This petition, under Section 482 of the Code of Criminal

Procedure (“the Code”, for brevity) is preferred challenging the

order dated 29.05.2017 in C.M.P. No.255 of 2017 on the file of the

Judicial First Class Magistrate Court, Angamaly. By the impugned

order, interim custody of a HGV- tanker, registered in the name of

the petitioner herein, was handed over to the 1^st respondent herein

on conditions.

2.

The proceedings had its origin on a complaint filed by

the 1^st respondent before the learned Magistrate under Section

190 of the Code. From the complaint, it is discernible that the 1^st

respondent, Sri. Prathapan, is the husband of Rathi, the sister of

Sri.Shaji, the petitioner herein.

3.

For the sake of convenience, parties shall be referred to

by their names. It is alleged that Shaji is the registered owner of a

Tanker Lorry, which is the subject matter of dispute. The said

vehicle was purchased on the strength of a vehicle loan availed

from the IndusInd Bank. When he committed default,

securitisation proceedings were initiated by the Bank. Prathapan

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and Rathi are alleged to have extended help to Shaji to avoid the

sale of the secured asset. Shaji, on the other hand, is alleged to

have executed a power of attorney in the name of Prathapan

authorizing him to deal with the vehicle. He also executed a sale

letter in favour of Prathapan. An agreement was executed by Shaji

in favour of Rathi as well. By practicing deceit, Shaji approached

Prathapan and he was persuaded to part with the vehicle and the

original documents by making him believe that the registration

particulars would be transferred to the name of the Prathapan.

Believing the words of Shaji, the possession of the vehicle was

handed over on 23.08.2016. However, instead of returning the

vehicle, the petitioner is alleged to have attempted to sell the

same to money lenders/brokers to cause wrongful loss to the 1^st

respondent. It is also alleged that the 1^st respondent had parted

with a sum of Rs. 33 lakhs to close the loan towards the financier.

4.

After filing a complaint, the learned Magistrate was

moved for seizing the vehicle. The said application was allowed

and the vehicle was produced before the Court. An application was

filed by the 1^st respondent seeking interim custody of the vehicle.

He produced materials before the Court evidencing the fact that

the residential property belonging to him was mortgaged for

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amassing the amount to clear off the liabilities to the bank. The 1^st

respondent also produced the agreement entered into between the

petitioner and his wife, the power of attorney executed by the

petitioner, sale letter alleged to have been written by the petitioner

and several other documents to substantiate his contention that

the interim custody of the vehicle should be granted to him.

5.

The petitioner, on the other hand, produced document

to show that the registration of the vehicle stands in his name. He

also asserted that the vehicle has been issued with a national

permit to carry petroleum products and in view of the terms of

Annexure-II, he alone is entitled to ply their vehicles on roads. He

has also produced Annexure-III to substantiate that the

Government of India, Ministry of Commerce and Industry, has

issued licence to the petitioner to transport petroleum products

and the same is valid upto the year 2021. He denied that the 1^st

respondent had to remit a sum of Rs.33 lakhs to clear off the

liability. On the other hand, it was contended that when the

petitioner failed to clear off the defaulted amount, he had

approached the 1^st respondent and his sister for a loan and they

had paid a sum of Rs.4,50,900/– to clear off the liability. According

to the learned counsel, the offence under Section 415 or Section

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420 of the I.P.C will not be attracted as the dispute relates to

advancement of the loan amount to the brother by the sister.

6.

I have heard the learned counsel appearing for the

petitioner, the learned counsel appearing