Dismissed

Sushil Gaba v. State of Kerala

Kerala HC19 Jun 2013Crl.MC/1164/2013

Case brief

AI extract

What is this about?

In a criminal miscellaneous case under Section 482 CrPC, the High Court of Kerala dismissed the petitioner's claim for interim custody of a vehicle seized in a dacoity case. The Court held that despite the registration certificate being in the petitioner's name, his title was derived illegally from the accused, whereas the de facto complainant had a valid purchase agreement prior to the crime.

What did the court decide?

The batch petition filed under Section 482 CrPC praying to set aside the order granting interim custody to the de facto complainant was dismissed.

Sushil Gaba Vs State of Kerala — Cheque Dishonour | Kerala HC (2013)

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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 V.K.MOHANAN

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TUESDAY, THE 11TH DAY OF JUNE 2013/21ST JYAISHTA 1935

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Crl.MC.No. 1164 of 2013 () ---------------------------

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CRIME NO. 54/2011 OF HILL PALACE POLICE STATION , ERNAKULAM

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PETITIONER: -----------

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SUSHIL GABA 1A-96, WILLINGDON ESTATE, D L F PHASE - 5, GURGOAN-122 002. BY ADVS.SRI.P.A.AUGUSTIAN SRI.V.K.SATHYANATHAN SRI.M.A.BABY SMT.LINDA.M.J.

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RESPONDENBTS:

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1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR. 2. NOWFEL.P.V. PARATTUVEETTIL HOUSE, ORUMANAYUR POST CHAVAKKAD VILLAGE, THRISSUR DIST.

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R1 BY PUBLIC PROSECUTOR SMT.HYMA R2 BY ADV. SRI.C.P.MOHAMMED NIAS

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.6.2013 THE COURT ON 11-06-2013 PASSED THE FOLLOWING:

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Crl.MC.No. 1164 of 2013 () ---------------------------

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APPENDIX

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PETITIONER(S) EXHIBITS

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ANNEXURE-A: A COPY OF THE BANK STATEMENT

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ANNEXURE-B: A NOTARIZED COPY OF THE REGISTRATION CERTIFICATE

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ANNEXURE-C: A NOTARIZED COPY OF THE INSURANCE CERTIFICATE

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ANNEXURE-D: A TRUE COPY OF THE NOTICE

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ANNEXURE-E: TRUE COPIES OF THE PETITION OF THE PETITIONER BEFORE THE LD.MAGISTRATE

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ANNEXURE-F: TRUE COPIES OF THE PETITION OF THE DE-FACTO COMPLAINANT

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ANNEXURE-G: TRUE COPIES OF THE OBJECTION FILED BY THE PETITIONER TO THE PETITION OF THE DE-FACTO COMPLAINANT

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ANNEXURE-H: CERTIFIED COPY OF THE ORDER.

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RESPONDENTS' ANNEXURES :

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ANNEXURE R2(A). COPY OF THE SALE AGREEMENT DATED 13.11.2010

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ANNEXURE R2(B). COPY OF THE SALE RECEIPT ISSUED BY M/S.JEPPIAR EDUCATIONAL TRUST IN FAVOUR OF THE 2ND RESPONDENT

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ANNEXURE R2(C). COPY OF CRL.M.C. NO.3484/2012 DATED 05.11.2012 FILED BY NIPUN MIGLANI BEFORE THE HON'BLE HIGH COURT OF KERALA WITHOUT ANNEXURES

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ANNEXURE R2(D). COPY OF THE ORDER DATED 20.11.2012 OF THE HON'BLE HIGH COURT OF KERALA IN CRL.M.C.3484/2012.

/ TRUE COPY /

P.A. TO JUDGE

V.K.MOHANAN, J.

------------------------------Crl.M.C.No.1164 of 2013

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Dated this the 19^th day of June, 2013.

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O R D E R

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The above Crl.M.C. is filed under section 482 of

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Cr.P.C., at the instance of a claimant in C.M.P.No.5591/12 in the court of Additional Chief Judicial Magistrate-Ernakulam, whereby he prayed for the interim custody of a vehicle namely Mercedes Benz S 320cdi car bearing Registration No.TN 02 AD 1770, which involved in Crime No.54/11 of Hill Palace Police station and since the learned Magistrate dismissed his claim, he preferred the above Crl.M.C. with a prayer to set aside the common order dated 7.2.2013 in C.M.P.No.5591/12 and 268/13 in Crime No.54/11 of Hill Palace police station and to release the said vehicle to him on any condition deem fit and proper to this Court.

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The above crime was registered for the offences punishable under sections 363, 347, 395 of IPC, at the instance of one Nowfel P.V., who is the de facto complainant, wherein the allegation is that the accused persons in the above crime lured the petitoner under the pretext of being prospective purchasers of the car and requested him to come with the car to a particular spot and when he reached the spot with the car, they abducted him and committed dacoity by stealing the said car from his possesion on 31.12.10. On the basis of the above complaint, a crime was registered by the Kalamassery police station, which eventually numbered as Crime No.54/2011 of Hill Palace police station, Thrippunithura, and the investigation is in progress and likely to complete without further delay.

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The car was seized as part of the investigation during the month of December 2012, from Delhi. With

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respect to the above car, two claim petitions are preferred before the court below, one by the petitioner herein, ie., C.M.P.No.5591/12 and the other by the de facto complainant, who is the 2^nd respondent herein, as C.M.P.No.268/13. The learned Magistrate after having considered the merits of each of the cases and the claim and counter claim, by pronouncing a common order dated 7.2.2013 in the above two petitions, dismissed the petition, ie., C.M.P.No.5591/12 filed by the petitioner herein, but C.M.P.No.268/13 filed by 2^nd respondent herein was allowed on the following conditions :

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“1. The interim custody of the vehicle Benz Car bearing Reg.No.TN.02.AD.1770 is granted to the de facto complainant petitioner in CMP.268/13 on executing bond with two solvent sureties each undertaking to produce the vehicle as and when required by the court for `41,50,000/- each.

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The sureties shall deposit their original title deeds along with encumbrance certificate in court until further orders.

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The de facto complainant shall arrange for taking photographs of the vehicle, attested by the investigating officer and produce the photographs

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along with its negative or CD.”

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It is challenging the above order of granting interim custody with respect to the above vehicle to the 2^nd respondent herein by allowing C.M.P.No.268/13 and dismissing C.M.P.No.5591/12 of the petitioner, the above M.C. is filed.

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According to the petitioner, he is a resident of Gurgoan and claimed that he purchased the said vehicle from a car dealer named M/s.Big Boy Toyz Pvt.Ltd., New Delhi, during the year 2011 and at the time of purchasing the car from one Mohammad Habib of Chennai, the R C book was in favour of the prior owner of the said vehicle namely, M/s.JEPPIAAR Education Trust, Chennai. According to the petitioner, he was not aware of the crime in which the vehicle is involved and he produced the vehicle before the Investigating Officer, who had taken the custody of the same and produced

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before the court. It is the contention of the petitioner that the 2^nd respondent who is the de facto complainant has no right to get the custody of the vehicle, particularly when the petitioner is the owner of the vehicle and he had effected payment on purchase of the vehicle on 12.1.2011 through RTGS from ICICI Bank Rajender Place, New Delhi Branch.

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On the other hand, the other petition ie., C.M.P.No.268/13 was filed by the 2^nd respondent-de facto complainant in the above crime, setting forth the reasons which are the subject matter of the crime. According to him, the said car was purchased by him from M/s.JEPPIAAR Education Trust, Chennai, vide agreement dated 13.11.2011 of payment of a sum of `41,50,000/- and thus according to him, he is the rightful owner of the said car. According to him, one Nipun Miglani came to the possesion of the vehicle as being the

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beneficiary of the crime committed by other accused and

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the petitioner herein, who is the claimant in C.M.P.No.5591/12, has subsequently became the beneficiary of the said crime and according to the petitioner therein/the 2^nd respondent herein, the present petitioner is not entitled get the possession of the vehicle.

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I have carefully considered the arguments advanced by the counsel for the petitioner and the learned counsel for the respondent. I have also heard the learned Public Prosecutor.

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On a perusal of Annexure H order it can be seen that the Investigating Officer in the above crime has filed a report in terms of the order of the learned Magistrate and in the said report, it is stated that the petitioner is entitled to get an order of granting interim custody of the vehicle in terms of the prayer in

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C.M.P.No.5591/12. The prosecution has also reported that the 1^st accused in the above claim, namely Mohammed Habib, had obtained possession of the said vehicle by committing dacoity and according to the Investigating Officer, the de facto complainant who is the 2^nd respondent herein, is entitled to get the custody of the vehicle.

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From the factual inputs and as per the allegation in the above crime, it can be seen that on 29.12.2010 and on 30.12.2010, A3 in the above crime, called the de facto complainant over telephone under the guise of prospective purchaser of the car and as directed by him, and believing the representation made by A3, according to the de facto complainant, he took the car to the Reliance petrol pump on 30.12.10 at about 4 p.m. and thereafter the accused persons abducted the de facto complainant and forcibly took the car to a rented house

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situated at Eroor in Ndama Village and brutally manhandled him. As per the allegation, the accused committed extortion by obtaining signatures of de facto complainant in blank paper affixed with revenue stamp and blank cheque and coerced the de facto complainant to sell the above said Benz car to A1 and forcibly took its key. Thus, the accused committed dacoity by committing theft of the above said Benz car. It is relevant to note that, on the above allegation, FIR was registered on 4.1.2011 and consequently the accused were arrested and during the investigation, the car was taken into custody from Hariyana by the Investigating team.

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In the light of the rival claim, the question to be considered is as to who is the apt person to give interim custody of the said vehicle in the given facts and circumstances of the case. From the order under

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challenge it appears that one Nipun Miglani approached the trial court to grant exemption to produce the vehicle before the police but the same was rejected. On a careful analysis of the above facts it can be seen that the petitioner herein claimed to have purchased the vehicle from one of the persons, who obtained the custody of the said vehicle from 1^st accused in the above crime. During the investigation, according to the learned Magistrate, no contra evidence is obtained to show that the vehicle was not sold by the registered owner namely M/s.JEPPIAAR Education Trust, Chennai, to the de facto complainant. Therefore, the claim of the de facto complainant that he purchased the vehicle from the said Trust on the basis of Ext.P1 agreement of payment of `41,50,000/- appears to be correct. From the report of the Investigating Officer, the learned Magistrate has also found that as early as on 18.2.2011, an intimation

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was given to the Chennai North West RTO regarding the offence and prohibiting change of registration certificate. It is thereafter on 22.5.2012, the registration certificate of the vehicle was changed into the name of the claimant, the petitioner herein, at the Chennai Thiruvaniyoor RTO. The further report of the Investigating Officer revealed that the address mentioned by the petitioner in the registration certificate is the address of Nipun Miglani and the claimant Sushil Gaba-the petitioner herein, was not a resident in the said address. Thus it is crystal clear that after the incident in Crime No.54/11, the 1^st accused therein came in possession of the vehicle and the petitioner as well as Nipun Miglani have claimed right over the vehicle only on the basis of such claim and title of the 1^st accused in the above crime. Thus it can be seen that the registration certificate of the vehicle has

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been changed to the name of the present petitioner by overlooking the intimation given by the Investigating Agency and the claim of the petitioner regarding the title of the vehicle with him is not factually and legally correct. The possession at the time of seizure of the vehicle, as claimed by the petitioner, and his claim as a registered owner for getting the interim custody of the vehicle, cannot be entertained at this stage. There are exception, and right of a registered owner cannot be treated as an absolute right and such claim has to be decided on the basis of the facts and circumstances involved in each case. On a scanning of the facts and circumstances mentioned above, it appears to me that, the vehicle in question after the commission of the offence, which is the subject matter of the above referred crime, eventually reached in the possession and ownership of the petitioner illegally and by committing

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fraud. Having regard to the facts and circumstances involved in the case, according to me, the transfer of the ownership and title of the vehicle to the de facto complainant is complete and therefore the trial court is fully justified in its finding. The only procedure yet to be fulfilled thereto, to get registered the vehicle properly is by reporting the factum of change of ownership by sale, to the registering authority.

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In the light of the decisions reported in B.Lalithchand Nahar Vs. Inspector of Police, Central Crime Branch, Madras (1991 Crl.Law Journal 1111) and in Sajidevan Vs. State of Kerala (2009(4) KHC 884) , according to me, neither mere possession nor mere fact of registration of the vehicle in the name of a particular claimant, is not sufficient in deciding the question as to who is the deserved person to give the custody of the vehicle involved in the crime.

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If the registration certificate was obtained by illegal means, claim of such R.C. owner cannot be entertained. Likely, if the possession is also got unlawfully or under threat or by way of theft, such possession cannot be treated as lawful possession. But in the present case, it can be seen that the de facto complainant was physically given the possession of the vehicle on the basis of a valid agreement and that too after giving the sale consideration. Allegedly, the said vehicle was removed from his lawful possession after committing such offences. As rightly pointed out by the learned Magistrate, the petitioner’s claim over the title of the vehicle was originated from the 1^st accused in the crime and the vehicle was eventually reached in the possession of the petitioner.

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In this juncture it is relevant to note that even though as per the claim of the petitioner, he purchased

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the vehicle on 12.1.2011 from a used car dealer, the transfer of the ownership into his name was effected only on 22.5.2012. There is no explanation for such delay. According to me, the absence of any convincing explanation for such long delay in the given facts and circumstances is meaningful, which will go against the petitioner. So, according to me, there is no merit in the claim of the petitioner for getting interim custody of the vehicle in question. The learned Magistrate after having considered the entire merits and de merits of the claims and counter claims, decided to grant the interim custody to the 2^nd respondent-claimant in C.M.P.No.268/13, which according to me, is quite proper, correct and legal. Suffice to say, the learned Magistrate has already imposed sufficient conditions to preserve the above vehicle in proper condition and adequate security measures are incorporated for getting back the vehicle

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as and when required. Now, the custody of the vehicle given to the 2^nd respondent is only as an interim measure and it is for the learned Magistrate to deal with the said vehicle in question, being the property involved in a criminal case, on conclusion of the trial, under section 452 of Cr.P.C.

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In the result, I find no reason to interfere with the order of the learned Magistrate, dismissing the claim of the petitioner and granting interim custody of the vehicle in question in favour of 2^nd respondent, who is the de facto complainant. Accordingly, the above petition is dismissed.

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Sd/-

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V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

Sushil Gaba v. State of Kerala

Case brief

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Sushil Gaba v. State of Kerala

Case brief

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