State Bank of India vs State of Kerala

A. Hariprasad, J.—Petition filed under Section 482 Cr.P.C. Petitioner, the State Bank of India, aggrieved by the common order passed by the Judicial First Class Magistrate Court-I, Ernakulam in C.M.P. Nos. 2243/2011 and 2354/2011 in Crime No. 306/2010 of Palarivattom police station has come up before this court.

Heard the learned counsel for the petitioner, learned counsel for the second respondent and the learned Public Prosecutor.

Learned Magistrate passed a common order under Section 451 Cr.P.C. granting interim custody of a Skoda Octavia Ryder Diesel Car involved in the case to the second respondent. Learned counsel for the petitioner submitted that there was a big fraud committed on the bank by the accused in the case. According to the bank, they are entitled to get interim custody of the vehicle under Section 451 Cr.P.C.

Facts in brief are as follows:

One Arun R. Nair applied for a car loan to the State Bank of India, Ernakulam RACPC branch for a sum of Rs. 10,00,000/- for purchasing a Skoda Octavia Ryder Diesel Car from M/s. Marikar Engineers Pvt. Ltd. He produced the proforma invoice dated 23-01-2008 for Rs. 12,43,659/- before the bank. After executing necessary documents, the bank issued a cheque for Rs. 10,00,000/- in favour of the dealer of the car. The borrower took delivery of the car, but he fraudulently got it registered in the name of one Anoop Narayanan. Subsequently, the vehicle was transferred to one Shakeela. From Shakeela the second respondent purchased the vehicle on 03-12-2009. Later, the bank found out that the name in the R.C. book as Anoop Narayanan is a fictitious name. Therefore, they initiated legal proceedings against the borrowers. Palarivattom police registered the crime and started investigation. The vehicle was seized in the course of investigation and it was produced before the trial court. Learned Magistrate considering the fact that the vehicle if allowed to remain to the vagaries of weather may get damaged and its value will be reduced. Therefore, in the wake of rival claims, the court below found that the second respondent is a bona fide purchaser of vehicle. It is an admitted fact that the second respondent is not an accused in the case. Considering all these aspects, the court below allowed the second respondent to keep interim custody of the vehicle under Section 451 Cr.P.C. with specific conditions.

Learned counsel for the petitioner bank submitted that the borrowers have not furnished any security other than the car. If the car is not recovered by the bank, the bank will suffer loss on account of deficiency of security. It is also submitted that the borrowers and the guarantors have executed personal guarantee forms for repaying the loan. In the absence of any allegation by the investigating agency or even by the petitioner bank that the second respondent is also a party colluded with the borrower, I find no reason to hold that the common order passed by the learned Magistrate is legally incorrect. He has considered all the relevant issues while granting interim custody of the vehicle to the second respondent, R.C. owner of the vehicle. Further it is to be observed that while passing an order under Section 451 Cr.P.C., the criminal court is not adjudicating the title of the movable property involved therein. The bank is free to take appropriate action to secure the money advanced. This order will not in any way affect the right of the bank to claim title over the vehicle, if it could establish the same in appropriate proceedings. Learned counsel for the petitioner submitted that there may be a direction to the investigating agency to expedite the matter as the stake involved is very high. Considering the submissions at the bar, following directions are issued.

In the result, Crl. M.C. is dismissed finding that there is no illegality in the common order passed by the learned Magistrate. However, I make it clear that the investigating agency shall conduct and complete the investigation as expeditiously as possible and file the final report.

All pending interlocutory applications will stand dismissed.