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V. Parakashan Vs. K.P Pankajakshan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1985CriLJ951
AppellantV. Parakashan
RespondentK.P Pankajakshan and anr.
Cases ReferredAliyar Kunju v. Subair Khan
Excerpt:
.....1983 ker lt 721 :1983 cri lj 1584 in order to contend that he is having a better claim to get custody. transfer of a motor vehicle is just like any other transfer even though procedural formalities may differ. that is not the document of title just like sale deed in the case of a landed property. registration certificate in relation to a motor vehicle is not having any better position than patta in revenue records in relation to landed property. failure to inform the registering authority also' may not affect transfer of ownership even though it may involve other consequences. that is just like the state proceeding against the person in whose name revenue records stand for the purpose of realising dues on the land. failure to report to, the registering authority may involve penalty..........of registration certificate will be treated as owner. but even in cases of transfer of motor vehicles ownership or the beneficial interest passes with transfer when the sale is complete and it need not wait for effecting transfer of registration in the records. that is so with reference to the transferor and the transferee. failure to inform the registering authority also' may not affect transfer of ownership even though it may involve other consequences. it may be true that until registration is transferred, the registering authority may be bound to consider the registered owner as the ostensible owner and he alone may be proceeded against for liabilities consequent on the registration. that is just like the state proceeding against the person in whose name revenue records stand.....
Judgment:
ORDER

S. Padmanabhan, J.

1. Petitioner is the registered owner of Bus No. KLN 97 plying between Tellicherry and Chendayad. Route permit is also in his name. The bus got involved in Crime No. 351 of 1984 of the Tellicherry Police Station. First respondent was the accused therein and the case was registered at the instance of the petitioner. The allegation was that the first respondent drove bus KLN 97 rashly in order to dash it against the petitioner's car in an attempt to murder him. The bus was seized by the police and produced before Court. Both the petitioner and the first respondent applied, Under Section 451 of the Criminal P.C., for interim custody of the bus. The Magistrate rejected both the applications on the ground that the Sessions Judge alone could order release of the bus inasmuch as the case is exclusively triable by the Court of Session. Both of them applied before the Sessions Judge, Tellicherry. The Sessions Judge ordered interim custody of the bus to be given to the first respondent. The petitioner filed Cri.M.C. No. 853/84 before this Court. The order of the Sessions Judge was quashed, holding that the Sessions Judge had no jurisdiction. The Magistrate was directed to consider the applications expeditiously. The Magistrate considered the applications again and ordered interim custody of the bus to be given to the first respondent. The present petition Under Section 482 of the Criminal P.C. X filed by the petitioner is to quash that order. Second respondent is the State of Kerala represented by the Public Prosecutor.

2. Some facts are necessary to appreciate the rival contentions. An order Under Section 451 is only for an interim custody pending enquiry or trial. Final orders after conclusion of the trial will have to be passed Under Section 452. When there are rival claims for interim custody, the Court may have to consider who is better entitled to interim custody.

3. The petitioner is the registered owner of the bus. Route permit also is in his name. First respondent also claims to be the owner of the bus. He says that there was an agreement of sale followed by a sale in his favour on 1-4-1984. He claims to have obtained possession also. The petitioner denies these allegations. But even the petitioner admits that there was an agreement to sell the bus to the first respondent. That was followed by a joint application by the petitioner and the first respondent to the Regional Transport Authority for transferring the permit in favour of the first respondent. This fact is also admitted. The contention of the petitioner is that thereafter the first respondent wriggled out the agreement and therefore, on 22-8-1984, he requested the R.T.A. to keep the matter pending, since there was no concluded contract.

4. There was a communication to the R.T.A. as if it was sent by the petitioner informing that the bus was sold to the first respondent. Basing on that communication, the R.T.A. issued a notification to the effect that the bus KLN 97 is going to be transferred to the first respondent and calling for objections, if any. The stand of the petitioner is that the communication was not sent by him and it is only a manipulation. To be specific, his contention is that another bus KLC 5593 belonging to him was sold to the first respondent. At that time some signed blank papers were entrusted by the petitioner to the first respondent. The petitioner's case is that the communication was sent by the first respondent using one of the blank signed papers entrusted to him as above. Such an entrustment or consequent fraud now alleged were not pleaded by him at any time before. He also says that he became the registered owner of the bus only on 4-5-1984, and therefore, an alleged sale of the bus to the first respondent on 1-4-1984 is next to impossibility.

5. It is clear that the petitioner is not projecting a true case before Court. Evidently, he is playing hide and seek. The fact that he has not approached the Court with clean hands is patent. Being the registered owner and having the route permit, he says that he alone is the person entitled to ply the bus. As a necessary consequence, he says that the first respondent who is not having registration or route permit is not entitled to ply the bus and therefore, he cannot be given custody of the bus.

6. Even the petitioner admits that possession and custody of the bus was with the first respondent. It is also an admitted fact that in Crime No. 351/84 the bus was seized by the police from the possession of the first respondent. How the first respondent came by possession of the bus is not even attempted to be explained by the petitioner. Crime No. 351 of 1984 was admittedly registered at the instance of the petitioner. During the course of arguments, I asked the petitioner's counsel to explain as to how the first respondent came by possession of the bus. The counsel was not able to give me any explanation in that respect and he was only evading. That means the petitioner has no plausible answer as to how the first respondent came by possession of the bus. If the origin of possession was illegal, the petitioner could have specified the same.

7. These circumstances must naturally raise a presumption that the hands of the petitioner are not clean and his contentions are not genuine. If the first respondent came by possession of the bus illegally, the petitioner would not have kept quiet. First respondent cannot be blamed when he contends that Crime No. 351/84, the seizure of the bus and the consequent application for interim custody were all intended as short cuts to get at the bus. It is true that registration of the bus and the route permit were not transferred in favour of the first respondent even though on the basis of the joint application the Regional Transport Officer issued a notification. There is absolutely nothing to substantiate the contention of the petitioner that blank signed papers were given to the first respondent and he used the same for intimating the R.T.A. that the bus was sold to him. First respondent was admittedly able to get possession of the bus. He is also having possession of the registration certificate, certificate of insurance, receipts for payment of tax of the bus up to 31-l2-1984, receipts from J, Gudarmal Kothari, Financiers for payment of the hire-purchase amounts to the tune of more than Rs. 20,000/- and a host of other records, which had essentially to be in the possession of the petitioner, provided ownership, registration, route permit and possession continued with him. The above records were all produced by the first respondent alleging that they were handed over to him at the time when the bus was sold in his favour on 1-4-1984. The only answer of the petitioner is that these papers were in the bus and the first respondent got the records along with the bus. But the petitioner has no case as to how the first respondent came by possession of the bus. There is no case of theft or any other illegal method by which the first respondent came by possession. If so, possession of the bus by the first respondent must be presumed to have started legally. The petitioner is bound to explain the above circumstances, but he has absolutely no explanation to offer.

8. The rival claims will have to be considered in this background. Section 451 enables the Magistrate to, provide for interim custody of such property pending conclusion of enquiry or trial. It is only a temporary arrangement and what is contemplated is only an interim provision to provide custody with a proper person as the Court thinks fit with liability to produce the property back as and when directed by the Court. The maximum duration of the arrangement is only till conclusion of the enquiry or trial. It follows that the arrangement is only temporary and the main object is to protect or preserve the property pending trial. Even if the person entrusted with interim custody is the owner, his possession or custody during the period of entrustment is only as representative of the Court and not in his independent right. He is bound by the terms of entrustment and the bond executed by him in favour of the Court. Any failure to comply with the terms will entail the necessary consequences also. His ownership or right to possession may not operate against his obligation to the Court. The entrustment or custody will not invest him with any preferential right to ownership or even possession. In the eye of law his possession or custody is only that of Court.

9. The arrangement once made is not even final till the conclusion of the inquiry or trial. The Court is having the right to terminate the entrustment, get back the property from him and entrust it to somebody else whom the Court deems fit in appropriate cases even before the conclusion of the inquiry or trial. So much so, the person entrusted with the property may also be entitled to seek termination of the entrustment and surrender the property even before the conclusion of trial. Cases may arise where the person to whom interim custody was ordered may not care to undertake the obligation. In such cases the Court may have to make other arrangements for custody pending trial After giving custody the Court may for reasons think that his custody may not be proper. In such cases the Court can terminate the arrangement and make other arrangements. Pending inquiry or trial more than one such arrangement could be made. The order is only of an interlocutory nature.

10. Even in cases of rival claims for interim custody, the preference made to one person does not settle any right to ownership or possession. Irrespective of defeat in a contest for interim custody, the defeated party can successfully enforce his claim for custody if ultimately he comes out with flying colours. The ultimate consideration is only who is the proper person considered by the Court for entrustment of the property. In doing so, the Court may have considerations like safety of the property, the possibility of getting it back without damage etc. The arrangement is being made by the Court only for preservation of property for being handed over to the person to whom custody has to be ordered Under Section 452 after conclusion of trial or to be dealt with otherwise.

11. What is stated above does not mean that the power of the Court is arbitrary. Even though the power is discretionary it has to be exercised in a judicial manner. It is likely that there may be contest for getting interim custody. The person entitled to ownership or possession may be interested in getting custody to himself in preference to the opponents due to various reasons. He may have the fear that at the hands of somebody else the property is liable to damage or misappropriation of the proceeds. Questions of prestige also may be there. For that reason itself there may be stiff opposition also. Custody to a wrong person may result in irreparable loss to the rightful claimant, Even though the power is discretionary, it is rather of a quasi-civil nature. In the choice of the person to be entrusted with interim custody in such cases the Court may have to take into consideration all the relevant aspects.

12. Normally Courts will be inclined to I prefer the person who was having possession or custody just prior to the custody of Court, But that is 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. In considering the question the Court may be interested in giving importance to right to possession. In the absence of better claim from any other source the Court may prefer the person who had possession. I referred to these aspects because this case both sides laid claim on the basis ownership as well as right to possession.

13. Petitioner is having registration and route permit in his name. First respondent was having possession of the vehicle along with all the papers which are normally expected to be in the possession of the owner or the person who is plying the vehicle. So also he is having to his credit the advantage of other papers and circumstances indicating that the vehicle was sold to him and possession handed over with initiation of steps for transferring registration and route permit in his favour. The only disadvantage for him is that he has not actually become the registered owner or the route permit holder.

14. Counsel for the petitioner relied on the decision in Jacob v. Jayabharat Credit & Investment Co. 1983 Ker LT 721 : 1983 Cri LJ 1584 in order to contend that he is having a better claim to get custody. In that decision, it was held :

Interim custody of a motor vehicle has to be given to the registered owner. It cannot, at any rate, be given to a person who is not the registered owner even if the Police took possession of the same from him. This is because the vehicle will have to be kept idle as only a registered owner can ply the same. If the vehicle cannot be used on the road, no purpose will be served in giving interim custody to anybody.

15. Prima facie it may appear that the above decision will definitely stand in the way of the first respondent. But the fact is not so. What is extracted above is only a portion of the head-note in that decision. A reading of the entire body of the judgment shows that the above head-note is deceptive so far as the principles formulated therein. In that case, the registered owner entered into a hire-purchase agreement with a firm and thereafter relinquished her rights over the vehicle in favour of the firm. But transfer of registration and route permit were not changed. The Court held that in view of the transfer of ownership the firm could get registration transferred and ply the vehicle. In this case also the position is the same. Even though the first respondent was not able to get registration and route permit transferred in his name due to the mala fide tactics adopted by the petitioner, the ownership of the vehicle with possession was transferred and steps for transfer of registration and route permit were also initiated. There is no reason to refuse custody to him for the simple technical reason that on record, he is not the registered owner having route permit. On the strength of his ownership he is entitled to have these things achieved.

16. The position of law advanced by the petitioner that a unilateral act on the part of the registered owner in giving intimation to the registering authority that he transferred the vehicle in favour of a third party by itself will not make the transfer effective cannot and need not be disputed. Transfer of a motor vehicle is just like any other transfer even though procedural formalities may differ. In every transfer there must be transferor or transferors and transferee or transferees. Every transfer involves mutual agreement. Then only it becomes a concluded affair. Transferor alone cannot effect a transfer without the consent or concurrence of the transferee. Under Section 31 of the Motor Vehicles Act the registered owner has to give intimation to the registering authority. The transferee also has to give a similar report along with the report of transfer. That alone will indicate that he agreed to the transfer. Then only transfer of registration will be effected. A unilateral act on the part of the registered owner to avoid tax liability will not be of any avail, Katheena v. R.T.O., Kottayam 1978 Ker. LT. 434 is such a decision and it will not help the petitioner. Further in this case, the steps for transfer of registration and route permit were not unilateral but bilateral on the basis of which the R.T.O. initiated steps also.

17. Different formalities are prescribed for effecting transfers of different items. But whether the procedural formalities are observed or not the real question (is) whether ownership and, if necessary, possession were transferred. If the answer is the affirmative there is a transfer and passing of beneficial interest. Transfer of a motor vehicle is no exception to it. It is a movable and transfer of ownership is governed by the provisions of the Sale of Goods Act and not under the provisions of the Motor Vehicles Act. Even for a motor vehicle it is not the registration certificate that confers title. That is not the document of title just like sale deed in the case of a landed property. Registration certificate in relation to a motor vehicle is not having any better position than patta in revenue records in relation to landed property. Except for government lands patta by itself will not confer title but it will be an item of evidence regarding title. That is the case with registration certificate also. In revenue records the holder of patta will be treated as owner and for the purpose of the Motor Vehicles Act, the holder of registration certificate will be treated as owner. But even in cases of transfer of motor vehicles ownership or the beneficial interest passes with transfer when the sale is complete and it need not wait for effecting transfer of registration in the records. That is so with reference to the transferor and the transferee. Failure to inform the registering authority also' may not affect transfer of ownership even though it may involve other consequences. It may be true that until registration is transferred, the registering authority may be bound to consider the registered owner as the ostensible owner and he alone may be proceeded against for liabilities consequent on the registration. That is just like the State proceeding against the person in whose name revenue records stand for the purpose of realising dues on the land. Even in the case of a motor vehicle, the registered owner will have to be prima facie accepted as the owner in the absence of rival claims and materials to the contrary. That may be the case with an inquiry Under Section 451 of the Cr.P.C. also. But when the title of the registered owner and his possession or right to possession are disputed and rival claims are put forward supported by sufficient materials produced before Court, it is the duty of the Court even in a proceeding Under Section 451 of the Cr.P.C. to consider these contentions and materials in order to decide whether they are capable of superseding the claim based on registration certificate alone.

18. These aspects of the matter were elaborately considered by Bhat, J. after evaluating all relevant decisions in Aliyar Kunju v. Subair Khan 1984 Ker. LT. 268 wherein it was observed :

On analysing the provisions of the Motor Vehicles Act, 1939, it can be seen that it is not the registration-certificate of a motor vehicle which confers ownership on the owner. On' the other hand, the registration certificata ' follows the ownership and not vice versa. The transfer of ownership of a vehicle is a matter governed not by the provisions of the Motor Vehicles Act but by the provisions of the Sale of Goods Act. Motor Vehicle being a movabl 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 Section 31 of the Act or by Section 112 of then Act. The fact that failure to report involves such consequences does not prevent title passing from the 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, Prima facie, the person in whose name the registration certificate stands can be accepted to be the owner of the vehicle, But if there is evidence or material before the Court to show that the person in whose name the certificate stands, has transferred the vehicle, naturally the Court has to hold that the ownership vests with the transferee and not with the person in whose name the certificate stands. Thus, while normally and ordinarily the registration certificate must be taken as reflecting the true position regarding ownership, it is not conclusive and it is always open to interested parties to show that it is not so. If that is not done, the registration certificate has to be Acted upon. What Section 451 of the Code contemplates is that the property is to be made over to proper custody. In deciding the person to whose custody property or vehicle Has to be given, Court would naturally be concerned with finding out who is the person entitled to possession. In order to decide that question, naturally, the registration certificate and other materials having a bearing on the question of entitlement to possession will have to be considered and a proper decision arrived at. In so arriving at a decision, while ordinarily and normally the person in whose name the registration certificate stands can be said to be the proper person to whom custody can be given, that is not a rule of absolute and invariable application and it is open to the opposite party to produce materials before the Court to show that he has a better claim either as a transferee or otherwise.

19. If the above principles are applied to the facts of the present case and the materials produced by the first respondent are considered in the light of the conflicting and mala fide contentions of the petitioner, the conscience of the Court will be clearly satisfied in order to arrive at the conclusion that in spite of registration certificate and route permit standing in the name of the petitioner, first respondent became the beneficial owner with possession transferred in his favour by the petitioner. It is also evident that the criminal complaint as well as the search and seizure were resorted to by him as short cuts to wriggle out of his commitments in favour of the first respondent in an attempt to get possession of the Bus somehow or other.

20. The order in question is an interlocutory one and it is not revisable. The petitioner could have waited till the close of the trial to try his chance. What he was not entitled to achieve by invoking the revisional jurisdiction of this Court cannot be allowed to be achieved by invoking the inherent jurisdiction Under Section 482 of the Cr.P.C. The inherent jurisdiction is intended to be used sparingly in extreme cases of injustice to prevent abuses or to secure the ends of justice. In fact this petition is really an abuse of the process of Court.

21. The learned Magistrate has considered all the relevant aspects as well as the evidence in detail while ordering custody to the first respondent. There is absolutely nothing wrong factually or legally in what he has done.

22. All the actions of the petitioner were actuated by mala fides which is rampant throughout. The petition, therefore, fails and it is hereby dismissed


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