G. Gopalaswamy vs Nagarajan and 2 others

Padmini Jesudurai, J.—The petitioner, against whom and three others the 2nd Respondent has filed charge-sheet, for offences under Ss.420

and 421, I.P.C. on a complaint given by the Respondent, challenges the order passed by the learned Sub-Divisional Judicial Magistrate, Kovilpatti

under S.451, Crl.P.C. granting interim custody of the Metador Van, T.N.I. 8169 concerned in the crime to the 1st Respondent.

Facts necessary for the disposal of the petitioner are:-The above van registered as a tourist taxi originally belonged to Dr. Srinivasan, who is the

fourth accused in the case (who shall hereinafter be so referred). The case of the first respondent is that on 10.6.1986, the petitioner and his two

sons, who are accused 2 and 3 respectively in the case, represented to him that they would make the fourth accused sell the van to the first

respondent for Rs. 43,000. The first respondent believed the above words and acting on that representation, withdrew a sum of Rs. 10,000 from

his account in the Indian Overseas Bank at Sankarankoil on 19.6.1986, pledged the family jewels in the State Bank of India at Sankarankoil for

Rs. 22,000 as per AGL 22/160 and added the cash he had On hand, viz., Rs. 10,500 paid a sum of Rs. 30,500 into his credit in the Indian

Overseas Bank on 19.6.1986, on the same day drew a cheque No. 591741 for Rs. 40,000 in favour of the fourth accused and handed over the

cheque to the petitioner and his two sons, towards the sale price of the van. The cheque was duly encashed by the fourth accused on 21.6.1986.

The first respondent was hoping that van would be handed over to him as also the registration certificate of the vehicle. However, he found that the

vehicle was not handed over to him and no steps were taken, either by the fourth accused or by the petitioner and his two SOBS, to transfer the

registration certificate; instead he found, that the van was being used by the petitioner. When the first Respondent demanded the vehicle from the

Petitioner, the latter attempted to dispose of the vehicle to others. On 16 2.1987 the 1st Respondent gave a complaint about the above facts to the

second respondent, who registered as Crime No. 77 of 1987 of his station against the petitioner, his two sons and the fourth accused for offences

under Ss.420 and 421, I.P.C. He took up investigation and on the same day he seized the van white it was stationed near the bus stand;

presumably while in the possession of the petitioner. After the van was remanded to judicial custody, the first respondent filed Crl.M.P. No. 565 of

1987 and the petitioner filed Crl.M.P. No 562 of 1987 for return of the van. Learned Magistrate passed a common order directing the vehicle to

be handed over to the first respondent pending investigation and trial. The petitioner invokes the inherent powers of this Court under S.482,

Crl.P.C. to have the above order set aside.

Thiru P. Peppin Fernando, Learned Counsel for the petitioner, on facts contended that the allegations regarding false representation, said to

have been made by the petitioner and his two sons to the first respondent were false and that they knew nothing about any cheque having been

passed on to the fourth accused, but that the petitioner was the owner of the vehicle, he having purchased the same from the financiers, the third

respondent herein under an agreement, dated 23.6.1986 and that thereafter on 4th August, 1986 the permit for the vehicle was transferred to his

name and on 8.8.1936 the registration certificate was transferred to his name by the Regional Transport Authority and the Insurance Policy has

also since been transferred to his name. From 18.8.1986 onwards the petitioner has been making periodical payments to the third respondent

towards the loan for the purchase of the vehicle. According to the Learned Counsel, the petitioner was the owner of the vehicle, and since the

vehicle has been seized from him, it should be returned to him.

The claims of the Learned Counsel for the petitioner, for interim custody of the vehicle, could be broadly classified under the following three

heads:--

(i) the vehicle, had been seized from him and therefore the vehicle should be returned to him.

(ii) Since the registration certificate stands in the name of the petitioner and the property being a motor vehicle, which cannot be used without a

registration certificate, the petitioner would be entitled to have the custody of the vehicle, since be alone would be in a position to ply the same;

(iii) even if the facts set forth by the first respondent were true, the vehicle being a movable property, coming within the purview of the sale of

Goods Act, the first respondent had no right over the vehicle, since at best, he could be described as one, who had an agreement of sale and had

paid the sale consideration and the remedy of the first respondent would only be in a civil court and the provisions of the Indian Penal Code would

not be attracted. Learned Counsel also relied upon certain decisions, which I shall refer to later.

Thiru I. Subramaniam, Learned Counsel for the first respondent countered the above contentions as follows:-

(i) The principle that the property should be returned to the person from whom it was seized, would not apply when the property is one with

reference to which the crime had been committed and the accused had got possession of that property, through the commission of the crime.

(ii) Though the registration certificate of a vehicle would entitle that person to have a preferential claim over others, no such claim could be

asserted, when possession of the vehicle, as well as the transfer of the registration certificate, had been obtained through the commission of the

crime, as had been disclosed during investigation in this case.

(iii) At this stage the averments in the F.I.R. and also the result of investigation, as disclosed in the charge sheet filed and the statements of

witnesses recorded during investigation, would decide whether the penal provisions are attracted or not and if they are so attracted, the first

respondent cannot be completed to seek remedy in a civil court, though that remedy may also be open to him.

Thiru M. Venkatachalapathi, Learned Counsel for the third respondent was also heard. He endorsed the averments of the Petitioner regarding

the hire purchase agreement.

Learned Public Prosecutor contended that investigation had disclosed that the vehicle had belonged to the fourth accused, that the petitioner and

his two sons had made a false representation to the first respondent that they would bring about a sale of the vehicle to him from the fourth accused

and the first respondent had handed over the cheque to the petitioner and his two sons, that the cheque had been duly encashed by the fourth

accused that the petitioner, his sons and the fourth accused had acted together and had got transfer of the registration certificate to the name of the

petitioner to whom the vehicle also was handed over by the fourth accused. The petitioner and the co-accused had committed offences under Ss.

420 and 421, I.P.C., with reference to the vehicle. In the above circumstances, learned Public Prosecutor contended that the vehicle should not be

retuned to the petitioner.

The question that arises for consideration is whether the order of the court below could be sustained?

Certain facts, at this stage have to be taken as the basis for deciding the question. The vehicle had originally belonged to the fourth accused.

Investigation has disclosed that on 10th June, 1986 the petitioner and his two SODS had represented to the first respondent that they would bring

about the sale of the vehicle in his favour from the fourth accused for Rs. 40,000. Documentary evidence has also been produced before the

investigating officer that the first respondent had an account in his name in the Indian Overseas Bank at Sankaran Koil, and he had pledged jewels

on 19th June, 1986 in the State Bank of India at Sankarankoil as per AGL 22/160 and had obtained a sum of Rs. 22,000 out of it he had made a

deposit of Rs. 2,000 in his name and on the same day the first respondent has deposited a sum of Rs. 30,500 in his account No. 1435 in the

Indian Overseas Bank and on the same day had drawn a cheque No. 591741 for Rs. 40,000, in favour of the fourth accused. This cheque had

been encashed on 21st June, 1986. The version of the petitioner is that on 23rd June, 1986 he entered into hire purchase agreement with the third

respondent for purchasing this vehicle. It is not the case of the petitioner that he purchased this vehicle from the fourth accused, though he would

admit that the vehicle originally belonged to the fourth accused. On 4th August, 1986, the permit for the vehicle has been transferred to the name of

the petitioner and on 8th August, 1986 the registration certificate has been transferred to his name. This should have been possible, only if the

fourth accused had also signed in the application for transfer of the permit and the registration certificate, to the name of the petitioner. It is

significant that within two days of encashment of the cheque of the first respondent to the fourth accused the petitioner is said to have entered into

hire purchase agreement with the third respondent for purchasing the vehicle. According to the petitioner from 18th August, 1986 onwards he

started making periodical payments to the third respondent towards the loan amount. Investigation has disclosed that the petitioner and his two

sons had made a false representation to the first respondent that he would make the fourth accused to sell the van to him and en the basis of that

representation the first respondent had parted with a sum of Rs. 40,000 in favour of the fourth accused through the petitioner and his two sons and

the cheque bad been encashed, and thereafter the petitioner and his two sons and the fourth accused, acting together, had brought about a transfer

of the registration certificate and permit to the name of the petitioner and the vehicle was also handed over to the petitioner. It, therefore, follows

that the petitioner had come into possession of the vehicle and had also effected transfer of the registration to his name through the commission of

the above crime.

The question would then be whether on the basis of the above facts, the van could be returned to the petitioner on the ground that it had been

seized from him. The general principle that the property should be returned to the person from whom it is seized would normally apply to cases

coming under S. 452, Crl.P.C., when it is found that no offence had been committed with reference to that property and the accused is acquitted

on that ground. In such cases the property must be returned to the accused if it is seized from him. However, the above principle cannot apply to

cases where the property itself has been obtained by the accused through the commission of a crime. Neither the theif nor the receiver would be

entitled to seek interim custody of a property merely on the ground that the property has been recovered from him. The same principle would

apply to the instant ease also.

The second contention of the Learned Counsel for the petitioner that the registration certificate stands in his name as also the permit and,

therefore, the petitioner is the person who is entitled to possession since he alone will be in a position to ply the vehicle, required some

consideration. It is true that motor vehicles are not ordinary chattels. Due importance, therefore has, to be given to the fact that the registration

certificate stands in the name of a particular person. Registration certificate is prima facie proof of ownership and is an essential necessity before

the vehicle can be made use of. Reliance has been placed by the Learned Counsel for the petitioner upon the decision Nandiram Vs. State of

Gujarat and Others, . In that case, process was issued against the accused for an offence under S.406, I.P.C. There was prima facie material to

indicate the commission of the above crime. Registration certificate stood in the name of the complainant. The vehicle, however, was seized from

the accused. The complainant as well as the accused sought return of the vehicle. Reversing the order passed by both the courts below ordering

return of the vehicle to the complainant, the Court observed:

In those circumstances, it would be ordinarily prudent and in consonance with the provisions of the Motor Vehicle Act, to allow such a motor

vehicle to remain in possession of such a person in whose name the certificate of registration stands. Any other person can be taken to be a

person, at the most as making use of it on his behalf or if there is no consent on his part, as against his interest. In cases of this character,

possession by itself would not be a true criterion for the return of the same to a person from whom it has been seized or attached by the police in

relation to a case against him. In my view, the person on whose name the motor vehicle stands with the registration authority, would be entitled to

remain in custody thereof and not any other person, unless be is able to establish his superior title or claim over it.

Learned Counsel for the petitioner also placed reliance upon the decision of a Calcutta High Court in Smt. Mahamaya Dasi Vs. Sanat Kumar

Law and Others, wherein the accused got the vehicle from the complainant on the ground that he needed it for some urgent business undertaking to

return it the following day, failed to return and on the complaint by the owner of the vehicle, a case was registered and the car was seized from the

accused and both the accused as well as the complainant sought return of the vehicle. The High Court, while setting aside the order of the court

below directing return of the vehicle to the accused, observed:--

The party who is the registered owner of the vehicle but has been denied the right of possession and user of the said car would nonetheless be

liable for the penalties accruing, while the car is in the custody of somebody else. It is desirable therefore in such cases that the custody of such a

car should either be with a third party like a Garage upon proper terms and conditions or with the registered owner thereof.

The car was ordered to be returned to the complainant in whose name registration certificate also stood.

The Learned Counsel for the petitioner next relied upon a decision of this Court in Sinni Naidu v. State 1980 M.L.J. Cri. 461 Mad. In that

case the accused took away the bus from the possession of P.W. 6 while it was plying between Pilathu and Dindigul. During investigation the

vehicle was seized from one of the accused. The registration certificate, however, was in the name of P.W. 6. The trial court ordered return of the

vehicle to the accused on the ground that it was seized from him. this Court set aside the above order and directed the vehicle to be returned to

P.W. 6. The primary consideration that weighed with the learned Judge was that though the case had ended in acquittal, there was positive

evidence that the bus, while it was plying between Pilathu and Dindigul was taken away by violence, and the accused were acquitted for want of

satisfactory evidence regarding the identity of the persons who had actually taken away the vehicle. The vehicle had been taken possession of from

P.W. 6 through the commission of a crime. P.W. 6 was therefore entitled to possession. Incidentally the registration certificate also stood in the

name of P.W. 6.

The next decision, referred to by the Learned Counsel was a decision of the Karnataka High Court in Syed Hafeeulla v. State of Karnataka

1987 Cri.L.J. 868 Kar. In that case, the vehicle was stolen from the complainant who was the registered owner. It was later seized from the place

where it had been abandoned. The financier claimed the vehicle on the ground that since there had been default in the payment of instalments they

had re-possessed the vehicle. Negativing the claim of the financier, the High Court ordered return of the vehicle to the complainant on the ground

that being the registered owner he was entitled to the possession of the vehicle and strong evidence, almost conclusive in nature, must be made

available before the registered owner of the vehicle is denied interim custody of the vehicle since he is the prima facie owner entitled to possession

thereof. The Court also went on to observe:

Of course, there may be cases where it may be permissible to entrust interim custody of the vehicle to a person not being a registered owner,

where the person from whose possession the vehicle is seized was in lawful possession

It is seen, therefore, that the court felt it possible to return the vehicle to the registered owner, not only because he was the registered owner, but

also because his possession was lawful possession and such possession should be permitted to continue.

In all the above cases, the Courts had given interim custody of the vehicle to the persons in whose names the registration certificate stood,

primarily because their possession of the vehicle was a lawful possession and had not been obtained through the commission of any crime.

As against the above line of decisions Thiru I. Subramaniam, Learned Counsel appearing for the first respondent, placed reliance upon the

following decisions. The first is the decision of a single Judge of the Karnataka High Court in M/s. Mangharam and Sons v. R.C. Morzaria 1984

Cri.L.J. 1580 Karnataka, wherein the complainant, who was a workshop owner and to whom a truck belonging to the accused was entrusted for

extensive repairs and body building, and which later was removed by the accused, without dealing the repair charges, gave a complaint to the

police, which was registered for an offence under S.378, I.P.C., (Illustration, J.,) and the vehicle was seized from the possession of the accused,

who was registered owner of the vehicle. After the remand of the vehicle to the Court, the complainant as well as the accused sought interim

custody of the vehicle. Even though the accused was the owner of the vehicle and the registration certificate stood in his name, the High Court

ordered return of the vehicle to the complainant, to whom it had been lawfully entrusted, since the removal of the vehicle from the possession of the

complaint, constituted an offence and since the accused from whose custody later the vehicle was seized, bad obtained such custody through the

commission of crime, viz., one under S.378, I.P.C. While, on behalf of the accused, emphasis was laid upon the fact that the property was a

vehicle and the registration certificate stood in his name and the property had been seized from him, the High Court observed:--

Normally, the person from whom the property is seized is entitled to the custody of the same (with or without conditions) but he will not be

entrusted with the property if there is prima facie materials on record showing that he has committed some offence re; the same. In such an event,

the claim, if any, of the other person, or the complainant as in the case may be considered. While examining the rival claims the question as to who

was in lawful possession firstly, at the time of seizure and secondly, earlier, that is to say, earlier to the event which gave cause to that Seizure is

very important. If no prima facie case for any offence is made out against the persons from whom the property is seized, he can be presumed to

have been in lawful possession of the same at the time of seizure and may be entrusted with it.

The next decision relied on by the Learned Counsel for the first respondent is that of the Kerala High Court, in V. Prakashan v. K.P.

Pankajakshan 1985 Cri.LJ. 951 Kar . Where a bus belonging to the complainant, in whose name the registration certificate also stood, pursuant to

an agreement of sale between him and the accused, was handed over to this accused for being plied along a particular route. The allegation was

that while the accused thus had possession of the bus, he drove the bus rashly in order to dash it against the complainant in an attempt to murder

him. A criminal case was registered against the accused on a complaint given by the complainant and the police seized the bus and produced it in

court. The accused, in whose custody the bus was at the time of the occurrence and from whom it was seized, prayed for interim custody of the

vehicls as against the rival claim of the complainant, who was the owner of the bus and in whose name the registration certificate stood. The High

Court ordered the return of the vehicle to the accused, who had initially come by possession of the vehicle in a lawful manner and from whose

possession the vehicle was seized, even though the registration certificate for the bus as well as the permit stood in the name of the complainant,

who was the owner of the vehicle. The above case is a telling illustration for the principle that the question as to whether the initial possession of the

vehicle was obtained through lawful means or whether the initial possession itself was obtained through the commission of a crime, would be a

deciding point in the matter of returns of the vehicle as between rival claimants. Emphasising the above principle, the Court observed:--

Normally Courts will be inclined to prefer the person who was having possession or custody just prior to the custody of Court. But, that it not a

rule of invariable application. Sometimes, the origin of his possession may be illegal just like the possession of a thief or receiver of stolen property.

In such cases the Court may not prefer him.

The same principle has been earlier emphasised by the Bombay High Court in Lakshmichand Rajmal Vs. Gopikisan Balmukund, . The Court

observed:--

Under S.523 (the present S.457) what the Magistrate has to consider is, who is entitled to the possession of property which has been seized by

the Police, Where it is proved that the person from whose possession the property was seized came by it dishonestly, the Magistrate may have to

consider questions of title in order to determine the best right of possession. But, where it appears that the police have seized property from a

person who is not shown to have committed any offence in relation to that property, then the Magistrate can only hold that person is entitled to

possession of the property if any other person claims the property, his remedy is in a civil Court and the burden will be upon him to prove his title.

It follows, therefore, from the above decisions that the powers of the Court under S.451, Crl.P.C. to order interim custody of the property,

though discretionary, as is clear from the words ""as it thinks fit"" in the Section, has yet to be exercised on the basis of the well established judicial

principles. It is true that, regarding properties for the possession and use of which permits or licences are necessary, as in the case of motor

vehicles, fire arms, etc., the general rule underlying the return of properties has to be applied with slight modification. In the case of such properties,

a licence or permit could be taken to reflect the true position regarding ownership of the property. In the case of vehicles, the additional factor that

would be relevant will be the possibility of putting the vehicle to the best use, even during the period of interim custody. The return of the vehicle to

one who has the registration certificate in his name and in the case of public vehicle who has the route permit in his name, would therefore be quite

more advantageous than to return it to one who has no such claim. It is on the basis of these principles that in the decisions referred to by the

Learned Counsel for the petitioner that the vehicles had been ordered to be returned to the person in whose name the registration certificate stood,

and at times to the persons from whom the vehicles were seized. But, all the above considerations are subject to one basic principle that the

possession of that property by the claimant should have been a lawful possession and should not have been acquired through the commission of a

crime. It is not difficult to discern the golden thread that runs through the web of these decisions that interim custody of property should not be

granted to one, who has acquired possession of the same, through the commission of a crime--be he the person from whose it was seized or be he

the holder of the registration certificate or permit, or the person who can make the belt use of the vehicle. One who has acquired possession of a

property through unlawful means and through the commission of an offence ought not to be given, even interim custody, to enable him to enjoy the

benefits of his crime. When such a situation arises considerations like the property being seized from him, the registration certificate being in his

name and he probably being the person who could best use the vehicle, would all lose their significance.

Applying those principles to the facts of the instant case, investigation has shown that the petitioner, along with his two sons, had made a false

representation to the first respondent and on the basis of that representation had made the first respondent part with a sum of Rs. 40,000 in favour

of the co-accused and the petitioner colluding with the co-accused had obtained possession of the vehicle and had also unlawfully obtained transfer

of registration certificate to his name. The possession of the vehicle by the 1st Respondent was not lawful possession. The possession of the vehicle

as well as the transfer of the registration certificate to the name of the first accused had been brought about through the commission of a crime. The

vehicle, therefore, cannot be returned to the petitioner despite the fact that the registration certificate stands in his name and the vehicle has been

seized from him. The order of the trial court refusing to return the vehicle to the petitioner is in conformity with well established principles of law.

The third contention of the Learned Counsel for the petitioner that the remedy open to the first respondent is only a civil forum is untenable. It

is settled law that if the penal provisions are attracted, prosecution would still lie, even though an alternate civil remedy is available to the parties.

In the result, the petition is dismissed.