Allowed

Antony Kurien v. T.T.Joseph

Kerala HC24 Sept 2008Crl.MC/2450/2008

Case brief

AI extract

What is this about?

In a criminal miscellaneous case, Justice R. Basant set aside an order releasing a disputed vehicle to its registered owner. The Court directed the petitioner, whose criminal case is pending, to retain possession of the vehicle until trial concludes, pending a final decision by the Magistrate under Sec. 452 Cr.P.C.

What did the court decide?

The impugned order releasing the vehicle was set aside. The petitioner was permitted to retain possession of the vehicle pending trial. The learned Magistrate was directed to dispose of the cases with

Antony Kurien Vs T.T.Joseph — Contract and Commercial Disputes | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE R.BASANT

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WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930

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Crl.MC.No. 2450 of 2008()

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------------------------AGAINST THE ORDER DATED / / IN CMP 1105/2008 IN CC.476/2007 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI

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PETITIONER(S):

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ANTONY KURIEN,S/O. KURIEN VAZHAPPARAMBIL VEEDU, CHAMPAKULAM MURI NEDUMUDI VILLAGE

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BY ADV. SRI.D.AJITHKUMAR

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RESPONDENT(S):

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T.T. JOSEPH, S/O.THOMAS, THYCHERI VEEDU THOTTUVATHALA MURI, NEDUMUDI VILLAGE ALAPPUZHA.

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

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ADV. SRI.S.SANAL KUMAR FOR R1

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SMT.BHAVANA V. FOR R1 PUBLIC PROSECUTOR SRI. GIKKU JACOB.

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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R. BASANT, J.

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Crl.M.C. No.2450 of 2008

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Dated this the 24^th day of September, 2008

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ORDER

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The petitioner has come to this Court to assail an order dated 16/6/08 directing the release of a vehicle – Ambassador car bearing registration No.KL-4/T.217 to the 1^st respondent herein.

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The contention of the petitioner can be enumerated as follows: For an amount of Rs.1.7 lakhs the said vehicle of which the 1^st respondent is admittedly the R.C. owner was agreed to be sold to the petitioner herein as per an agreement dated 19/5/07. The possession of the vehicle was also handed over. The Registration Certificate was also allegedly handed over. There was some dispute about the amounts payable under a hire purchase agreement and therefore the petitioner had allegedly handed over the Registration Certificate of the

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Crl.M.C. No.2450 of 2008 -: 2 :-

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vehicle to the 1^st respondent. The 1^st respondent did not return the Registration Certificate and, in these circumstances, a private complaint was filed on 20/6/07 by the petitioner alleging the commission of the offence punishable under Sec.420 IPC. Crime No.53/07 was registered on the basis of that complaint which was referred to the police under Sec.156(3) Cr.P.C. Investigation was conducted. A negative final report was filed. Objections were raised against the negative final report and cognizance was taken on the basis of the complaint raised by the petitioner later and the case is pending as C.C.No.404/08. Cognizance has been taken against the 1^st respondent.

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The petitioner, in these circumstances, contended that he is the person entitled to possession of the vehicle as per the agreement dated 19/5/07.

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The 1^st respondent, in turn, contended that he was the R.C. owner in possession of the vehicle. He denied any agreement; but he conceded that the petitioner had come to the premises and had forcibly taken away the Ambassador car after compelling the petitioner to execute an agreement dated 27/5/07 which he did under coercion and not willingly. In respect of that incident, the 1^st respondent filed a private complaint on 10/7/07 i.e., about the grave incident which took place on 27/5/07. That complaint was also referred to the police and Crime No.65/07,

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inter alia, under Sec.383 IPC was registered by the police. In the course of investigation of Crime No.65/07, the vehicle in question was seized by the police as produced by the petitioner herein. Investigation was completed in Crime No.65/07 and the police have now filed a final report/charge sheet alleging the commission of offences punishable, inter alia, under Sec.383 IPC against the petitioner herein. That case is pending before the learned Magistrate as C.C.No.476/07.

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Both C.C.Nos.476/07 and 404/08 are pending before the learned Magistrate. Both cases are ripe for trial, it is submitted.

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In the meantime, the dispute regarding interim possession of the vehicle was rife between the parties. Both filed applications for release of the vehicle under Sec.451 Cr.P.C. in Crime No.65/07. The learned Magistrate, after considering the material before him, directed the release of the vehicle to the petitioner herein as per Annexure-B order dated 14/9/08. That order was challenged by the 1^st respondent before this Court and another Bench of this Court as per the order dated 24/1/08 in Crl.M.C.214/08 (Annexure-C), turned down the said challenge. At that stage, the final report in Crime No.65/07 had not been filed. It was observed that if Crime No.65/07 results in a charge sheet, the 1^st respondent herein will be entitled to move the

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Crl.M.C. No.2450 of 2008 -: 4 :-

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learned Magistrate again for release of the vehicle in his favour.

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It was, in these circumstances, that the 1^st respondent went before the learned Magistrate for release of the vehicle and the impugned order was passed by the learned Magistrate. The learned Magistrate directed the release of the vehicle to the 1^st respondent herein subject to appropriate conditions. The petitioner was directed to surrender the vehicle.

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The learned counsel for the petitioner submits that the learned Magistrate has not applied his mind diligently to the controversy on hand. Merely because the final report in favour of the 1^st respondent was filed by the police in Crime No.65/07 and merely because there was an innocuous delay in the petitioner tendering sworn statement in the protest complaint filed after the refer report was received in Crime No.53/07, the learned Magistrate has directed the release of the vehicle. The learned Magistrate has not considered the improbability of the version of the 1^st respondent about the circumstances under which the vehicle admittedly came into possession of the petitioner. The learned Magistrate has not in the impugned order considered the convincing improbability in the case of the 1^st respondent that even though he was compelled to sign the document and the vehicle was forcibly removed on 27/5/07, he chose to file the complaint only on 10/7/07. The petitioner

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further submits that the learned Magistrate has totally ignored the probability of the signature of the witness – a relative of the 1^st respondent, appearing in the sale deed dated 19/5/07 for which no explanation was offered in the belated complaint filed on 10/7/07.

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I have considered all the relevant inputs. At this stage, I shall carefully avoid any detailed discussions on merits which may even indirectly have a bearing on the question when the learned Magistrate ultimately taken up the rival assertions in the two cases for consideration. Suffice it to say that I am certainly convinced that the direction to release the vehicle in favour of the 1^st respondent, after taking it back from the petitioner who is in possession of the same as per the order dated 14/9/07, is totally unjustified. Subject to appropriate directions to be issued for expeditious disposal of the two cases, I am satisfied that the petitioner can be permitted to retain the possession of the vehicle until the trial is completed and final orders are passed under Sec.452 Cr.P.C.

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In the result:

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(a) This Crl.M.C. is allowed.

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(b) The impugned order is set aside.

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dated 14/9/07.

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(d) The learned Magistrate is directed to expeditiously complete the trial in C.C.Nos.476/07 and 404/08. After giving the parties an opportunity to adduce all evidence, appropriate decision regarding disposal of the property under Sec.452 Cr.P.C. shall be taken by the learned Magistrate while disposing of those cases.

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(e) The learned counsel for the 1^st respondent prays that a time limit may be fixed for the disposal of the cases. I need only mention that the cases must be disposed of as expeditiously as possible – at any rate, within a period of four months from this date.

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Issue a copy of this order to the learned counsel for the 1^st respondent who shall forthwith produce the same before the learned Magistrate.

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Sd/(R. BASANT, JUDGE)

Nan/

//true copy//

P.S. to Judge

Crl.M.C. No.2450 of 2008 -: 7 :-

Antony Kurien v. T.T.Joseph

Case brief

What is this about?

What did the court decide?

Antony Kurien v. T.T.Joseph

Case brief

What is this about?

What did the court decide?

What the court decided

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