## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE K.HARIPAL**
**MONDAY, THE 4[TH] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943**
**CRL.MC NO. 3864 OF 2021**
**(CRIME NO. 48 OF 2019 OF VENGARA POLICE STATION, MALAPPURAM DISTRICT) AGAINST THE ORDER/JUDGMENT IN CMP 1340/2020 OF JUDICIAL MAGISTRATE OF FIRST**
## **CLASS ,MALAPPURAM, MALAPPURAM**
## **PETITIONER/OWNER OF THE PROPERTY:**
**ABDUL NAZAR**
**AGED 53 YEARS**
**S/O.VEERAN HAJI, AALAKKADAN HOUSE, PARAPPOOR, TIRURANGADI, MALAPPURAM DISTRICT.**
**BY ADVS. P.SAMSUDIN**
**M.ANUROOP**
## **RESPONDENT/COMPLAINANT:**
**STATE OF KERALA**
**REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.**
**SR.PP - SRI. RENJITH T.R.**
**THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.10.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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## **ORDER**
On 03.03.2019, Vengara police in Malappuram district registered crime 48 of 2019 alleging offence under Sections 409, 468 and 471 of the IPC against one Abdul Jabbar on the basis of the complaint filed by one Muhammed who is the President of Parappur Rural Co-operative Society Veenalinkal P.O., Parappoor. The substance of the allegation is that accused Abdul Jabbar, who is an employee of the said Co-operative Society committed criminal breach of trust by creating fake receipts and dishonestly removed gold ornaments pledged by the members of the society and thus committed the said offence. During the course of investigation police arrested the said accused Abdul Jabbar and later, he was taken into police custody and when interrogated in custody, he confessed to have sold the gold ornaments to a jewellery by name Madeena Jewelery owned by one Abdul Nazar. Thus as led by Abdul Jabbar, police proceeded to the Madeena jewellery in Kottakkal and seized gold ingots weighing 410.30 grams that is about 52 sovereigns and produced the same before the
Court. The investigation of the case is still going on. Then the
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petitioner who is the owner of the said Madeena jewellery moved an application under Section 451 of the Cr.P.C. before the Judicial First Class Magistrate Court, Malappuram. The learned Magistrate after hearing the counsel for the petitioner and also the learned Public Prosecutor dismissed the application under Annexure-A4 order dated 10[th] June, 2020. Now the petitioner who is the claim petitioner in Annexure-A4 order has moved this Court under Section 482 of the Cr.P.C. seeking to quash Annexure-A4 order and hand over possession of the gold ornaments to him.
2. I heard the learned counsel for the petitioner and also the
learned Senior Public Prosecutor.
3. According to the learned counsel for the petitioner, he had not obtained any gold from the accused person that what is seized by the police from his jewellery is gold ingot which is not identifiable, that it is his own property which was procured by him as part of his business which has no connection whatsoever with the incident in question. The accused cannot identify the gold or the ingot which is not distinct and therefore it is not liable to be retained in the Court. It is further stated that the accused had
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named him only with malicious intentions. The police had come to his jewellery only on the basis of the alleged confession of the accused. He has not received any gold from the accused person, the ingots seized from his jewellery are not the gold ornaments misappropriated by the accused and identification of the gold ingot is totally unbelievable and unreliable. The purported confession of the accused is only with the intention of shielding the property defalcated and siphoned off by the accused. Seizing such an item from him who is innocent is highly prejudicial to him. He is not an accused or party to the criminal proceedings. Even if it is assumed that he had received the gold ornaments from the accused that was done paying the value to the accused without knowledge that it is the property of the customers, that it cannot be retained indefinitely. The bank and customers are entitled to recover the value of the property from the accused in a properly instituted suit.The learned counsel also relied on the decision reported in **Sunderbhai Ambalal Desai v. The state of Gujarat (AIR 2003 SC 638)**
4. The learned Public Prosecutor has opposed the application.
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According to him the gold ornaments were obtained by the petitioner without good faith and then transformed into ingots and therefore it is the property of the bank, pledged with them by the members or customers of the bank. The petitioner was obtaining it dishonestly from the accused and that it is not liable to be given on interim custody to him.
5. After hearing counsel on both sides, I do not find my way to accept the contentions of the petitioner. It is true that during the course of investigation and as led by the accused who had committed large scale falsification and misappropriation of the gold ornaments pledged by the members of the society and customers and dishonestly transferred it to the jeweller, the petitioner. It cannot be believed, at least at this stage, that petitioner had obtained the gold without knowing about the criminal acts of the accused person. When the accused was interrogated in custody he made confession that the gold ornaments misappropriated by him were sold or pledged in the jewellery of the petitioner and thus, as led by the accused on the basis of the confession given by him, the police reached the jewellery and
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recovered the ingots under Section 27 of the Evidence Act. By the time the gold ornaments were melted and had transformed into ingots. The police recovered the same under Annexure-A3 mahazar and produced before the Court. Then the petitioner moved the application under section 451 of the Cr.P.C. which was dismissed by the learned Magistrate by the impugned order.
6. In fact the decision relied on by the learned counsel for the petitioner cannot apply to the facts of the case. The petitioner is not a party to the criminal proceedings. He appeared before Court staking claim over the gold ingots produced during the investigation by the police. At this stage the intention or object of the Court is to protect or preserve the property, pending adjudication. It is the definite case of the prosecution that the gold ingots were formed by melting the gold ornaments handed over by the accused to the petitioner. The petitioner has denied the same. According to him the ingots were kept by him as part of his business in jewellery conducted by him. As rightly observed the learned Magistrate, the petitioner has not produced any document to prove that the ingots were procured by him through lawful
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means.
7. Secondly, there is a disputed question on the ownership of the gold ornaments. While the prosecution says the ingots were formed using the gold ornaments dishonestly transfered by the accused to the petitioner, the petitioner wants to convince the Court that it is his own property which was procured from elsewhere for the purpose of his business. This is a disputed question of fact which can be resolved only after taking evidence. Therefore pending adjudication of the disputed question of fact the ingots cannot be handed over to the petitioner.
8. It is very pertinent to protect and preserve the property during the pendency of the proceedings. It is safe in the Court. Even if it is given on interim custody to the petitioner, it can be done only on conditions that he has to keep in his custody and shall produce as and when necessary. Petitioner will not be benefited by such an interim custody given to him. He cannot use it for his business; he cannot make any ornament out of it or cannot dispose it. Therefore, it is only appropriate that it is retained in the Court itself.
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9. After considering rival contentions and guiding materials I am not convinced that the petitioner is justified in prompting this Court to invoke jurisdiction under Section 482 of the Cr.P.C. It is trite that Section 482 of the Cr.P.C. can be invoked only sparingly that is to give effect to an order under the code or to prevent abuse of the process of any Court or otherwise to secure ends of justice. Here, the learned Magistrate has passed an order dismissing the application of the petitioner after taking into the account all necessary aspects. I do not find any reason to interfere with the said order. Thus the Criminal Miscellaneous Case is only to be dismissed. Dismissed.
Sd/- **K. HARIPAL JUDGE**
RMV/14/09/2021
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## **APPENDIX OF CRL.MC 3864/2021**
## **PETITIONER ANNEXURE**
|**Annexure A1**|**TRUE COPY OF THE MUNICIPALITY LICENSE.**|
|---|---|
|**Annexure A2**|**TRUE COPY OF THE FIR IN CRIME NO.48/2019 OF VENGARA**|
||**POLICE STATION.**|
|**Annexure A3**|**TRUE COPY OF THE SEIZURE MAHASAR IN CRIME NO.48/2019 OF**|
||**VENGARA POLICE STATION.**|
|**Annexure A4**|**CERTIFIED COPY OF THE ORDER DATED 10/06/2020 IN**|
||**CRL.MP.NO.1340/2020 OF THE JUDICIAL FIRST CLASS**|
||**MAGISTRATE COURT, MALAPPURAM.**|
