Partly allowed

Kanakan v. State of Kerala

Kerala HC19 Mar 2014Crl.MC/1426/2014

Case brief

AI extract

What is this about?

Petitioner accused in cheating case challenging the conditions imposed by the Lower Magistrate for interim custody of a seized vehicle. Court set aside harsh security conditions, imposing lenient modifications considering the petitioner was a bona fide purchaser and the bank had not claimed the vehicle.

What did the court decide?

Conditions of the lower court order allowing interim custody of the vehicle were set aside and modified to a bond of Rs. 6,50,000, cash security of Rs. 1,00,000, and undertaking against alienation.

Kanakan Vs State of Kerala — Contract and Commercial Disputes | Kerala HC (2014)

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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 K.RAMAKRISHNAN

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WEDNESDAY, THE 19TH DAY OF MARCH 2014/28TH PHALGUNA, 1935

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Crl.MC.No. 1426 of 2014 ()

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--------------------------CRMP 10897/2014 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHENGANNUR

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PETITIONERS/ACCUSED:-:

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--------------------

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KANAKAN, AGED 35 YEARS, S/O.RAMACHANDRAN, CHERIVU VEEDU, VAZHAYIL VADAKKETHIL, KEEZHCHERIMIEL MURIYIL, CHENGANNUR VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT.

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BY ADV. SRI.AJITH MURALI

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RESPONDENTS/COMPLAINANTS:-:

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------------------------

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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

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2. HARRIS V.K.,

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S/O.MOOZA, V.K.HOUSE, 345/(2/245-F) V.K.HOUSE, KURICHYIL MURI, THALASSERY TALUK, KANNUR DISTRICT - 676 001.

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3. ABIN, AGED 24 YEARS, S/O.VENUGOPAL, EDAPPATHIL VEETI, ERIJIPPALAM VAZATHURATHI VILLAGE, KOZHIKODE DISTRICT - 673 001.

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4. THE BRANCH MANAGER, HDFC BANK, NADAKAVE BRANCH KOZHIKODE DISTRICT - 673 001.

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BY PUBLIC PROSECUTOR SMT.S.HYMA

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 1426 of 2014 ()

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APPENDIX

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PETITIONER(S)' EXHIBITS

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ANNEXURE A: THE TRUE COPY OF THE CERTIFICATE OF REGISTRATION.

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ANNEXURE B: THE TRUE COPY OF THE SALE AGREEMENT EXECUTED BY THE PETITIONER AND THE 2ND RESPONDENT DATED 11.12.2010.

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ANNEXURE C: THE TRUE COPY OF THE STATEMENT GIVEN BY THE 3RD RESPONDENT BEFORE THE CHENGANNUR POLICE.

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ANNEXURE D: THE TRUE COPY OF THE INTERIM ORDER IN CRL.M.C.NO.5883/2013 OF THIS HONOURABLE COURT DATED 16.12.2013.

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ANNEXURE E: THE TRUE COPY OF THE ORDER CRL.M.P.NO.10897/2014 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHENGANNUR DATED 25.01.2014.

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RESPONDENT(S)' EXHIBITS : NIL.

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-----------------------

//TRUE COPY//

P.A. TO JUDGE

K. RAMAKRISHNAN, J.

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Crl.M.C.No.1426 of 2014

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Dated this the 19^th day of March, 2014.

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O R D E R

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This is an application filed by the petitioner, who is one of the accused in Crime No.668/2011 of Chengannur police station seeking modification of the order passed in Crl.M.P.No.10897/2013 on the file of the Judicial First Class Magistrate Court-I, Chenganur under Section 482 of the Code of Criminal Procedure.

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It is alleged in the petition that the petitioner is the first accused in C.C.No.484/2013 on the file of the Judicial First Class Magistrate Court-I, Chengannur and it was originated on the basis of a case registered as Crime No.668/2011 on the basis of a complaint filed by the HDFC bank which was originally shown as the third respondent subsequently deleted from the party array alleging the offences under Sections 420, 411, 468 and 471 read with Section 34 of the Indian Penal Code. It is alleged in the

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Crl.M.C.No.1426 of 2014 2

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petition that the case of the bank was that the original second accused purchased a vehicle by availing a loan of Rs.8,16,000/- from the defacto complainant bank and hypothecated the vehicle in favour of the bank and without informing the Bank, the second accused sold the same to the third accused from whom the present petitioner had purchased the same. Thereafter the vehicle was reregistered as TN 45/V 7126. The vehicle was seized from the possession of the petitioner and produced before court and the petitioner filed Crl.M.P.No.10897/2014 for interim custody of the vehicle and the learned Magistrate passed Annexure-E order allowing the application imposing the following conditions:

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The petitioner shall furnish cash security for Rs.2,00,000/- and execute bond for Rs.4,50,000/- with two solvent sureties for the like sum each.

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The sureties shall produce the title deeds with respect to their properties, if they are furnishing their property as security and the sureties shall have permanent residence in Kerala.

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The petitioner shall produce the vehicle as and when directed by this court.

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Crl.M.C.No.1426 of 2014

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Condition Nos.1 and 2 imposed by the court below is being challenged by the petitioner.

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The counsel for the petitioner submitted that in fact petitioner is the bonafide purchaser and after he purchased the vehicle, he had remitted Rs.6,50,000/- to the bank and cleared the arrears and the documents have been handed over to him by the bank and that was the reason why they did not even made any claim in respect of the vehicle. So the condition imposed is excessive and harsh.

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On the other hand, the learned Public Prosecutor submitted that the petitioner is an accused in several cases including abkari offences. Further, he had also involved in cases of manipulating documents etc and that was the reason why the court below had imposed harsh condition for releasing the vehicle.

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I have considered the contentions of both the parties.

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It is an admitted fact that the vehicle was purchased

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Crl.M.C.No.1426 of 2014 4

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by the second accused after availing a loan from the defacto complainant bank and it is also an admitted fact that while hypothecation agreement was in force, the second accused sold the same to the third accused and he in turn sold the same to the present petitioner and while he was in possession of the vehicle, on the basis of a complaint filed by the bank, a crime was registered and the vehicle was seized from the possession of the petitioner. Though the vehicle was seized in the year 2012 and with the police custody, the bank had not made any claim to get the vehicle. That is mentioned in the impugned order as well which shows that they have no interest in the vehicle at present. That is the reason why the court had ordered interim custody of the vehicle in favour of the petitioner. Merely because he was accused in some other cases, is not a ground to impose harsh conditions incapable of complying with, especially when the vehicle has already been kept in police custody for long time and if it is allowed to be so, the same will be without any use. So considering

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Crl.M.C.No.1426 of 2014 5

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the circumstances, this Court feels that some leniency can be shown by modifying the conditions and adding certain more conditions to safeguard the interest of the prosecution as well to avoid the vehicle being misused or alienated, will be sufficient and that will meet the ends of justice. So condition Nos.1 and 2 imposed by the court below are set aside and modified as follows:

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i. The petitioner is directed to execute a bond for Rs.6,50,000/- being the value assessed by the motor vehicle department for the vehicle with two solvent sureties for the like sum each to the satisfaction of the court below.

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ii. The petitioner shall deposit a cash security of Rs. One lakh before that court.

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iii. The petitioner shall not alienate or encumber or do anything causing any reduction in the value of the vehicle or tamper with the conditions till the disposal of this case.

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iv. The petitioner shall file an affidavit undertaking that he will be abide by the conditions strictly imposed by this

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Crl.M.C.No.1426 of 2014

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court.

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v. The petitioner shall produce the vehicle as and when required by the court till the disposal of the case.

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vi. The court below is entitled to direct the sureties to produce the documents regarding their solvency and after verification, the documents will have to be returned to the sureties.

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With the above modifications, the petition is disposed

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of.

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Office is directed to communicate this order to the concerned court immediately.

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Sd/K. RAMAKRISHNAN, JUDGE.

/true copy/

P.S to Judge

Crl.M.C.No.1426 of 2014 7

Kanakan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kanakan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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