Allowed

N.Malathi v. State of Kerala

Kerala HC23 Feb 2012Crl.MC/116/2012

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition under Section 482 CrPC, the High Court allowed the petition and directed the release of seized lorries to the registered owners on specific conditions to prevent irreparable loss while safeguarding the investigation, imposing a bond, requiring document production, and conditions against alienation.

What did the court decide?

Directing the release of seized lorries to the petitioners on interim custody subject to conditions including execution of a bond with sureties, production of documents, and a prohibition on alienatio

N.Malathi Vs State of Kerala — Property and Title | Kerala HC (2012)

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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. P.S.GOPINATHAN

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THURSDAY, THE 23RD DAY OF FEBRUARY 2012/4TH PHALGUNA 1933

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Crl.MC.No. 116 of 2012 ()

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------------------------( CMP. Nos. 6823/2011 & 6824/2011 of J.M.F.C.-I,PALAKKAD)

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(CRIME NO. 575/2011 OF WALAYAR POLICE STATION)

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PETITIONERS:

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N.MALATHI

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W/O. THAMISELVAN, 7/263, GEJAKOMBAI MAIN ROAD POTTYREDDYPATTY POST, NAMAKKAL, TAMILNADU.

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SAROJA.G W/O. GANESAN, 3/132-3 KAJAMOMBAI POTTYREDDYPATTY POST, NAMAKKAL, TAMIL NADU.

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BY ADVS.SRI.V.SIVASWAMY

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SRI.P.P.RAMACHANDRAN

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SMT.RUKHIYABI MOHD KUNHI

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COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE WALAYAR POLICE STATION, BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

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PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN.

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION

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ON 23-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.S. GOPINATHAN, J.

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= = = = = = = = = = = CRL. M.C. 116 OF 2012

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= = = = = = = = = = = = =

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DATED THIS, THE 23^rd DAY OF FEBRUARY, 2012.

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O R D E R

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In this petition under Section 482 of the Code of Criminal Procedure, petitioners assail Annexure C common order in Crl. M.P. Nos. 6823/2011 and 6824 of 2011 on the file of the Judicial Magistrate of the First Class-1, Palakkad in Crime No. 575 of 2011 of Walayar Police Station.

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Having heard either side and perusing the case diary produced, I find that the case was registered against the owners and drivers of four lorries, whose names are not mentioned, alleging offences under Sections 468, 471 and 420 r/w Section 34 of the Indian Penal Code. The brief allegation is that the owners and drivers who are arrayed as accused, forged documents and using those forged documents as genuine, had been transporting sand through Check Post at Walayar on 7.12.2011. The case was registered on the basis of a report submitted by the Motor Vehicle Inspector at the Check Post. Consequently, lorry bearing Reg. No. TN 32 C 1112, TN 41 AC 2893, TN 28 AJ 0435 and TN 38 AJ 1717 were seized. It is reported that the vehicles are lying at the Walayar Check Post with loads of sand and subject to sun and rain. The petitioners, claiming to be

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Crl. M.C. 116/2012 2

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the owners of lorry bearing Reg. No. TN 28 AJ 0435 and TN 32 C 1112 filed the above mentioned petitions before the Judicial Magistrate of the First Class-I, Palakkad, with a plea that they, who are registered owners, rented the lorries to one Gokul Kannan, son of Mohan Raj, under a written lease deed, copy of which is produced as Annexure B typewritten in Tamil with English translation. The learned magistrate declined to release the lorries by stating that the investigation is in midway and that the releasing of the lorries at this stage would be a luxury to the accused persons who are reportedly absconding. It is that order now under challenge.

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The learned Government Pleader would submit that Annexure B is

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bogus document executed in favour of an unknown person and that the owner and driver of the lorries are absconding and therefore, the investigation could not be completed and the document was created as a shield to escape from the prosecution. According to the learned Government Pleader, the vehicles shall not be released before apprehending the drivers and owners/lessees of the vehicles. Though the case was registered against the owners and drivers of the above mentioned lorries without naming anybody and the petitioners have come forward as registered owners, till now they are not named as accused. Going by the case diary produced, I find that the investigating agency had nothing done

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Crl. M.C. 116/2012 3

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to find out the lorry drivers, owners / lessees. The learned Government Pleader would submit that since they have absconded to the neighbouring State, the investigating agency is taking steps to go over there and to apprehend the drivers, owners/lessees. I don't think that for the reason that the owners and drivers are absconding, lorries are to left to sun and rain. If the prosecution has a case that the owners mentioned in the First Information Report would include the petitioners, since they had come forward with the petitions before the trial court and now before this Court, it cannot be said that they are absconding. Irrespective of the release of the vehicle, the prosecution is at liberty to arrest them. It is to be noted that the vehicles are kept open subject to sun and rain with loads of sand for more than 2 ½ months and any more retention of the vehicles in the present stage would cause irreparable loss and damage to the petitioners who are the owners of the lorries. Dealing the ofenders in accordance with the law cannot be clubbed with the preservation of the property. Having due regard to the entire facts and circumstances, I find that it would be appropriate to release the vehicle to the petitioners on conditions.

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In the result, this petition is allowed. While modifying Annexure C order, there would be a direction to the respondent to release the lorries to the respective petitioners, if they are the owners, on the following

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Crl. M.C. 116/2012

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conditions:

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Petitioners shall produce the Registration Certificates and permits of the lorries before the trial court in support of their title over the vehicle. The original of the agreement shall also be produced before the trial court for verification.

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Each of the petitioners shall execute bond for Rupees twenty five lakhs with two solvent sureties each for the like amount to the satisfaction of the trial court. The trial court shall satisfy the identity of the sureties and their capacity to deposit the bond amount in the event of forfeiture. In the event it is found that the lease deed is a bogus document executed in favour of a non existing person, the prosecution is at liberty to register a case and to initiate appropriate action against the petitioners. The Registration Certificate and the permit shall be returned to the petitioners after keeping the true attested copies of those documents. The release of the vehicles to the petitioners is only as an interim custody to be produced before the trial court as and when required. The identity of the petitioners and sureties shall be ascertained with reference to the voters identity cards/ PAN cards. The petitioners and sureties shall also produce the certificate of residence from the local bodies certifying that the petitioners and sureties are actually residing in the given address. They should also furnish their telephone/mobile phone numbers.

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The vehicles shall no way be alienated or transferred or let out to any person without permission of this court.

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The petitioners shall also produce certificates from the Sales Tax and Motor Vehicle Department certifying that no dues are charged upon the vehicles involved in this case. The Sales Tax Department or the Motor Vehicle Department are at liberty to initiate any action in case any of the statutory provisions are violated by the

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Crl. M.C. 116/2012

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petitioners. Release of the vehicles on interim custody of the petitioners shall be reported to the Motor Vehicle Department and prohibiting them not to effect any transfer or endorsing any hypothication agreement until further orders or till disposal of the case.

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In the event the petitioners are involved in the offences alleged or in fabricating any document including the lease deed, the prosecution is at liberty to apprehend them.

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The sand loads in the lorries shall be unloaded at a place to be directed by the District Collector, Palakkad, at the expense of the petitioners. The District Collector shall sell the sand in public auction within three months and sale proceeds shall be remitted in the District/Sub Treasury and reported to the trial court.

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A copy of this order shall be submitted before the District Collector by the petitioners.

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P.S. GOPINATHAN, (JUDGE)

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knc/-

N.Malathi v. State of Kerala

Case brief

What is this about?

What did the court decide?

N.Malathi v. State of Kerala

Case brief

What is this about?

What did the court decide?

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