M/s.Citifinancial Consumer Finance India Ltd. v. The Inspector of Police, Central Crime Branch, Team-V, Egmore, Chennai-8

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 06.07.2012CoramTHE HON'BLE MR.JUSTICE C.S.KARNANCrl.R.C.No.1710 of 2007 &M.P.No.1 of 2007M/s.Citifinancial Consumer Finance India Ltd.,17, Radhakrishnan Salai, Mylapore,Chennai-4.Represented by its Assistant Manager andPower of Attorney Agent Mr.P.M.Saravanan...PetitionerVs.The Inspector of Police,Central Crime Branch, Team-V,Egmore, Chennai-8....RespondentPrayer :-Criminal Revision is filed under Section 397 r/w 401 ofCr.P.C., to set-aside the order passed in M.P.No.1890 of 2007, dated04.10.2007 passed by learned Additional Chief MetropolitanMagistrate, Egmore, Chennai-8 and consequently allowing thepetitioner to sell and dispose the car bearing No.TN-04-M-6855. For Petitioner : No appearanceFor Respondent : Mr.M.Mohammed Riyaz Government AdvocateORDERThe petitioner / petitioner / financier has preferred thepresent revision against the order passed in M.P.No.1890 of 2007, onthe file of learned Additional Chief Metropolitan Magistrate, Egmore,Chennai-8, in X.Cr.No.508 of 2005, on the file of the respondent /police.2. The short facts of the case are as follows:-The defacto complainant is a finance company dealing withcar and two wheeler loans and during its course of business, theaccused had availed a car loan and had entered into an agreement cumhypothecation agreement dated 13.10.2004 and availed loan ofRs.6,14,000/- for purchase of 'Honda City', agreeing and undertakingto repay the above loan amount in monthly installments at Rs.19,550/-per month commencing from 05.11.2004 and ending on 05.11.2007.Necessary endorsement was made in the registration certificate of the https://hcservices.ecourts.gov.in/hcservices/ above car. While so, the car was involved in a criminal case and thesame was seized by the respondent police for an alleged offence underSection 420 of IPC and the police registered the case against theaccused in Crime No.508 of 2005. On petition filed on behalf ofdefacto complainant in Cr.M.P.No.4021 of 2005, dated 30.11.2005 thecar had been handed over to the petitioner / defacto complainant forsafe custody. One of the conditions stipulated in the above order wasthat the petitioner should not alienate the vehicle.3. At this juncture, the petitioner herein has filed thepetition in Cr.M.P.No.1890 of 2007 in Cr.No.508 of 2005, underSection 459 of Cr.P.C. stating that the accused had committed defaultin payment of monthly EMI towards the above loan and that the accusedis highly in debt to various creditors including the petitioner. Itwas submitted that the petitioner, as financier, is owner of the carand the accused has absconded and not repaid the loan. It wassubmitted that in the RC, insurance policy and tax receipts, the nameof the petitioner has been shown as the financier. It was submittedthat for the past one year, the petitioner has been plying the caronly once in a month and the same may cause damage to the engine, ifthe car is kept idle, without moving. Hence, the petitioner hassubmitted that it is necessary to order sale of the car by thepetitioner, who is the real owner, and to recover his dues pendingdisposal of the case. Hence, it was prayed to the Court to order saleof the car bearing No.TN-04-M-6855, deposited in Cr.No.508 of 2005 as"B"Property, on the file of trial Court, pending disposal of theabove case. 4. The respondent / Inspector of Police in his counter hassubmitted that since the accused had used the car for going to bankto encash the demand drafts, this property will be required for beingmarked as material object during trial.5. The learned Additional Chief Metropolitan Magistrate,Egmore, Chennai-8, after hearing the arguments of the counsels and onperusing the petition observed that the petitioner / defactocomplainant had been permitted to have custody of the car based onthe petition filed by him in Cr.M.P.No.4021 of 2005, dated 30.11.2005and that one of the conditions stipulated in the above order was thatthe petitioner should not alienate the vehicle. The learnedMagistrate further observed that the investigation is pending andalso opined that the contentions of the respondent that the car willbe required for being marked as material object on the ground thatthe accused had used this car for the commission of offence, cannotbe brushed aside. The learned Magistrate further observed that thepetition filed under Section 459 of Cr.PC., is not maintainable asthe provisions of Section 459 Cr.P.C. relates only to sale ofperishable property. Hence, the learned Magistrate held that thepetitioner is not entitled to get relief as prayed for and dismissedthe petition.6. Aggrieved by the dismissal of his petition, thepetitioner / financier has preferred the present revision. https://hcservices.ecourts.gov.in/hcservices/

7. The learned counsel for the revision petitioner hascontended in his revision that the learned trial Court Judge erred indismissing the above petition filed under Section 459 of Cr.P.C. asnot maintainable as the provision of Section 459 Cr.P.C. are relatingto sale of perishable property without considering the fact that thecar is also a perishable one. It was contended that the learned trialCourt Judge failed to note that the petitioner had invested a hugesum of money by financing for the above property and also failed tonote that if the car is kept idly in the custody of the petitioner,it would cause damage for non-usage. It was also contended that thelearned trial Court Judge failed to note that till date, theinvestigation in the above matter is not over and the charge sheetalso not been filed and the accused had not been arrested. It wascontended that the learned trial Court Judge failed to note that thepetitioner is entitled to sell the hire purchase vehicle when thesame is not a material object in a criminal case. It was alsocontended that the trial Court Judge failed to note the recent orderspassed by this Court in Crl.R.C.No.496 of 2007, in a similar case,wherein the learned Judge had permitted the financier to sell thevehicle. Hence, it was prayed to set-aside the order of the trialCourt and consequently, allow the petitioner to sell and dispose thecar bearing registration No.TN-04-M-6855.8. The highly competent Government Advocate, Mr.M.MohammedRiyaz, appearing for the respondent-Police submits that the custodyof the said car had already been handed over to to the petitioner.Further, one of the conditions imposed while passing the said orderwas not to alienate the vehicle. Further, the prosecution requiresthe said car to be produced as material object during trial. Hence,the learned Government Advocate prays to dismiss the petition. 9. On considering the facts and circumstances of the caseand on considering the grounds raised by the learned counsel for thepetitioner and arguments advanced by the learned counsel for theState, this Court does not find any merits in the above revision toallow it. It is further seen that the custody of the said car is withthe petitioner and it has been handed over to him on a specificcondition that he should not alienate the vehicle. When such is thecase, this Court is not inclined to permit the petitioner to sell thevehicle. 10. In the result, the above revision is dismissed.Consequently, the order passed in M.P.No.1890 of 2007, on the file oflearned Additional Chief Metropolitan Magistrate, Egmore, Chennai-8,dated 04.10.2007 is confirmed. Consequently, connected miscellaneouspetition is closed. Sd/-Assistant Registrar(CO)Dated: 16.07.2014//True Copy//Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ r n sTo1.The Inspector of Police,Central Crime Branch Team V,Egmore, Chennai.2.The Additional Chief Metropolitan Magistrate, Egmore, Chennai-8. 3.The Chief Metropolitan Magistrate,Egmore, Chennai.Crl.R.C.No.1710 of 2007 &M.P.No.1 of 2007RV (CO)PSI (16.07.2014)