nd] respondent give him an upper hand and there are reasons to think that he is the better person to keep interim custody of the vehicle. I do not find valid reasons to interfere with the order under challenge and the Criminal Miscellaneous Case is only to be dismissed. Dismissed. Sd/- **K. HARIPAL JUDGE** RMV/16/10/2021 Crl.M.C.No.2555 of 2021 **14** ## **APPENDIX OF CRL.MC 2555/2021** ## **PETITIONER ANNEXURE** |**ANNEXURE A1**|**TRUE COPY OF FIR NO.1018 OF 2020 OF PERINTHALMANNA**| |---|---| ||**POLICE STATION.**| |**ANNEXURE A2**|**TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED**| ||**13.5.2015 ISSUED BY ADDL. RA, PERINTHALMANNA.**| |**ANNEXURE A3**|**TRUE COPY OF THE INSURANCE POLICE DATED 12.3.2021 ISSUED**| ||**BY THE NATIONAL INSURANCE COMPANY LTD.**| |**ANNEXURE A4**|**TRUE COPY OF THE INVOICE DATED 10.12.2020 ISSUED BY KVR**| ||**AUTOCARS PVT.**| |**ANNEXURE A5**|**TRUE COPY OF THE SEIZURE MAHASER DATED 6.3.2021**| ||**PREPARED BY SI, PERINTHALMANNA POLICE STATION.**| |**ANNEXURE A6**|**CERTIFIED COPY OF THE ORDER OF JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT-I, PERINTHALMANNA DATED 30.4.2021 IN**| ||**CMP NO.470/2021.**|