Allowed

Jiji George, v. State of Kerala

Kerala HC21 Mar 2019Crl.MC/1185/2019

Case brief

AI extract

What is this about?

The High Court allowed a petition under Section 482 CrPC challenging the refusal to grant custody of a seized vehicle. It set aside the magistrate's order and directed interim custody to the petitioner, citing judicial restraint and theкта of idle vehicles.

What did the court decide?

Impugned order set aside; directed Magistrate to grant interim custody of the vehicle to the petitioner.

Jiji George, Vs State of Kerala — Cheque Dishonour | Kerala HC (2019)

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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 RAJA VIJAYARAGHAVAN V

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THURSDAY ,THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940

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Crl.MC.No. 1185 of 2019

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AGAINST THE ORDER/JUDGMENT IN CMP 6538/2018 of JUDICIAL MAGISTRATE OF FIRST CLASS ,NILAMBUR

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CRIME NO. 20/2017 OF Vazhikadavu Police Station , Malappuram

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PETITIONER/ACCUSED:

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JIJI GEORGE, AGED 36 YEARS S/O GEORGE, 35/15, THAZHATHUMALAYIL HOUSE, VARAKULAM, MANIMOOLI P.O.679 333

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BY ADV. SRI.A.T.ANILKUMAR

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RESPONDENTS/COMPLAINANT:

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

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2 NOUSHAD ALI, S/O MUHAMMAD, KADAKULATHU VEEDU, CHENGATHOR P.O.

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BY ADVS. SRI.P.SAMSUDIN SRI.JITHIN LUKOSE

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BY SR PUBLIC PROSECUTOR SRI M S BREEZ

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 1185 of 2019

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ORDER

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This petition is filed under Section 482 of the Cr.P.C challenging the order dated 05/02/2019 in C.M.P.No.6538 of 2018 on the file of Judicial First Class Magistrate Court, Nilambur.

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The petitioner is the accused in Crime No.20 of 2017 of the Vazhikkadavu Police Station registered under Section 406 and 420 of the IPC.

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The de facto complainant is a PWD contractor. He wanted to purchase an earth-mover. He was informed from some quarters that if the earth-mover is purchased in the name of a person having licence, it was beneficial. In the said circumstances, loans were availed from various finance companies and an earth-mover was purchased in the name of the petitioner. The specific case of the de facto complainant is that substantial amounts were paid by him towards loan repayment. However, the accused, concealing the said fact, is alleged to have obtained the papers from the financier and appropriated the vehicle as his own. By the acts of the petitioner, the de facto complainant is alleged to have sustained a loss of about 15 lakhs.

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Crl.MC.No. 1185 of 2019

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Pursuant to the registration of the crime, the vehicle was seized by the police.

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The petitioner filed an application contending that he is the registered owner and sought for release of the vehicle. According to him, no purpose would be served by keeping the vehicle idle and by exposing it to the vagaries of nature. He produced the original

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documents before the court below to show his bona fides.

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The de facto complainant was impleaded in the course of proceedings. He contended that he is the absolute owner. The prosecution also opposed the prayer of the petitioner.

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The learned Magistrate, refused the prayer of the petitioner to

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have interim custody of the vehicle on two grounds. It was held that the final report having been laid, the case of the de facto complainant stood bolstered. An apprehension was also expressed that the petitioner would alienate the vehicle and cause loss to the de facto complainant.

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I have considered the submissions advanced.

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Apparently, the petitioner is the registered owner of the vehicle. He had produced the original of the R.C.Book, the Insurance

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certificates and the receipt showing the remittance of road tax.

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Crl.MC.No. 1185 of 2019

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Section 451 of the Cr.P.C. empowers the criminal court to make orders for interim custody of the property produced before it during trial and inquiry. When the property is produced before the criminal court, regard being had to nature of the property so produced, the criminal court has a discretion to make such order as it thinks fit for the proper custody of such pending conclusion of enquiry or trial. The aspect of possession and the right of possession alone had to be considered by the court below in the ordinary course. Furthermore, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously as it would serve various salutary purposes. The Court below ought to have realized that the owner of the article would suffer because of its remaining unused or by its misappropriation. The Court or the police would not be required to keep the article in safe custody and further if the possession of article is handed over after preparing a proper mahazar, the same could have been used in evidence instead of its production before the Court during the trial. The petitioner being the registered owner is the proper person to have custody of the same pending the criminal proceedings. No purpose would be served in keeping such a vehicle idle.

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Having considered the relevant aspects, I am unable to

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Crl.MC.No. 1185 of 2019

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sustain the order passed by the learned Magistrate.

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This petition will stand allowed and the impugned order is set aside. The learned Magistrate is directed to grant interim custody of the vehicle to the petitioner by imposing appropriate conditions as has been laid down by the Apex Court in Sunderbhai Ambalal Desai v. State of Gujarat [2003 (10) SCC 283]. The learned Magistrate may impose a condition that the petitioner shall furnish property security for the value of the vehicle in addition to other conditions that may be imposed.

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This petition is disposed of accordingly.

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SD/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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//TRUE COPY// P.A. TO JUDGE

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avs

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Crl.MC.No. 1185 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A	TRUE COPY OF RECE ADVANCE AMOUNT OF 17.10.2011	IPT SHOWING THE PAYMENT OF RS 20,000/- DATED
ANNEXURE B	TRUE COPY OF THE SHOWING THE PAYME 31.10.11	DETAIL OF THE RECEIPT NT OF RS 4,72,761/- DATED
ANNEXURE C	TRUE COPY OF THE FINANCE COMPANY A PURCHASE FACILITY	SCHEDULE ISSUED BY THE T THE TIME OF TAKING HIRE
ANNEXURE D	TRUE COPY OF THE ABOVE REFERRED VI	R.C PARTICULARS OF THE HILE NO KL-10-AJ-1727
ANNEXURE E	TRUE COPY OF THE THE VEHICLE FORM	INSURANCE CERTIFICATE OF 27.10.2015 TO 26.10.2016
ANNEXURE F	TRUE COPY OF THE PAYMENT OF ROAD T	TAX TOKEN SHOWING THE AX
ANNEXURE G	TRUE COPY OF THE	FIR
ANNEXURE H	TRUE COPY OF THE 6538/18 IN CRIME NILAMBOOR.	CLAIM PETITION CMP NO NO 20/17 OF JFCM,
ANNEXURE I	TRUE COPY OF THE CRIME NO 20/17 OF	ORDER IN CMP NO 6538/18 IN JFCM, NILAMBOOR.

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RESPONDENT'S/S EXHIBITS:

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ANNEXURE R2(a)	TRUE COPY OF BY M/S MAGMA	PARAMETERS FOR GRANTING LOAN FINANCIERS
ANNEXURE R2(b)	TRUE COPY OF RESPONDENT'S	THE BANK STATEMENT OF 2ND ACCOUNT
ANNEXURE R2(c)	TRUE COPY OF IN EMIs	THE CASH RECEIPTS FOR PAYMENT

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Crl.MC.No. 1185 of 2019

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ANNEXURE R2(d) TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT IN CRL.MC. 3294/2017 DATED 26.06.2018.

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avs //TRUE COPY// P.A TO JUDGE

Jiji George, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Jiji George, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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