Therefore, this application can be allowed by modifying the condition Nos. (i), (ii) and (iii) in the impugned order dated 17/6/2014. Insofar as the contention regarding imposing of additional condition is concerned, I do not think that same is necessary as the applicant is a well established finance company which is furnishing an undertaking as well as an indemnity bond, which, therefore, are to be seen to be as good as a Bank guarantee. In the result, the application is allowed and the condition Nos. (i), (ii) and (iii) of the order dated 17/6/2014 are hereby deleted and substituted by the following conditions.:
I. The photographs of the seized vehicles taken by the Investigating Officer shall be used as secondary evidence during the trial and, therefore, physical production of the vehicles is dispensed with.II. The applicant is permitted to sell the vehicles by auction. Before auctioning off the vehicles the applicant shall get the vehicles valued by recognized Government Valuer and the Valuation Report shall be submitted to the trial Court. The details of the auction and auction proceedings shall be submitted to the trial Court.
III. The applicant shall submit an indemnity bond, stating therein, that the applicant shall remit the proceeds from the sale of the vehicles conducted through auction by the applicant to such party as may be directed by the Court. The applicant shall also submit an undertaking within two weeks from the date of the order to the effect that in the event the ownership of vehicles is found to be vested with the accused persons, the sale proceeds of the vehicles shall be deposited by it in the trial Court or shall be paid by it in terms of the order to be passed in that regard by the trial Court.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Decided On: 06.01.2015
Shriram Transport Finance Co.Ltd.
Vs.
Respondent: The State of Maharashtra and Ors.
Vs.
Respondent: The State of Maharashtra and Ors.
Hon'ble Judges/Coram:S.B. Shukre , J.
Citation: 2015ALLMR(Cri)2257
3. The applicant is finance company which has provided finance to the accused Samir Joshi for purchasing of vehicles subject to the condition that those vehicles shall be hypothecated to the applicant as a security for repayment of the loan. Due to some complaints made against the accused Samir and his associates, offences punishable under Sections 420 and 406 read with Section 34 of the Indian Penal Code and also under Section 3 of the Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999 came to be registered against said Samir and his associates. During the course of investigation twelve vehicles, which were purchased by the accused Samir on finance obtained from the applicant and which were hypothecated to the applicant, came to be seized by police.
4. The applicant being finance company to whom seized vehicles stood hypothecated moved an application under Section 457 Cr.P.C. for releasing of the vehicles to its custody on execution of suparatnama. The applicant was heard on merits and it was allowed by the learned Judge of the Special Court on 17/6/2014 subject to certain conditions. Three of the conditions namely; the applicant shall not alter the nature, colour, etc. of the vehicles, shall not sale, mortgage, transfer or create any third party interest in the vehicles and shall produce the vehicles as and when required by the Court for the purpose of evidence, were not acceptable to the applicant. Therefore, the applicant has preferred this application under Section 482 Cr.P.C. for modifying these conditions appropriately.
5. Learned Counsel for the applicant submits that even though there has been an award passed by the Arbitrator giving liberty to the applicant for selling of the vehicles after taking their possession in case the dues directed to be paid by the accused were not paid, the Special Court has imposed the aforestated prohibitory conditions. He submits that these prohibitory conditions adversely impinge upon the rights of the applicant in as much as no purpose would be served by keeping the vehicles in idle condition. He also submits that if identification of the vehicles is required to be established during the course of the evidence, same can be done by an alternate method of producing the photographs of the vehicles and other documents by way of secondary evidence. Learned Counsel also submits that in another case having identical fact situation, learned Single Judge of this Court has allowed the vehicles to be sold by public auction subject to some conditions, which were not burdensome for the applicant and which were also in the interest of conduct of fair trial of the case against the accused persons. He further submits that same conditions can also be considered to be imposed in this case while allowing this application.
6. Learned A.P.P. for the State has no objection if same conditions as are imposed by learned Single Judge of this Court in Criminal Application No. 269 of 2014 (Tata Capital Finance Services Ltd. Vs. Senior Police Inspector, Hadapsar P.S., Pune & others) decided on 04/7/2014 are directed to be followed by the applicant. He, however, states that before allowing this application, there is a need to impose an additional condition and it should be of requiring the applicant to submit a Bank guarantee for payment of amount of Rs. 1.5 crore, in case the ownership of the vehicles is found by the trial Court to be not vested with the applicant.
7. In the case of Tata Capital Finance Services Ltd. Vs. Senior Police Inspector, Hadapsar, P.S. Pune & others (Criminal Application No. 269 of 2014) decided on 04/7/2014, learned Single Judge of this Court had an occasion to consider the application for modifying the conditions imposed by the trial Court while releasing the custody of the vehicles on suparatnama. The learned Single Judge, on no objection being given by the State, found that cause of justice would be served if the conditions imposed by the trial Court were modified and thus, the learned Single Judge allowed the application. In effect, the learned Single Judge permitted Tata Capital Finance Service Limited to sell the vehicles by public auction in order to realise its dues outstanding against the borrower subject to certain conditions as mentioned in the said order. So far as these conditions are concerned, learned A.P.P. for the State has no objection. Therefore, this application can be allowed by modifying the condition Nos. (i), (ii) and (iii) in the impugned order dated 17/6/2014. Insofar as the contention regarding imposing of additional condition is concerned, I do not think that same is necessary as the applicant is a well established finance company which is furnishing an undertaking as well as an indemnity bond, which, therefore, are to be seen to be as good as a Bank guarantee. In the result, the application is allowed and the condition Nos. (i), (ii) and (iii) of the order dated 17/6/2014 are hereby deleted and substituted by the following conditions.:
I. The photographs of the seized vehicles taken by the Investigating Officer shall be used as secondary evidence during the trial and, therefore, physical production of the vehicles is dispensed with.II. The applicant is permitted to sell the vehicles by auction. Before auctioning off the vehicles the applicant shall get the vehicles valued by recognized Government Valuer and the Valuation Report shall be submitted to the trial Court. The details of the auction and auction proceedings shall be submitted to the trial Court.III. The applicant shall submit an indemnity bond, stating therein, that the applicant shall remit the proceeds from the sale of the vehicles conducted through auction by the applicant to such party as may be directed by the Court. The applicant shall also submit an undertaking within two weeks from the date of the order to the effect that in the event the ownership of vehicles is found to be vested with the accused persons, the sale proceeds of the vehicles shall be deposited by it in the trial Court or shall be paid by it in terms of the order to be passed in that regard by the trial Court.
The application is disposed of in the above terms.
No comments:
Post a Comment