S.V.S.Auto Investment v. Veppankuppam Police Station, Vellore District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 01.12.2011CORAMTHE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMYCrl.O.P.No.14661 of 2011S.V.S.Auto Investment, rep. by Managing Partner,T.Sekar, No.12, V.O.C. Street, Gudiyattam Town, Vellore District...PetitionerVs1. The Inspector of Police, Veppankuppam Police Station, Vellore District.

M.Ravi.

D.Suresh Kumar..RespondentsCriminal Original Petition filed under section 482 of CriminalProcedure Code seeking to relax the conditions No.3, 4 and 5 of theorder dated 24.11.2009 passed in Crl.M.P.No.3570 of 2009 by the Judicial Magistrate No.III, Vellore. For Petitioner : Mr.V.M.G.RamakrishnanFor Respondents: Mr.C.Emalias, Govt. Adv. (Crl.side) for R1. Mr.D.Rajagopal, for R2 & R3.

O R D E RThe petitioner has come forward with this petition seeking torelax the conditions No.3, 4 and 5 of the order dated 24.11.2009passed in Crl.M.P.No.3570 of 2009 by the Judicial Magistrate No.III,Vellore.2. The petitioner is carrying on the business of autofinancing under Hire Purchase Agreement Scheme. The respondents 2and 3 had obtained loan as against the purchase of the JCB vehicle https://hcservices.ecourts.gov.in/hcservices/ bearing Registration No.PY01 K 7944 with chassis No. 37395 under HirePurchase Agreement, hypothecating the vehicle and agreeing to pay thehire charges in equal monthly instalments towards the discharge ofthe loan. Since the respondents 2 and 3 were default in payment ofloan amount, the petitioner has filed a suit in O.S.No.4 of 2009before the learned Subordinate Judge, Gudiyatham for return of thevehicle and for recovery of the amount due and payable by therespondents 2 and 3.

Thereafter, on the application filed by thepetitioner, Advocate Commissioner was appointed to seize and handover the vehicle to the petitioner. Pursuant to the warrant ofseizure issued to the Advocate Commissioner, the JCB has been seizedby the Advocate Commissioner. At that juncture, the respondents 2and 3 waylaid and threatened the Advocate Commissioner with direconsequences and taken away forcefully the vehicle. In this regardthe Advocate Commissioner has also lodged a complaint to therespondent police against the respondents 2 and 3. 3. A contempt petition and Crl.O.P. were also filed by thepetitioner and this Court by a common order dated 12.2.2009 directedthe respondent police to register a case and accordingly, therespondent police registered the FIR in Crime No.79 of 2009 and in Contempt Petition No.150 of 2009, the Division Bench of this Courthad found the respondents 2 and 3 guilty of contempt of the Court andpunished them.

Thereafter, the petitioner filed Crl.O.P.16500 of2009 for a direction to the first respondent police to complete theinvestigation in Crime No.79 of 2009 and this Court by order dated1.9.2009 has passed an order directing the first respondent police tofile a final report within a period of three months. Thereafter, thepetitioner filed a petition in Crl.O.P.No.6606 of 2009 for adirection to the respondent police to seize and produce the JCBvehicle in the Judicial Magistrate No.III, Vellore and as per thedirections issued by this Court the vehicle was seized and producedin the Court by the respondent police. Thereafter, the petitionerfiled a petition in Crl.M.P.No.3570 of 2009 seeking for return of thevehicle and the respondents 2 and 3 had also filed a similar petitionfor return of the vehicle. The learned Judicial Magistrate passed anorder directing return of the JCB vehicle to the petitioner oncertain conditions in which the conditions No.3, 4 and 5 are asfollows:-iii.

The petitioner shall produce the propertybefore this Hon'ble Court on the 1st working day of everymonth at 10.00 A.M. until further order.iv. The petitioner should not alter the colour orphysical feature of the vehicle in any manner.v. The petitioner shall deposit the originalR.C.Book of the said vehicle before this Court. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, the Criminal Revision filed by the 2nd respondent was alsodismissed by this Court and thereafter, the vehicle was returned tothe petitioner by order dated 5.1.2009 passed by the JudicialMagistrate. In the mean time, the suit in O.S.No.4 of 2009 wasdecreed on 31.8.2009 in favour of the petitioner. The petitioner hascome forward with this petition to relax the conditions No.3, 4 and 5of the order passed by the Judicial Magistrate No.III, Vellore.

Heard the learned counsel appearing for the petitioner, learned Government Advocate (Crl.side) appearing for the firstrespondent and the learned counsel appearing for the respondents 2and 3 and also perused the materials placed on record.

It appears that at present the petitioner is in possessionof the JCB vehicle. The contention of the learned counsel appearingfor the petitioners is that though the petitioner is in possession ofthe vehicle they are not in a position either to hire or sell it tothird party in view of the conditions imposed in the order dated24.11.2009.

According to the learned counsel appearing for therespondents 2 and 3 they claims to be the owner of the JCB as theyhave made payment as per the decree in O.S.No.4 of 2009 and FullSatisfaction has also been recorded in the suit. It is needless tosay that as per the Hire Purchase Agreement if the respondents aredefault in payment of the entire amount the petitioner is entitled torecover the same for which he is entitled to seize the vehicle. Anyhow, the conditions imposed by the learned Judicial Magistrate isreasonable one and it cannot be altered since the petitioner is onlya financier and the owner of the vehicle is the second respondent. Therefore, the second respondent is directed to settle the amount tothe petitioner so as to enable the petitioner to hand over thevehicle to him. Otherwise, at least he has to make payment ofmonthly hire charges till date with due interest as per the HirePurchase Agreement.

At this juncture, the learned counsel for the petitionerhas relied on a judgment in the case of Ashok Leyland Finance Ltd.vs. State of U.P. and another, reported in 2011 Crl.L.J. 2011. Inthat judgment in a similar circumstances the learned single Judge ofthe Allahabad High Court has held that:- "Keeping in view the above position of law, it is evidentthat when the order impugned was passed by the learnedlower Court, the revisionist was the real owner of thevehicle in question and, therefore, by not releasing thesame to the custody of the revisionist, the learned lowerCourt has committed an illegality. Therefore, the saidorder cannot be allowed to sustain and it should bequashed. " https://hcservices.ecourts.gov.in/hcservices/ Ultimately, the revision filed by the financier has been allowed andthe order impugned has been set aside and the lower Court wasdirected to take back the possession of the vehicle and release it tothe custody of the financier with the assistance of the police ifnecessary.

Even though in the said judgment it has been held that thefinancier is entitled for the custody of the vehicle, I am of theview the said judgment is not applicable to the present facts of thecase for the simple reason that in the Registration Certificate thename of the second respondent has been mentioned as the owner of thevehicle, that will never be changed. The petitioner is only afinancier and his right is only to recover the amount financed by himin terms of the Hire Purchase Agreement and he has no right more thanthat. In case if the vehicle involves in an accident the financieris not having liability for payment of compensation and the secondrespondent being the owner of the vehicle alone is having liabilityfor payment of compensation. Further, in case if the vehicleinvolved in transportation of any contraband, the financier will notbe liable for punishment for the transportation of contraband, whereas the second respondent being the owner of the vehicle alone isliable for punishment for transportation of contraband. Therefore, the petitioner who is the financier cannot be termed as the owner ofthe vehicle.