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Sumesh vs Mosses on 6 September, 2007

Kerala High Court
Sumesh vs Mosses on 6 September, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 2799 of 2007()


1. SUMESH, S/O. RAJASEKARA ABU,
                      ...  Petitioner

                        Vs



1. MOSSES, S/O. DASAN,
                       ...       Respondent

2. NELSON, S/O. MICHAEL,

3. STATE OF KERALA,

                For Petitioner  :SRI.B.MOHANLAL

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :06/09/2007

 O R D E R
                             R. BASANT, J.
                    - - - - - - - - - - - - - - - - - - - - - -
                     Crl.M.C.No. 2799 of 2007
                    - - - - - - - - - - - - - - - - - - - - - -
             Dated this the 6th day of September, 2007

                                 O R D E R

The petitioner is aggrieved by an order passed under Section

451 Cr.P.C. by the learned Magistrate.

2. To put it in a nut shell, the crime was registered on the

complaint of the registered owner of the vehicle, who alleged that an

autorikshaw belonging to him had been thieved. The registered

owner had entered into an agreement with the petitioner herein, the

financier, to avail a loan on the security of the vehicle. The police

registered the crime and conducted the investigation. The vehicle

was produced from the possession of the first respondent herein. I

shall refer to him as the agreement owner. The agreement owner

contended that he was in possession of the vehicle not by any illegal

means, but on the strength of Ext.P3 agreement. He staked a claim

for release of the vehicle to him pending investigation and trial. The

petitioner herein also staked a claim for interim custody of the vehicle

in the course of the investigation/trial. Significantly, the registered

owner did not stake any claim for release of the vehicle under Section

451 Cr.P.C.

Crl.M.C.No. 2799 of 2007
2

3. The learned Magistrate considered the application under Section

451 Cr.P.C. filed by the agreement owner and the financier together. The

agreement owner was examined as PW1 and Exts.P1 to P6 were marked on

his side. The registered owner was examined as RW1 and a witness was

examined as RW2. Exts.D1 to D3 were also marked.

4. The learned Magistrate, by the impugned common order, came to

the conclusion that the agreement owner is the person most entitled to

possession of the vehicle. It is obvious that the learned Magistrate accepted

the contention of the agreement owner that he had come into legal

possession of the vehicle from the registered owner under Ext.P3.

Significantly, the registered owner has not challenged the impugned order

also.

5. The petitioner/financier contends that the petitioner is the person

most entitled to possession of the vehicle and in these circumstances the

learned Magistrate should not have ignored his claim and should not have

preferred to release the vehicle to the agreement owner.

6. I find no merit in the challenge raised in this petition under

Section 482 Cr.P.C. The petitioner is only the financier, who has advanced

amounts to the registered owner for purchase of the vehicle. If there be

Crl.M.C.No. 2799 of 2007
3

default in payment of the instalments, the petitioner can certainly approach

the civil court to enforce his rights in respect of the vehicle. In whose

soever possession the vehicle may be, the rights of the petitioner to proceed

against the security offered to him by the registered owner will certainly

remain. The petitioner has not admittedly effected any seizure of the

vehicle. The petitioner is not, in these circumstances, entitled to possession

of the vehicle under Section 451 Cr.P.C. I am of the opinion that the

learned Magistrate committed no error warranting interference by

invocation of the jurisdiction under Section 482 Cr.P.C. in directing release

of the vehicle to the agreement owner, from whose possession the vehicle

was found to have been seized by the police.

7. This Crl.M.C. is, in these circumstances, dismissed. I may

reiterate that the rights of the petitioner to proceed against the security in

accordance with law by initiating appropriate proceedings before the civil

court in enforcement of his right against the security offered to him shall

remain unfettered by this order.

(R. BASANT)
Judge

Crl.M.C.No. 2799 of 2007
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