High Court of KeralaSingle Judge2022-04-19Criminal M.C. allowed; Annexure A6 set aside; i...

Thridev Balakrishnan v. State of Kerala, Rajeev Joseph and Magma FinCorp Ltd.

Case / Petition Number:CRL.M.C. No. 2241 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Mohammed Nias C.P.
Judgment Date: 2022-04-19
Court Decision / Holding: Annexure A6 order set aside. The court holds that the petitioner, as registered owner and insurer, is better entitled to interim custody and grants such custody subject to conditions: (i) bond for Rs.7 lakh with two solvent sureties; (ii) submission and verification of RC and related documents; (iii) production of the vehicle before the court or competent authority; (iv) prohibition on alteration, damage, or disposal pending disposal; (v) requirement of vehicle photographs before release. Criminal M.C. is allowed as above. The findings are for the limited purpose of interim custody and parties’ rights will be independently considered in due course.
Final Disposition: Criminal M.C. allowed; Annexure A6 set aside; interim custody of the vehicle KL-33-H-4591 granted to the petitioner subject to specified conditions; parties to be separately considered on their respective rights for final disposal.

Parties to the Case

Appellants / Petitioners

Thridev Balakrishnan

Respondents

State of Kerala represented by the Station House Officer Gandhi Nagar Police Station (Public Prosecutor, High Court of Kerala)
Rajeev Joseph
Magma Fin Corp. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Luke J Chirayil

Counsels for Respondents

• Philip T. Varghese Achu
• Subha Abraham
• V. Litha
• K. Monisha
• Shruthi Sara Jacob

Case Synopsis & Summary

This is a Criminal Misc. Case (Crl.M.C. No.2241 of 2022) disposed by the Kerala High Court, Ettumanoor Bench, on 19 April 2022. The defacto complainant, Thridev Balakrishnan, claims ownership of vehicle KL-33-H-4591 (Annexure A7) with insurance (Annexure A8) in his name. He alleges purchase financed by Magma FinCorp Ltd. and later a sale to the second respondent Rajeev Joseph under Annexure A2, with a pact that remaining EMIs would be paid by him; the second respondent allegedly defaulted and pledged the vehicle to another. The financier’s intervention led to a dispute over interim custody under Section 451 Cr.P.C, with three petitions (A4–A6) culminating in a common order granting interim custody to the second respondent. The petitioner challenged this order, arguing it contravened law and the facts: the vehicle’s registration and insurance stand in the petitioner’s name, the financier’s liability and the risk of further pledging if custody is given to the second respondent, and that the proper procedure under the Motor Vehicles Act has not been complied with. The court, after hearing both sides, held that the impugned order was unsustainable and that the financier was not bound by the alleged arrangement between petitioner and second respondent. It set aside Annexure A6 and granted interim custody to the petitioner, subject to conditions (bond, RC submission, production when required, non-alienation, and photographic records). The judgment relies on citations to referenced precedents in support of the petitioner’s contentions.

Provisions of Law Cited

Section 451 Cr.P.C.Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

Learned counsel for the petitioner contends that the impugned order granting interim custody of vehicle KL-33-H-4591 to the second respondent is legally and factually unsustainable. The petitioner's ownership and insurable interest are evidenced by RC (Annexure A7) and the insurance policy (Annexure A8), and the vehicle was acquired with funds from Magma FinCorp Ltd. The second respondent defaulted on EMI payments and pledged the vehicle again, undermining the financier's security. The financier is not bound by any purported agreement between petitioner and second respondent for interim custody, and the transaction violates the Motor Vehicles Act, 1988. CMP No. 1544/2021 recommended non-release to the accused due to risk of further pledging and destruction of evidence. The petitioner argues that interim custody should be granted only to the registered owner and insurer, with proper safeguards (bond, production of RC, non-alienation, photos). Citing Ashok Kumar v. State of Bihar, SREI Equipment Finance Ltd. v. Ramjan Ali, and Sabeena v. Kaharudeen in support of his contentions, the petitioner seeks setting aside the impugned order and appropriate interim relief.

Contentions of Respondents

The respondents contend that interim custody of the vehicle to the second respondent was warranted to protect the asset from dissipation and to safeguard the financier's security interest. The financier argues that the petitioner’s alleged agreement with the second respondent is not binding on the creditor, and the vehicle could be pledged again if released to the second respondent. The court below’s order aimed to preserve the asset and prevent alteration or alienation during ongoing proceedings. The financier also points to the need to follow proper procedures under the Motor Vehicles Act to prevent illegal transfers. While the petitioner’s ownership and insurance are acknowledged, the respondents maintain that the existing security arrangement and the risk of loss require continued custody or oversight by a court, pending final disposal.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ashok Kumar v. State of Bihar and others	2001 KHC 4005	Mentioned Only	Cited by petitioner in support of contentions; not stated as followed, distinguished, or overruled in the judgment.
SREI Equipment Finance Ltd. v. Ramjan Ali and Others	2021 KHC 6001	Mentioned Only	Cited in support of contentions; no explicit treatment by the court beyond citation.
Sabeena and Another v. Kaharudeen and Another	2018(1) KHC 357	Mentioned Only	Cited in support of contentions; no explicit analysis or treatment stated.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **TUESDAY, THE 19[TH] DAY OF APRIL 2022 / 29TH CHAITHRA, 1944 CRL.MC NO. 2241 OF 2022** **IN CC 265/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,** ## **ETTUMANUR** ## **PETITIONER/S/DEFACTO COMPLAINANT:** THRIDEV BALAKRISHNAN AGED 27 YEARS SON OF SRI. BALAKRISHNAN, PAZHANJALPARAMBIL HOUSE, THONNAKUZHY, ARPPOOKKARA P.O., KOTTAYAM DISTRICT, KERALA, PIN - 686008 BY ADV LUKE J CHIRAYIL ## **RESPONDENTS/ACCUSED PERSON:** 1 STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER GANDHI NAGAR POLICE STATION (REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA) PIN - 682031 2 RAJEEV JOSEPH AGED 50 YEARS SON OF SRI. JOSEPH THOMAS, CHECHODATH HOUSE, CHEERAMCHIRA P.O., NEAR KURISUMMOODU PUMB HOUSE, VEROOR KARA, CHETHIPUZHA VILLAGE, KOTTAYAM DISTRICT , PIN - 686106 3 MAGMA FIN CORP. LTD. HAVING REGISTERED OFFICE, MAGMA HOUSE, 24, PARK STREET, KOLKATA - 16, BRANCH OFFICE, VETTIL ESTATE, KANJIKUZHY, KOTTAYAM-4, REPRESENTED BY ITS DEPUTY MANAGER AND POWER OF ATTORNEY HOLDER - SRI. SUMESH R., SON OF SRI. RAJAN, AGED 35 YEARS, VIGNESWARA BHAVAN, THIRUNAKKARA, KOTTAYAM P.O., Crl.M.C.No.2241 of 2022 2 KOTTAYAM VILLAGE, KOTTAYAM TALUK , PIN - 686001 BY ADVS. PHILIP T.VARGHESE ACHU SUBHA ABRAHAM(K/001758/1999) V.T.LITHA(K/278/2006) K.R.MONISHA(K/915/2013) SHRUTHI SARA JACOB(K/000577/2017) ## **OTHER PRESENT:** SRI.M.P.PRASANTH ,G P THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.04.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.2241 of 2022 3 ## **MOHAMMED NIAS. C.P.,J** - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.2241 of 2022 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of April, 2022 ## **ORDER** The petitioner, the defacto complainant, claims to be the owner of vehicle bearing registration No.KL33 H 4591 on the strength of Annexure A7 registration certificate and with Annexure A8 insurance policy in his name. It is further stated that the said vehicle was purchased by the petitioner by availing loan from the third respondent and that the petitioner sold the said vehicle to the 2[nd] respondent under Annexure A2 agreement, wherein it was agreed between the parties that the remaining EMI payments to the third respondent will be paid by the 2[nd] respondent . The 2[nd] respondent defaulted not only the said condition but had further pledged the vehicle with another person. As the third respondent began to initiate measures to recover the amounts, the petitioner preferred Annexure A1 complaint before the first respondent, who took the possession of the vehicle from a person named Sunny Thomas with whom the second respondent had pledged the vehicle. 2. The petitioner filed an application under Section 451 Cr.P.C, Annexure A4, while the second respondent filed Crl.M.C.No.2241 of 2022 4 Annexure A5 application under Section 451 Cr.P.C. The third respondent also made a claim for the vehicle. By Annexure A6 common order in the three application the court below granted interim custody of the vehicle to the second respondent by dismissing the other petitions. The petitioner challenges the same and points out that the financier is claiming the defaulted instalments from him. 3. Notice in this Crl.M.C. by special messenger was ordered to respondents 2 and 3 and they were served. Sri.Phlip T. Varghese appears for the third respondent, but there is no appearance for the second respondent. 4. Learned counsel for the petitioner submits that Annexure A6 order is against the facts and circumstances of the case besides being totally illegal. He also cites the decisions of the Supreme Court in **Ashok Kumar v. State of Bihar and others** (2001 KHC 4005) and **SREI Equipment Finance Ltd.** **v. Ramjan Ali and Others** (2021 KHC 6001) and the decision of this Court in **Sabeena and Another v. Kaharudeen and Another** [2018(1) KHC 357] in support of the contentions. 5. Learned counsel argues that at the stage of considering the interim custody of the vehicle the registration certificate and the other documents pertaining to the vehicle ought to have been considered and on the short reason Annexure A6 Crl.M.C.No.2241 of 2022 5 order has to be set aside. He also argues that the accused has further pledged after the agreement with the petitioner and still allowing the interim custody to such an accused was illegal. 6. Having heard the learned counsel on either side, I am of the firm opinion that the impugned order cannot be sustained for more reasons than one. In the instant case the financier had objected to the grant of interim custody to the second respondent contending that the transaction between the petitioner and the second respondent are not binding on him, the creditor. It is also to be noted that the demand by the financier for the defaulted instalments has been made against the petitioner on the footing that the liability is that of the petitioner. The registration certificate and insurance certificate also stands in the name of the petitioner. The investigating officer also had filed a report in CMP No.1544 of 2021 stating that the vehicle shall not be released to the accused / 2[nd] respondent as there is likelihood of him pledging or alienating the vehicle again which might lead to destruction of evidence. It is also seen that the second respondent had further pledged the vehicle to one Sunny Thomas from whom the vehicle was seized. In as much as the financier is not bound by the agreement allegedly entered into between the petitioner and the second respondent, his contention that interim custody Crl.M.C.No.2241 of 2022 6 cannot be given to the second respondent herein ought to have been upheld. 7. There cannot be any basis for treating the second accused as having has a superior title to the vehicle for the reasons mentioned above. The transaction between the petitioner and the second respondent is not binding on the financier and no transfer could have been made going by the provisions of the Motor Vehicles Act,1988 (for short 'the Act') without steps taken with the junction of the financier under the said Act. The court below having found that there was breach of the provisions of the Act even accepting the case of the petitioner, the accused in no way could have been granted the interim custody. The claim of the financier in the circumstances will lie against the petitioner. The dispute's, if any, between the petitioner and the second respondent has to be sorted out independently. For the reasons noted above in the circumstances, the person better entitled to the interim custody was the petitioner being the registered owner and the insurer of the vehicle. 8. In such circumstances, Annexure A6 order of the court below being against the facts and the law, requires interference and is accordingly set aside. The petitioner will be entitled to interim custody of the vehicle subject to the following Crl.M.C.No.2241 of 2022 7 conditions: ”i. The petitioner herein shall execute a bond for Rs.7 lakh with two solvent sureties each for the like sum to the satisfaction of the court below - ii. The petitioner shall also submit the registration certificate and other particulars relating the vehicle to the court below for verification and if satisfied, the petitioner may be allowed to substitute the same with the certified copies, after which the documents can be returned to him. iii. The accused shall produce the vehicle before the court below or any other court or competent authority as and when required by law iv. The accused shall not alter, damage or alienate or hand over the possession of the vehicle by any means to any one pending disposal of the case. v. The accused shall produce the photographs of the vehicle before its release. It goes without saying that the findings in this Crl.M.C is for the limited purpose of considering the question of interim custody of the vehicle and for no other. The claims of the parties shall be independently considered by the appropriate Crl.M.C.No.2241 of 2022 8 forum when it is raised before them. Criminal M C is allowed as above. Sd/- **MOHAMMED NIAS. C.P.,JUDGE** dlK 20.04.2022 Crl.M.C.No.2241 of 2022 9 ## **APPENDIX OF CRL.MC 2241/2022** - PETITIONER'S ANNEXURES Annexure A1 TRUE COPY OF THE FIR DATED 08.07.2021 HAVING FIR NUMBER: 1452 OF 2021 ON THE FILES OF THE GANDHI NAGAR POLICE STATION, KOTTAYAM DISTRICT - Annexure A2 TRUE COPY OF THE AGREEMENT DATED 30.09.2019 ENTERED BETWEEN THE PARTIES - Annexure A3 TRUE COPY OF THE CHEQUE BEARING NUMBER: 019046 OF THE ACCOUNT NO. 0452053000010429 OF SOUTH INDIAN BANK, CHETHIPUZHA BRANCH - Annexure A4 TRUE COPY OF THE PETITION NUMBERED AS C.M.P. NO. 1512 OF 2021 IN C.C. NO. 265 OF 2021, ON THE FILES OF THE HONâ€™BLE JUDICIAL FIRST CLASS MAGISTRATE COURT â€“ I, ETTUMANOOR - Annexure A5 TRUE COPY OF THE PETITION NUMBERED AS C.M.P. NO. 1544 OF 2021 IN CRIME NO. 1452 OF 2021 ON THE FILES OF THE HONâ€™BLE JUDICIAL FIRST CLASS MAGISTRATE â€“I, ETTUMANOOR - Annexure A6 TRUE COPY OF THE COMMON ORDER DATED 20.09.2021 IN C.M.P. NOS. 1512/2021, 1968/2021 & 1544/2021 IN C.C. NO. 265 OF 2021, ON THE FILES OF THE HONâ€™BLE JUDICIAL FIRST CLASS MAGISTRATE-I, ETTUMANOOR - Annexure A7 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE BEARING NUMBER: KL-33-H-4591 - Annexure A8 TRUE COPY OF THE INSURANCE POLICY HAVING NUMBER 76300031200200061373 ISSUED BY THE NEW INDIA ASSURANCE CO. LTD. IN FAVOR OF TRIDEV B. - Annexure A9 TRUE COPY OF THE NOTICE DATED 05.05.2021 HAVING NUMBER PG/0156/F/18/000367 MFL/21-22/346468 Crl.M.C.No.2241 of 2022 10 ||ISSUED AGAINST TRIDEV B. BY THE MAGMA| |---|---| ||FINCORP LIMITED| |Annexure A10|TRUE COPY OF THE NOTICE DATED| ||17.08.2021 ISSUED TO MR. TRIDEV B. BY| ||MANAGER, POONAWALA FINCORP LIMITED| |Annexure A11|TRUE COPY OF THE SUMMONS DATED| ||17.09.2021, ISSUED BY METROPOLITAN| ||MAGISTRATE 3RD COURT, CALCUTTA AGAINST| ||TRIDEV B. IN REGARD TO CASE NO.| ||CS/0054705/21| |Annexure A12|TRUE COPY OF THE PETITION IN COMPLAINT| ||CASE NO. CS / 54705 / 2021 IN THE COURT| ||OF LEARNED CHIEF METROPOLITAN| ||MAGISTRATE AT CALCUTTA| |Annexure A13|TRUE COPY OF THE ORDER DATED 08.02.2022| ||IN CRL. R.P. NO. 14 OF 2021 ON THE| ||FILES OF THE HONâ€™BLE SESSIONS COURT,| ||KOTTAYAM|