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