Allowed

Swetha Ann Varghese v. State of Kerala

Kerala HC21 Jun 2019Crl.MC/2754/2019

Case brief

AI extract

What is this about?

The Court allowed the petitioner to sell a seized vehicle despite ownership disputes pending in civil proceedings. Directions were issued to recover damages, transfer registration back to the petitioner, and secure a bond equivalent to the vehicle's market value.

What did the court decide?

Petitioner permitted to sell the vehicle subject to a bond equivalent to its valuation and transfer of registration to petitioner.

Swetha Ann Varghese Vs State of Kerala — Execution and Attachment | 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 ALEXANDER THOMAS

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FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941

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CRL.MC.NO.2754 OF 2019

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CMP 2749/2017 & CMP 7936/2017 OF JMFC, KAKKANAD CRIME NO.549/2017 OF THRIKKAKARA POLICE STATION, ERNAKULAM

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PETITIONER:

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SWETHA ANN VARGHESE

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REPRESENTED BY HER POWER OF ATTORNEY ROY K.VARGHESE, S/O.VARGHESE, AGED 63 YEARS, KAVERI APPARTMENTS, THUTHYOOR, KAKKANAD, PIN-682030

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BY ADVS.

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SRI.AADITHYAN S.MANNALI,SRI.ALPHIN ANTONY, SRI.AUGUSTUS BINU,SRI.VISAKH ANTONY,

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RESPONDENTS:

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1 STATE OF KERALA

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REP BY S.I. OF POLICE, THRIKKAKARA POLICE STATION, PIN-682030.

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2 RIYAS, AGED 35 YEARS, S/O.ABDUL RASHEED, LAILA MANZIL, PANANGODE, PERINGAMMALA P.O., THENNOOR VILLAGE, NEDUMANGADU, THIRUVANANTHAPURAM, PIN-695563.

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SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R1, SRI.ARUN THOMAS, ADVOCATE FOR R2

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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Crl.M.C. No. 2754 of 2019

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Dated this the 21^st day of June, 2019

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O R D E R

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The prayers in the above Criminal Miscellaneous Case

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filed under Sec.482 of the Code of Criminal Procedure, 1973 is as

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follows:

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“This Hon'ble Court may be pleased to call for the records leading to CMP No.7936 of 2017 and CMP No.2749 of 2017 on the files of the Judicial First Class Magistrate Court, Kakkanadu, set aside the order of dismissal dated 29-05-2018 in CMP No.7936 of 2017 and CMP No.2749 of 2017 on the files of the Judicial First Class Magistrate Court, Kakkanadu and thereby set aside the condition No.2 imposed in the Annexure A2 and modify the same by granting permission to the petitioner to sell the vehicle bearing Reg.No.KL-4-AC-1188, Nissan Sunny DCI XL to any prospective buyer.”

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Heard Sri.Aadithyan S.Mannali, learned counsel appearing for the petitioner (defacto complainant), Sri.Amjad Ali, learned Prosecutor appearing for R-1 (State) and Sri.Arun Thomas, learned counsel appearing for R-2.

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According the petitioner, she is the bonafide purchaser of a pre-used Nissan Sunny DCI XL model car bearing registration No.KL-4-AC-1188, which was registered as a Taxi and was

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Crl.M.C. No. 2754 / 2019

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..3..

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entrusted to her driver Najumudheen. The said driver, with whom the vehicle was entrusted had fraudulently sold the vehicle to a third party, viz, contesting respondent No.2 (Riyas) and the registration certificate of the car was also changed to the name of the 2^nd respondent. Petitioner's father had filed a complaint on behalf of the petitioner before the Thrikkakara Police Station in respect of the abovesaid incidents. Thereupon Anx.A1 Crime No.549/2017 of Thrikkakara Police Station was duly registered for offences punishable under Secs.406, 420, 468 and 471 of the IPC, in which the accused is the abovesaid driver Najumudheen.

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The abovesaid car was seized and produced before the JFCM, Kakkanad. The petitioner had filed C.M.P.No.3869/2017 (which led to Anx.A2) before the learned Magistrate seeking interim custody of seized vehicle. The said plea of the petitioner was allowed as per Anx.A2 order dated 4.7.2017 rendered by JFCM, Kakkanad in C.M.P.No.3869/2017 in

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..4..

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Crl.M.C. No. 2754 / 2019

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the abovesaid crime with the following conditions as can be seen from paragraph No. 3 of the said order.

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“

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1. The original petitioner shall execute bond for Rs.5,00,000/- with two sureties for the like sum.

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2. The petitioner shall keep the vehicle in her possession without making any structural alterations to its appearance and shall produce it before court, or before the investigation officer, as and when ordered.

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3. The petitioner shall produce photographs of the vehicle in its present condition, duly certified by the investigating officer, before release order is issued to her.”

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According to the petitioner she has fully complied with

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the directions stipulated in the said order and the vehicle was duly released to her. The grievance of the petitioner is that, thereafter she was unable to pay insurance premium in respect of said car, due to the fact that the vehicle ownership as to the registration certificate of the Motor Vehicles Department is still in the name of the 2^nd respondent. The petitioner thereafter had filed C.M.P.No.7936/2017 (which led to Anx.A6) before the learned Magistrate seeking directions to change the RC details and also filed C.M.P.No.2749/2017 (which led to Anx.A5) for lifting certain conditions in Anx.A2 order. Both the applications have now been dismissed as per

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Crl.M.C. No. 2754 / 2019

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..5..

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impugned Anxs.A6 and A5 orders dated 29.5.2018, as the questions in relation to the ownership of car, etc will have to be resolved before the civil court, etc.

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The complaint voiced by the petitioner is that, the crime has been registered as early as in the year 2017, and even as of now, the Police has not yet taken proper steps to finalise investigation and to file the final report/charge sheet before the jurisdictional Magistrate Court concerned. The petitioner has learned that the Police is not likely to give any priority to this case, and it might take quite a number of years before the trial is concluded, and by that time, the value of car would be substantially diminished and it would not be even economical for any prospective buyer to purchase the abovesaid car after the conclusion of trial. It is in the light of these aspects that the petitioner has filed the instant Crl.M.C. with the aforementioned prayers.

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7. Contesting respondent No.2 has filed an affidavit dated

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Crl.M.C. No. 2754 / 2019

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..6..

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4.4.2019. Sri.Arun Thomas, learned counsel appearing for R-2 would submit on the basis of averments in the said affidavit that, R-2 had happened to purchase the car on fully believing the version of the accused Najumudheen, that he was the duly authorised agent of the RC owner, and that the sale letter is issued by the RC owner, and that the RC owner could not be personally present since she was out of station in connection with her job. Believing the version of accused Najumudheen the 2^nd respondent had purchased the vehicle and transferred the RC of the said vehicle in his name by producing sale letter furnished by the accused before the Motor Vehicles Department. And that now he has come to know that the Police is in search of the car purchased by him, he himself had approached the Police authorities concerned, and had explained as to how the incidents have happened, and that he has also been cheated by the accused and that he purchased the vehicle, fully believing the version of accused Najumudheen, etc.

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Further R-2 would state that, the transfer of RC in his

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Crl.M.C. No. 2754 / 2019

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name ought not to have been done, and that he has no objection whatsoever for canceling the transfer in RC already effected in his name. Further Sri.Arun Thomas, learned counsel appearing for R-2 would submit on the basis of instructions of his party that, R-2 has no objection in getting the RC ownership getting transferred in the name of the petitioner in the registration certificate by appropriate proceedings of the Motor Vehicles Department. But that liberty may be given to R-2 to seek damages and appropriate claims against the accused Najumudheen in appropriate proceedings. The said submission made by 2^nd respondent appears to be quite fair and reasonable.

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Having regard to the fact that the trial process might get delayed, and having regard to the fact that the 2^nd respondent who was the purchaser of the car, is now willing to re-transfer the RC ownership in the name of the petitioner, this Court is of the view that the plea of the petitioner could be substantially allowed. Accordingly the following directions and orders are passed.

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i. The petitioner will immediately get the valuation of the car effected by a competent officer of the Motor Vehicles

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Crl.M.C. No. 2754 / 2019

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Department, like Assistant Motor Vehicle Inspector (AMVI)/ Motor Vehicles Inspector (MVI), etc and shall produce such valuation certificate of the car issued by the said officer before the JFCM, Kakkanad, who is dealing with Crime No.549/2017 of Thrikkakara Police Station, and a copy of the same should also be furnished by the petitioner to the Investigating Officer concerned.

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ii. The Investigating Officer will ensure that a proper mahazar in respect of the car along with due photographs taken from all sides is taken in the presence of witnesses without any further delay, and petitioner will fully co-operate in that process. The said mahazar and photographs could be utilized by trial court as secondary evidence, and the car need not be produced as a material object in the trial.

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iii. The petitioner and the 2^nd respondent will make appropriate application before the Motor Vehicles Department to ensure that the RC ownership given to R-2 is cancelled and is transferred back in the name of the petitioner. Counsel for R- 2 now submits that R-2 would fully co-operate with the petitioner and with the Motor Vehicles Department in those endeavours. On getting their appropriate application, the Motor Vehicles Department will ensure that the RC ownership which is now standing int he name of R-2 is cancelled, and the RC ownership is transferred back to the petitioner.

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iv. The petitioner will execute a bond of the value equivalent to

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..9..

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Crl.M.C. No. 2754 / 2019

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the value of the amount as shown in the valuation certificate of car issued by the Motor Vehicles Department, and two solvent sureties of the like sum, should also be furnished by her before the JFCM, Kakkanad, who is dealing with the instant crime. The petitioner will file an affidavit undertaking before the jurisdictional Magistrate Court concerned, that in case the final orders either in the impugned criminal proceedings, or in any other appropriate proceedings finds that the petitioner is not the lawful owner of the vehicle, then without prejudice to her right to challenge any such findings through appropriate remedies that she would indemnify the loss caused to any such lawful owner.

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v. Subject to these conditions, the petitioner is permitted to sell the car.

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vi. The 2^nd respondent is given liberty to initiate appropriate proceedings against the accused for damages and other claims.

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With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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MMG

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Crl.M.C. No. 2754 / 2019

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APPENDIX

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PETITIONER'S EXHIBITS:

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ANNEXURE A1 COPY OF FIR IN CRIME NO.549/2017 OF THRIKKAKARA POLICE STATION.

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ANNEXURE A2 COPY OF THE ORDER DATED 4/07/2017 IN CMP NO.3869/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT AT KAKKANADU

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ANNEXURE A3 THE COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER TO THE REGIONAL TRANSPORT OFFICE ERNAKULAM DATED 25/10/2017

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ANNEXURE A4 THE COPY OF THE LETTER ISSUED BY THE REGIONAL TRANSPORT OFFICE ERNAKULAM TO THE 1ST RESPONDENT

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ANNEXURE A5 CERTIFIED COPY ORDER DATED 29/05/2018 IN CMP NO.2749/2017 HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANADU.

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ANNEXURE A6 CERTIFIED COPY OF ORDER DATED 29/05/2018 IN CMP NO.7936/2017 BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANADU.

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ANNEXURE A7 THE TRUE COPY OF THE AFFIDAVIT GIVEN BY THE 2ND RESPONDENT

Swetha Ann Varghese v. State of Kerala

Case brief

What is this about?

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Swetha Ann Varghese v. State of Kerala

Case brief

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