Shameera Beegum vs State Of Kerala
2021 Latest Caselaw 21068 Ker

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                         PRESENT
                          THE HONOURABLE MR. JUSTICE K.HARIPAL
               WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
                                  CRL.MC NO. 2555 OF 2021
AGAINST THE ORDER/JUDGMENT IN CMP 470/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
                             PERINTHALMANNA, MALAPPURAM


PETITIONER:


               SHAMEERA BEEGUM
               AGED 38 YEARS
               W/O.ABDUL RASHEED, KARIKKUMPURATH HOUSE, ALIPARAMBA, THOOTHA
               P.O., PERINTHALMANNA, MALAPPURAM 679 457

               BY ADVS.
               A.RAJASIMHAN
               SHRI. AYYAPPADAS V
               KUM.VYKHARI.K.U



RESPONDENTS:


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

      2        THAHIR MON
               AGED 25 YEARS
               S/O.MOHAMMED KUTTY, THONGATHU HOUSE, PARAL, THOOTHA P.O.,
               PERINTHALMANNA, MALAPPURAM 679 357

               BY ADV SHARAN SHAHIER



               SR.PP - SRI. NOUSHAD




      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.10.2021, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.2555 of 2021
                                   2

                                ORDER

Petitioner is the defacto complainant and informant in Crime

No. 1018 of 2020 of Perinthalmanna police station, which was

registered on 17.12.2020 alleging offence punishable under Section

379 of the IPC. The allegation is that on 16.12.2020 at 19.50 hours

when her husband had parked Maruti Ertiga car bearing

registration No. KL-53H-6543 in Paral Centre, it was dishonestly

thieved by someone. That crime was registered on the basis of a

written complaint given by the petitioner before the Sub Inspector

of police. In the complaint she suspected the involvement of

Thahir, son of Muhammed Kutty and his cronies for the crime. It

was further stated that the car was thieved along with two mobile

phones, two executive bags and valuables likes 3½ sovereigns of

gold, Rs.1,80,000/-. On that basis the crime was registered and

during the course of investigation the 2nd respondent who is the

accused produced the vehicle before police on 06.03.2021 which

was seized under Ext-A3 mahazar. While the car was in the

custody of the Court, both the petitioner and the 2 nd respondent

moved applications under Section 451 of the Cr.P.C. seeking Crl.M.C.No.2555 of 2021

interim custody of the vehicle. After hearing counsel on both sides,

by Annexure-A6 order dated 30.04.2021 the learned Judicial First

Class Magistrate-I, Perinthalmanna passed an order entrusting the

vehicle with the 2nd respondent on certain conditions. Aggrieved

by the same, the petitioner has moved this Court seeking to quash

Annexure-A6 order and to direct the Magistrate to give interim

custody of the vehicle covered by Annexure-A2 registration

certificate to the petitioner. At the time of admission itself, the

learned counsel for the 2nd respondent entered appearance and

opposed any interim order and thus both parties were heard.

2. The claim of the petitioner is that she is the registered

owner of the vehicle, that by playing trick on her, the 2 nd

respondent had managed to execute an agreement on 18.07.2018 as

if the car was agreed to be sold for an amount of Rs. 7,00,000/-.

But that sale did not materialise. On 18.08.2018 itself the vehicle

was returned to her and it is in her absolute possession and

enjoyment. In proof of the same she has contended that she is the

registered owner of the vehicle, that the insurance has been

renewed by her proving which Annexure-A3 insurance certificate Crl.M.C.No.2555 of 2021

has been produced besides Annexure-A4 invoice issued by KVR

Auto Cars Pvt. Ltd which shows that she had arranged some repairs

for the vehicle on 10.12.2020. According to the learned counsel,

after thieving the vehicle the 2nd respondent is monitoring the

movement of the petitioner and then waited for the Criminal

Miscellaneous Case to be considered and this conduct of the 2 nd

respondent indicates that he is over enthusiastic in the matter; the

learned Magistrate was entrusting the vehicle to the culprit which is

bad and sought to be undone by the Court invoking jurisdiction

under Section 482 of the Cr.P.C.

3. The 2nd respondent has strongly opposed the application.

He has relied on Annexure-R2(a) agreement executed between

himself and the petitioner which indicates that the vehicle was

agreed to be sold to him for a total consideration of Rs. 7,00,000/-,

Rs. 3,00,000/- was paid at once and the balance was agreed to paid

in forty five days on the petitioner clearing the bank loan

outstanding against the vehicle, that over a period of time the

balance amount was also paid. However, according to the 2 nd

respondent, during the last panchayath election, on personal request Crl.M.C.No.2555 of 2021

of the husband of the petitioner the vehicle was handed over to him

for some time for the purpose of the election which was duly

returned to him and now she has caused to register a false case

against him, that the petitioner is not entitled to get custody of the

the vehicle. According to him even though the respondent had

insisted for transferring ownership of the vehicle in his name, the

petitioner was not obliging and taking advantage of that situation

the crime has been registered with false allegations.

4. I heard the learned counsel for the contesting parties and

also the learned Senior Public Prosecutor.

5. The learned counsel for the petitioner reiterated the

arguments in the statement of facts. According to him absolutely

no materials are there to say that the vehicle was transferred to the

petitioner. Annexure-R2(a) agreement stands rescinded,

immediately after one month of the same the vehicle was returned

to her and it is totally incredible that the vehicle was given to her

for sometime for the purpose of election to the Panchayath etc.

According to learned counsel, the learned Magistrate passed an

interim order without appreciating the law and facts of the case. Crl.M.C.No.2555 of 2021

On the other hand, the learned counsel for the 2nd respondent

strongly defended the Annexure-A6 order and contended that the

learned Magistrate had passed an order taking into account the law

on the subject. The learned counsel also relied on the decision

reported in Aliyar Kunju v. Subair Khan (1984 KLT 268), CIT

v. Nidish Transport Corporation (1989 2 KLT 501) and also

Sanjay Singh Thakur, Bilaspur v. Sulthan Ahmad, Bilaspur

(1996 KHC 2294.)

6. The subject matter of the alleged theft is Ertiga car bearing

registration No. KL-53H-6543. Admittedly its registration

certificate remains in the name of the petitioner. In other words,

she is shown as the registered owner of the vehicle. Allegation is

that while so, on 16.12.2020 when her husband had parked it at

Paral Centre, using a duplicate key which was given to the 2 nd

respondent at the time of executing an agreement on 18.07.2018 he

was thieving the vehicle and now is claiming right over the same.

The petitioner wanted to convince the Court that such an agreement

did not take place, that transfer of ownership has not taken place;

the vehicle was still in the possession and ownership of the Crl.M.C.No.2555 of 2021

petitioner till it was dishonestly removed by the 2nd respondent on

16.12.2020. Both the parties claimed interim custody of the

vehicle and approached the Court and the learned Magistrate by the

impugned order granted interim custody of the vehicle to the 2nd

respondent. It being a movable motor vehicle, interim custody is to

be given, normally, to the registered owner. But there is no such

irreversible proposition. It being an ordinary chattel the Court

may also consider who is the best person to make use of it. It can

be given to a person though he is not the registered owner if other

circumstances establish ownership. Basing on the admitted fact

that the petitioner continues to be the registered owner of the

vehicle, she has claimed right to be in interim custody of the

vehicle. But the 2nd respondent on the strength of Annexure-R2(a)

agreement dated 18.07.2018 wanted to bring to the notice of the

Court that the vehicle had passed to him immediately on tendering

the advance consideration of Rs. 3,00,000/-. Later the balance

amount of Rs. 4,00,000/- was also paid, merely for the reason that

the ownership remains in the name of the petitioner, she has no

right over the same.

Crl.M.C.No.2555 of 2021

7. After considering rival contentions and materials, I do not

find valid reasons to interfere with the impugned order and to hand

over the vehicle to the petitioner. After the registration of the crime

the 2nd respondent had moved this Court seeking anticipatory bail

which was granted by Annexure-R2(b) order dated 23rd February,

2021. Similarly, Annexure-A5 seizure mahazar produced by the

petitioner indicates that the vehicle was surrendered by the 2 nd

respondent before police following which it was seized by the

police from his possession only. He had also produced a duplicate

key, original registration certificate and also insurance certificate

with given number which was valid for the period from 19.10.2020

to 18.10.2021. Before Court, in support of the claim petition he

also produced the original agreement and that was also one of the

reasons that prompted the learned Magistrate to pass an order in his

favour. In other words, the production of the vehicle by the 2 nd

respondent along with an agreement for sale is valid reason to think

that the 2nd respondent was in rightful possession and enjoyment of

the vehicle.

8. Annexure-R2(a) agreement indicates that it was executed Crl.M.C.No.2555 of 2021

on 18.07.2018. The said agreement was produced before Court

along with the duplicate key. This document indicates that there

was an agreement for sale of the vehicle and the vehicle was

handed over to the 2nd respondent after paying a sum of

Rs.3,00,000/- out of the total consideration of Rs. 7,00,000/; the

balance amount of Rs. 4,00,000/- was agreed to be given within 45

days, on the petitioner closing the bank loan, on getting clearance

from the bank within 45 days. Even though the 2 nd respondent did

not produce any document to say that the balance amount was

tendered, it is claimed that he had paid that amount over a period

of time. Whatever it may be, the production of original agreement

the taking possession of the vehicle from the custody of the 2 nd

respondent etc are circumstances giving an edge to the 2 nd

respondent.

9. It is true that the petitioner had produced certain other

documents like insurance certificate, document proving repairs

made to the car etc. Annexure-A3 requires special mention. It is

shown that the insurance has been renewed in the name of the

petitioner herself for a period of one year from 12.03.2021 to Crl.M.C.No.2555 of 2021

11.03.2022. Here, as rightly pointed out, previous document was

not produced before the insurance authorities at the time of getting

Annexure-A3 policy. At the same time Annexure-A5 seizure

mahazar indicates that an insurance policy was seized from the car

when it was produced by the 2nd respondent which indicates that

the period of insurance was from 19.10.2020 till 18.10.2021. The

period of insurance of the vehicle in Annexure-A5 and A3 cannot

go together. This along with non production of the previous policy

certificate also is something casting aspersion on the claim of he

petitioner.

10. As indicated, even though the registration certificate is

important for a vehicle, that alone will not give any advantage to

the registered owner. That would only indicate that the petitioner is

the registered owner of the vehicle. Registered owner need not be

the defacto owner of the vehicle. In the decision reported in Aliyar

Kunju, quoted supra, the following observations made by this

Court is very material.

"17. "On analysing the provisions of the Act, it can be seen

that it is not the registration certificate of a motor vehicle Crl.M.C.No.2555 of 2021

which confers ownership on the owner. On the other hand, the

registration certificate follows the ownership and not vice versa.

Initially, the application for registration is to be made by or on

behalf of the owner of a vehicle. Therefore, it is only a person

who already has ownership, who can move for registration of

the vehicle in his name. In the case of a transfer also, the

transfer of ownership precedes the transfer of the certificate.

S.31 contemplates a situation where the transferor and the

transferee make reports to the registering authority who

thereupon is to make necessary entries in the registration

certificate and the records concerned, thus, transfer of

registration certificate only succeeds the transfer of ownership

of the vehicle. The transfer of ownership of a vehicle is a

matter governed not by the provisions of the Act but by the

provisions of the Sale of Goods Act. Motor vehicle being a

movable, transfer of ownership takes effect from the date of the

sale and not from any other date. As between the transferor and

the transferee, the sale is complete before the transfer of the

registration certificate. Failure to report to the registering

authority may involve penalty prescribed by S.31 of the Act or

by S.112 of the Act. The fact that failure to report involves

such consequences does not prevent title passing from the Crl.M.C.No.2555 of 2021

transferor to the transferee. Immediately the sale is effected

with the intention to pass title, the registered owner loses his

right. It may, perhaps, be that till the endorsement to that effect

is made in the registration certificate, so far as the registering

authority is concerned, the ostensible owner is the transferor but

the beneficial interest would be with the transferee. The

registration certificate is not a document of title though it is

certainly evidence of ownership.--"

That means, mere fact that the petitioner remains the registered

owner of the vehicle she cannot claim that she is the owner of the

same. As far as motor vehicle is concerned both are different

concepts.

11. I have no doubt that there are incongruities in the

arguments of both parties. It is not explained as to how the

agreement was rescinded, as claimed by the petitioner. Similarly,

there is no satisfactory material to say that the balance amount was

paid by the 2nd respondent 'over a period of time'. If that was

correct, it is not known why the registration was not transferred.

There are many aspects not explained before Court. Here, the

question that troubles the Court is as to who is the better person Crl.M.C.No.2555 of 2021

entitled to keep interim custody of the vehicle. In my assessment,

documents and the circumstances highlighted by the learned

counsel for the 2nd respondent give him an upper hand and there are

reasons to think that he is the better person to keep interim custody

of the vehicle.

I do not find valid reasons to interfere with the order under

challenge and the Criminal Miscellaneous Case is only to be

dismissed. Dismissed.

Sd/-

K. HARIPAL JUDGE

RMV/16/10/2021 Crl.M.C.No.2555 of 2021

APPENDIX OF CRL.MC 2555/2021

PETITIONER ANNEXURE

ANNEXURE A1 TRUE COPY OF FIR NO.1018 OF 2020 OF PERINTHALMANNA POLICE STATION.

ANNEXURE A2 TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 13.5.2015 ISSUED BY ADDL. RA, PERINTHALMANNA.

ANNEXURE A3 TRUE COPY OF THE INSURANCE POLICE DATED 12.3.2021 ISSUED BY THE NATIONAL INSURANCE COMPANY LTD.

ANNEXURE A4 TRUE COPY OF THE INVOICE DATED 10.12.2020 ISSUED BY KVR AUTOCARS PVT.

ANNEXURE A5 TRUE COPY OF THE SEIZURE MAHASER DATED 6.3.2021 PREPARED BY SI, PERINTHALMANNA POLICE STATION.

ANNEXURE A6 CERTIFIED COPY OF THE ORDER OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERINTHALMANNA DATED 30.4.2021 IN CMP NO.470/2021.