ALIYAR KUNJU v. SUBAIR KHAN — 1983 DIGILAW 337 (KER)

Judgment :- 1. Revision Petitioner in the Crl. R. P. is the accused in C. C. 266 of 1983 on the file of the Additional Judicial Magistrate of the First Class, Trivandrum. He is the respondent in Crl. M.C. 752 of 1983. The complainant in the case is the first respondent in the Crl. R. P. and the petitioner in the Crl.M.C. They will be referred to as accused and the complainant respectively in this order. 2. The complainant filed a private complaint before the Magistrate against the accused alleging that he is the owner of lorry bearing registration No. KER. 8232, that on 15-4-1983, the accused met him and negotiated the sale of the lorry, that the lorry was subject of a hire purchase agreement in regard to which an amount of Rs. 60,800/- was due, that the respondent agreed to purchase the lorry for a price of Rs. 1,25,000/- inclusive of the hire purchase dues and paid advance of Rs.10,000/- and agreed to pay the balance of Rs. 54,200/- to the complainant in three months. It was further alleged that on 25-8-1983 at 8 p. m., accused met the complainant at his house and wanted to take the lorry out for the purpose of testing and accordingly the complainant allowed the accused to take away the lorry but the accused did not return the lorry and refused to return the same. An application was made for the issue of a search warrant and warrant was issued and the lorry was seized by the police from the custody of the accused. Thereupon, the accused filed Crl M. P. 2162 of 1983 for release of the lorry to him on bond, evidently under S.451 of the Code of Criminal Procedure. The application was opposed by the complainant on the basis that he, as the person in whose name the registration certificate stands, is entitled to custody and the accused who has no right with reference to the lorry, is not entitled to interim custody. The learned Magistrate passed an order directing release of the lorry to the accused on his executing a bond for Rs. one lakh with two solvent sureties in the like amount. 3. Challenging this order, the complainant filed Crl.R.P. No. 158 of 1983 in the Sessions Court, Trivandrum. The learned Magistrate passed an order directing release of the lorry to the accused on his executing a bond for Rs. one lakh with two solvent sureties in the like amount. 3. Challenging this order, the complainant filed Crl.R.P. No. 158 of 1983 in the Sessions Court, Trivandrum. It was contended before the Sessions Court that the order being interlocutory in nature, is not revisable in view of the bar under S.397(2) of the Code. The Sessions Court overruled this contention, went into the merits of the case and remanded the matter for fresh disposal in accordance with law. This order is challenged by the accused in Crl.R.P.418 of 1983. Not being certain about the jurisdiction of the Sessions Court to interfere in revision with an order of the nature passed by the Magistrate, the complainant has filed, by way of abundant caution, the Crl.M.C, under S.482 of the Code to quash the order of the Magistrate. The Crl. R P. and the M.C. have been heard together. 4. The order passed by the learned Magistrate under S.451 of the Code of Criminal Procedure was an order between the parties to the criminal case. There could, therefore, be no doubt that the order was interlocutory in nature attracting the bar under S.397 (2) of the Code and was not revisable. This position had been clarified in the two decisions of this Court namely, Vasu v. Unnikrishnan (1983 KLT. 310) and also Jacob v. Jayabarath Credit and Investment Company (1983 KLT. 721). The view taken by the Sessions Court that the order was not interlocutory in nature but of an intermediary type is clearly wrong. The Sessions Court could not have revised the order of the learned Magistrate. For this reason alone, the order of the Sessions Court in Crl. R. P. 158 of 1983 impugned in Crl. R. P. 418 of 1983 of this Court has to be set aside and I do so. 5. What survives is the challenge of the order of disposal passed by the Magistrate under S.482 of the Code in the Crl. M. C. There is no doubt that the registration certificate of the lorry stands in the name of the complainant and the lorry was found in the possession of the accused. 5. What survives is the challenge of the order of disposal passed by the Magistrate under S.482 of the Code in the Crl. M. C. There is no doubt that the registration certificate of the lorry stands in the name of the complainant and the lorry was found in the possession of the accused. According to the complainant, the law is that custody under S.451 of the Code could be given only to the registered owner and could not be given to any other person under any circumstances. Therefore, it is contended that the order of the learned Magistrate is vitiated and deserves to be interfered with under S.482 of the Code. In order to support this stand, learned counsel for the complainant has placed reliance on certain provisions of the Motor Vehicles Act, 1939 (for short 'the Act') and the decisions of this Court in Sahadevan v. Sudhakaran (1970 KLT. 782), Kamaluddin v. Abdul Salim (1971 KLT. 927) and Jacob v. Jayabarath Credit and Investment Company (1983 KLT. 721). 6. Sahadevan's case related to a case of rash and negligent driving, in the course of investigation of which the motorcycle was seized from the scene of occurrence and not from any person and entrusted to the first respondent and another as per a bond. At the conclusion of the trial, the accused was acquitted. The question arose as to what should be the nature of the order of disposal under S.517 of the Code of 1898, corresponding to S.452 of the Code of 1973. E. K. Moidu, J. observed that normally in the case of acquittal, the property must be returned to the person from whom it was seized but the Magistrate has discretion to return it either to the complainant or the accused, depending on the facts and circumstances of each case. After referring to decisions of several courts relating to motor vehicles, the court observed that the court is bound to go into the question of ownership to decide who is entitled to possession. After referring to decisions of several courts relating to motor vehicles, the court observed that the court is bound to go into the question of ownership to decide who is entitled to possession. Taking note of the circumstances that the motor cycle was seized from the scene and not from the first respondent and the first respondent came into the picture only later claiming to be a pledgee from a third party and not from the revision petitioner and the fact that the revision petitioner produced the registration certificate standing in his name as well as the insurance certificate and the tax receipts, it was held that the vehicle should have been returned to the revision petitioner, that is, the person in whose name registration certificate stood. It may be noted that the court did not lay down a general principle that in all cases the holder of the registration certificate alone is entitled to possession and entitled to get the vehicle from court. In that case, the court, analysing the facts and circumstances of the case, held that the revision petitioner who was the registered owner had a better claim. 7. Kamaluddin's case arose under S.516A of the Code of 1898 which corresponds to S.451 of the present Code. The case related to motor vehicle. The person in whose name the registration certificate stood disclaimed right to the vehicle and set up a case that she sold it to the sister of the first respondent who in turn sold it to the first respondent and both of them entrusted the car to the revision petitioner for his use and the revision petitioner did not return the car. The car was seized during investigation from the workshop where the revision petitioner had kept it for repairs. The dispute was between the revision petitioner and the first respondent. The registered owner disclaimed right to the vehicle and supported the claim of the revision petitioner. Charge-sheet had not yet been filed by the police and the matter was pending investigation. The court observed that in the absence of anything to show title, the vehicle should be ordered to be delivered to the person in whose possession it was at the the time of seizure and the matter was remanded for fresh consideration. This decision is not helpful in as much as the registered owner of the vehicle disclaimed any right. 8. This decision is not helpful in as much as the registered owner of the vehicle disclaimed any right. 8. In Jacob's case, the police registered a case for theft of a bus on the complaint of the revision petitioner and the bus was seized during investigation. There was a hire purchase transaction in regard to the bus. The financier had obtained a letter of relinquishment from the registered owner. The bus was actually seized from the custody of yet another person. The complainant, the financier as well as the custodian from whom it was seized filed petitions claiming interim custody. Police reported that they intended to refer the case and the Magistrate ordered interim custody to the person from whom the bus was seized. The court observed that the custodian from whom it was seized was not the registered owner and therefore it was not proper to give interim custody to him. The court relied on certain observations of the Karnataka High Court in U. Kariappa v. P. Sreekantaiah (1980 Crl. L. J. 422) and of the Gujarat High Court in Nandiram v. State of Gujarat (AIR. 1967 Gujarat 80). 9. In U. Kariappa's case, the Karnataka High Court observed as follows in Para.8 and 10: "While making an order for interim custody of a motor-vehicle, what the criminal court has to keep in view is who would be the best person to make use of the vehicle pending conclusion of the enquiry and trial, because if a mechanically propelled vehicle is kept idle for a long time not only there are chances of it being spoiled, but the person who is deprived of that possession of the vehicle, either by theft or otherwise is likely to be put to great loss in his business. Therefore, it is clear from the provisions of the Motor Vehicles Act that registration certificate is essential before the motor-vehicle is used on the road. Therefore, it follows that the person in whose favour the certificate of registration is issued or stands, ordinarily and obviously is the proper person for the interim custody of the vehicle so seized and produced before the criminal court. (para. Therefore, it follows that the person in whose favour the certificate of registration is issued or stands, ordinarily and obviously is the proper person for the interim custody of the vehicle so seized and produced before the criminal court. (para. 8) Here, in the case at hand, merely because the vehicle is seized from the possession of the first respondent will not be proper criterion for the entrustment of the interim custody of the vehicle to him pending conclusion of enquiry or trial. The Criminal Court while making an order of interim custody, as provided under S.451 Crl. p.C. has to enquire first of all, whether the person who claims for the interim custody of the vehicle seized, is a registered owner entitled to use the vehicle as required under the provisions of the Motor Vehicles Act. If he is such a person, then ordinarily, he is a right and correct person to whom the custody of the vehicle has to be entrusted." (para. 10) (Emphasis supplied) In Nandiram's case, the High Court of Gujarat observed after referring to the provisions of the Act: "It follows from the provisions referred to here above that the registration certificate is an essential necessity before any such motor vehicle can be made use of and that any person in whose favour this certificate of registration is issued, obviously would be the owner thereof. In case of any transfer of ownership in respect of that motor vehicle, the procedure is contemplated under S.31 of the Act and till any such transfer of ownership is entered in the certificate of registration, one has to take it that the person in whose favour such a certificate of registration is issued by the motor transport authorities is the owner and that way entitled to remain in possession thereof. Non-compliance of certain provisions of the Motor Vehicles Act sometimes makes the owner responsible. In those circumstances. Non-compliance of certain provisions of the Motor Vehicles Act sometimes makes the owner responsible. In those circumstances. it would be ordinarily prudent and in consonance with the provisions of the Motor Vehicles Act to allow such a motor vehicle to remain in possession of such a person in whose name the certificate of registration stands."(Emphasis supplied) In my view, the person on whose name the motor vehicle stands with the registering authority, would be entitled to remain in custody thereof and not any other person, unless he is able to establish his Superior title or claim over it." (Emphasis supplied) 10. After quoting these passages from these two decisions, Narendran J. in Jacob's case considered the facts of the case. The registered owner had given a letter of relinquishment to the financier. This court held that in the circumstances of the case, it was not proper to give interim custody to a person other than the registered owner. However, on the submission that the police referred the case, the court directed a fresh order to be passed under S.452 of the Code. 11. On a consideration of the above decisions, it cannot be said that this court or the other High Courts in those decisions purported to lay down a general rule of invariable application, applicable to all cases irrespective of the facts and circumstances of the cases. I have already emphasised certain portions of the passages quoted above and those portions indicate that there could be contingencies where a person other than the registered owner could be given interim custody under S.451 of the Code. This is consistent with the provisions of the Act also. 12. Chapter III of the Act relates to registration of motor vehicles. S.22 relates to necessity for registration. S 24 lays down how registration is to be made. The application for registration must be by or on behalf of the owner of a motor vehicle and shall be in the prescribed form and shall be accompanied by the prescribed fee. The registering authority shall issue to the owner of the motor vehicle registered by it a certificate of registration in the prescribed form and shall enter in a record to be kept by it particulars of such certificate. A distinctive mark shall be assigned to the vehicle as indicated. S.25 relates to temporary registration. The registering authority shall issue to the owner of the motor vehicle registered by it a certificate of registration in the prescribed form and shall enter in a record to be kept by it particulars of such certificate. A distinctive mark shall be assigned to the vehicle as indicated. S.25 relates to temporary registration. It contemplates an application by the owner of a motor vehicle to have the vehicle temporarily registered in the prescribed manner and the issue of registration. S.31 relates to transfer of ownership. It says that: where the ownership of any motor vehicle registered under this Chapter is transferred, the transferor shall within the time prescribed report the fact of transfer to the registering authority concerned and send a copy of the report to the transferee and within the time limited forward to the registering authority concerned a no objection certificate under S.29A or in its" absence a receipt obtained under S.29A (2) or a postal acknowledgement received by the transferor if he has sent an application by registered post acknowledgement due to the registering authority together with a declaration that he has not received any communication from such authority refusing to grant such certificate etc. The section also requires the transferee, within the time limited to report the transfer to the registering authority concerned and to forward the certificate of registration to the authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration. Under sub-sec. (1A) if the transferor or the transferee fails to report to the registering authority the fact of transfer within the time limited, the registering authority may require the transferor or, as the case may be, the transferee, to pay in lieu of any action that may be taken against the transferor or the transferee under S.112, such amount not exceeding one hundred rupees as may be prescribed under sub-s. (1C) S.112 makes it penal to contravene any provision of the Act or of any rule made under the Act and also prescribes fine which may be leviable on conviction. 13. I shall now advert to the precedents where these provisions arose for consideration. In Muthuswamy Gounter v. Tulasi Ammal (1970 ACJ. 13. I shall now advert to the precedents where these provisions arose for consideration. In Muthuswamy Gounter v. Tulasi Ammal (1970 ACJ. 18 Mad.), the High Court of Madras held that S.31 of the Act states that contractual transfer of ownership of a vehicle has to precede the application for transfer of ownership, but as between the parties to the transfer the sale gets completed before the transfer of the R. C. and though failure to report the transfer may involve penalties under the law the passing of property to the transferee is not thereby prevented. All that is required under the Act is that the transfer has to be notified; otherwise penal consequences follow. But that does not make the transfer invalid. The moment the sale of the vehicle is effected intending to pass the property therein forthwith vis-a-vis the vehicle, the registered owner ceases to have any proprietary interest. It may be that, till there is an endorsement on the registration certificate, ostensibly the transferor is the owner. But the beneficial interest, including the right to possession, vests in the transferee. The R. C. of a vehicle is not a document of title but is evidence of title and its absence at the time of sale should put a purchaser on enquiry. 14. The above view has been followed by the High Court of Karnataka in N. Y. Khanaji v. Syndicate Bank, Ankola (AIR. 1979 Kant. 182.) 15. In Oriental Fire and General Insurance Company Limited v. Smt. Vimal Rai (1972 ACJ. 314-AIR. 1973 Delhi 115) a Division Bench of the Delhi High Court observed: "Our conclusion is that the certificate of registration is an important piece of evidence to ostensibly show the owner of the vehicle who is liable to pay taxes and to perform duties and obligations under the Act. But the endorsement of transfer on the certificate is not a condition precedent and its absence does not make an otherwise valid sale as illegal or ineffective." This view has been followed by the Rajasthan High Court in M/s. Automobile Transport Private Ltd. v. Dewalal (1977 ACJ. 150). The same view has been again reiterated by the Madras High Court in South India Insurance Company Limited v. Lakshmi (1971 ACJ. 150). The same view has been again reiterated by the Madras High Court in South India Insurance Company Limited v. Lakshmi (1971 ACJ. 122), by the Punjab and Haryana High Court in Phul Bus Service v. Financial Commissioner Taxation, Punjab (1968 ACJ.57) and by the Orissa High Court in P.K. Panda v. Premlatha Choudry and others (AIR. 1980 Orissa 102). 16. I may now turn to a decision of the Bombay High Court in Kishan Pandurang Kagde v. Balde Singh Gian Singh and others (ILR.1977 Bom.1310) which related to a case of theft of a lorry. The Magistrate ordered interim custody under S.451 to the first accused and the complainant challenged the same before the High Court. First accused who was the owner of the vehicle agreed' to sell the lorry to the complainant for Rs. 44,000/- out of which 31,000 rupees was paid on 31-12-1974 and the balance was to be paid on 20-1-1975 and thereafter the registration was agreed to be transferred. The complainant claimed that the first accused put him in possession of the lorry. The transaction could not be completed and the complainant alleged that on 27-1-1975 the first accused and his driver the second accused committed theft of the lorry. The lorry was seized during investigation. The transfer documents had been signed by both the parties, though not presented to the registering authority. A Division Bench of the Bombay High Court, after adverting to the provisions in S.31 of the Act observed as follows: "The language of the section itself thus makes it clear that it is only after the ownership of the vehicle is transferred that a report has to be made to the registering authority to effect a change in the name of the owner in the certificate of registration where the name of the previous owner has been recorded. The transfer of registration thus follows the transfer of ownership and not vice versa. In other words, the transfer of ownership does not flow from the transfer of registration. The transfer of ownership does not, depend upon the transfer of registration. The object underlying the provisions in S.31 is that the registering authority must have the name of the proper person who is liable to pay taxes. In other words, the transfer of ownership does not flow from the transfer of registration. The transfer of ownership does not, depend upon the transfer of registration. The object underlying the provisions in S.31 is that the registering authority must have the name of the proper person who is liable to pay taxes. Also, perhaps, in the case of an accident, the authorities must have the name of the proper person upon whom liability can be fixed or damages or compensation resulting from the accident. There is no provision in the Motor Vehicles Act which deals with the transfer of ownership of the vehicle which, like any movable property is governed by the Sale of Goods Act. The provision in S.31 of the Motor Vehicles Act is only to the effect that after the change of ownership of the vehicle has taken place, corresponding change should be recorded in the certificate of registration, that is, in place of the previous owner the name of the new owner should be substituted. The transfer of ownership thus takes place from the date of sale and not from the date on which the name of the transferee is received in the certificate of registration". After considering the documents produced by the person who claimed to have purchased the lorry, the High Court observed: "As, prima facie, ownership and possession had both passed in favour of the complainant, the proper order to be made was to give custody of the vehicle to the complainant pending conclusion of the trial. It was not a proper order to give custody of the vehicle to Accused No. 1. especially when the allegation was that he had committed theft of the vehicle after selling and giving possession of the vehicle to the complainant." 17. On analysing the provisions of the Act, 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 certificate follows the ownership and not vice versa. Initially, the application for registration is to be made by or on behalf of the owner of a vehicle. Therefore, it is only a person who already has ownership, who can move for registration of the vehicle in his name. In the case of a transfer also, the transfer of ownership precedes the transfer of the certificate. Initially, the application for registration is to be made by or on behalf of the owner of a vehicle. Therefore, it is only a person who already has ownership, who can move for registration of the vehicle in his name. In the case of a transfer also, the transfer of ownership precedes the transfer of the certificate. S.31 contemplates a situation where the transferor and the transferee make reports to the registering authority who thereupon is to make necessary entries in the registration certificate and the records concerned, Thus, transfer of registration certificate only succeeds the transfer of ownership of the vehicle. The transfer of ownership of a vehicle is a matter governed not by the provisions of the Act but by the provisions of the Sale of Goods Act. Motor vehicle being a movable, 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 S.31 of the Act or by S.112 of the 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. The decisions already referred to support this conclusion. 18. Ownership and registration of a vehicle with the appropriate authority are different matters, though in the normal course one should lead to the other. The scheme of the Act requires that the registration certificate should stand in the name of the owner of the vehicle. That is why the Act requires initially an application to be submitted by or on behalf of the owner and every subsequent transfer of ownership to be reported to the registering authority. This is with a view to ensure that the registration certificate reflects the ownership of the vehicle. That is why the Act requires initially an application to be submitted by or on behalf of the owner and every subsequent transfer of ownership to be reported to the registering authority. This is with a view to ensure that the registration certificate reflects the ownership of the vehicle. Every owner of a vehicle has certain rights as also certain duties vis-a-vis the vehicle. The registration certificate is therefore intended to be a document to reflect the position regarding ownership. Thus, the registration certificate and the particulars contained therein provide an important and valuable evidence of ownership and cannot be lightly brushed aside. At the same time, it is not a document of title. There may be various situations where at a particular time or during a particular period, the registration certificate may not reflect the real ownership of the vehicle. When there is a transfer of ownership of the vehicle, till the transfer is reported to the registering authority and till the registering authority brings about the necessary entries in the registration certificate, certainly the registration certificate will only mention the previous owner as the owner. This is a situation where the registration certificate does not reflect the true ownership of the vehicle. Of course, once the necessary entires are made, it would reflect the true ownership of the vehicle. Thus, while it is true that ordinarily and normally, the person in whose name the registration certificate stands could be accepted as the person in whom the ownership of the vehicle vests, there may be situations where the person in whose name the certificate stands may not be the owner at a given point of time. He may only be a previous owner. 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, in a court of law, it is open to any party to contend that the registration certificate does not reflect the true ownership of the vehicle and satisfy the court with the relevant materials. Thus, in a court of law, it is open to any party to contend that the registration certificate does not reflect the true ownership of the vehicle and satisfy the court with the relevant materials. Where, of course, he is unable to place certain materials or if the materials so placed are not sufficient, the court will naturally act on the basis of the registration certificate. 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. 19. On a consideration of the three Kerala decisions mentioned already, that is Sahadevan's case, Kamaluddin's case and Jacob's case as well as the precedents referred in those cases, it is difficult to hold that this court intended to lay down a wide proposition to the effect that in all cases and in all circumstances, registration certificate alone has to be acted upon. In Jacob's case, the party from whose possession the vehicle was seized was unable to produce any material before the court to show that he had a better claim than the financier in whose favour the registered owner had issued a letter of relinquishment. The financier claimed under the registered owner and naturally this court held that the person who could not establish better claim than a person who claimed under the registered owner could not be given interim custody. 20. What S.451 of the Code contemplates is the property to be made over to proper custody. In deciding on 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 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. This position naturally flows from the earlier decisions of this Court and the provisions of the Act as well as other decisions referred in this order. 21. This is a proceeding under S.482 of the Code. I do not think I should go into the disputed questions of fact, weigh the evidence and materials afresh and verify whether the factual finding arrived at by the learned Magistrate is correct or not or whether any other view is possible. Such an exercise cannot be conducted in a proceeding under S.482 of the Code. It cannot be said that the learned Magistrate did not bear in mind the correct proposition of law governing the disposal of property under S.451 Crl. P.C. He has taken into consideration the circumstance that the registration certificate stands in the name of the complainant, though the complainant was unable to produce the original registration certificate. The learned Magistrate has also taken into consideration the contract set up by the accused and the document showing payment of a substantial part of the consideration and other documents relied on by him. It was on a consideration of all these materials that the learned Magistrate came to the conclusion that the accused has a better claim over the lorry and therefore is entitled to possession. I do not think any ground is made out to interfere with this conclusion under S.482 of the Code. In the result, Crl. M.C. No. 752 of 1983 is dismissed. Crl. R.P. 418 of 1983 is allowed; the order of the Sessions Court in Crl. R.P. 158 of 1983 is set aside. The order of the magistrate in Crl. M.P. 2162 of 1983 is restored. Issue carbon copy or Photostat copy, whichever is available to both parties on usual terms.