C.K. Muhammed alias Kunhappa v. T.C. Abootty Haji and The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 Crl.MC.No. 2966 of 2008() ------------------------AGAINST THE ORDER IN CMP.1944(A)/07 IN ST.480/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD .................... ## PETITIONER: PETITIONER/ACCUSED: ------------------------------- C.K.MUHAMMED ALIAS KUNHAPPA, S/O.CHERIYAPPU KURIKKAL, CHELENKARA VEEDU, PUTHANAZHI, IRINGATTIRI P.O., KARUVARUKUNDU, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON ## RESPONDENTS: RESPONDENTS/PETITIONER: ------------------------------------ 1. T.C.ABOOTTY HAJI, S/O. UNNIYAPPU HAJI, THALIYIL KACHERIPARAMBU, THIRUVAZHIHAMKUNNU AMSOM DESOM, MANNARKKAD TALUK. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.2966 of 2008 ---------------------------------------Dated this the 28[th] day of August 2008 ## **O R D E R** The petitioner was arrayed as an accused in a prosecution under Section 138 of the Negotiable Instruments Act. He was not available. He did not appear before the learned Magistrate. The learned Magistrate, in these circumstances, initiated action under Sections 82 and 83 of the Code of Criminal Procedure. The property belonging to the petitioner was attached as per order dated 05/03/2005. No claims were preferred by anyone. The attachment continued. In the meantime, the parties settled the disputes and on 20/02/2006, the complainant filed an application for withdrawal of the case under Section 257 Cr.P.C. Accordingly, the case was permitted to be withdrawn and the accused was acquitted. Surprisingly, though the accused was acquitted, there was an omission on the part of the court to lift the order of attachment. The order of attachment hence continued without the same being withdrawn even after the case was settled and the accused was acquitted by order dated 20/2/2006 under Section 257 Cr.P.C. Crl.M.C.No.2966/08 2 2. Long later, the petitioner came to know about the order of attachment as per a communication received by him on 08/11/2006. He realised the need to get the said order of attachment vacated. He approached the learned Magistrate with an application to withdraw the attachment on 06/07/2007. The learned Magistrate, by the impugned order, rejected the application on the ground that the period of two years from the date of the order had already elapsed and therefore the learned Magistrate is powerless to withdraw the attachment. The petitioner assails the said conclusion of the learned Magistrate in this petition filed under Section 482 Cr.P.C. 3. The learned counsel for the petitioner relies on the decision in **[Vimalben Ajitbhai Patel v. Vatslabeen Ashokbhai Patel (2008(2) KLT SN 9 (C.NO.10) SC)]** and contends that as soon as the status of the accused as an absconding accused comes to an end, the attachment must be withdrawn and is not liable to be continued. The learned Magistrate, submits the learned counsel for the petitioner, must have withdrawn the attachment on 20/02/2006 when the accused was acquitted and the fact that the learned Magistrate omitted to Crl.M.C.No.2966/08 3 perform that responsibility on 20/2/2006 or thereafter is no reason for the learned Magistrate not to vacate the attachment later when the omission was pointed out to the learned Magistrate. The petitioner, on 06/07/2007 by filing an application, had only brought to the notice of the learned Magistrate, the omission to perform a function which the learned Magistrate must have performed and such omission would not justify the rejection of the prayer made by the petitioner later to pass orders to withdraw the attachment. 4. The learned counsel for the petitioner also relies on the decision in **[Pharma Kuries (P) Ltd. v. Soju (2006(4) KLT 326)]** to contend that the period of two years fixed cannot yield to any rigid of inflexible interpretation. 5. I am satisfied that for the reason that the petitioner was only pointing out to the court the omission on its part to perform the duty which it ought to have performed on 20/02/2006 when the accused was acquitted, the petitioner is entitled to succeed in this Crl.M.C. The order of attachment which is continuing unjustifiably and unnecessarily after 20/02/2006 must certainly be withdrawn now and even assuming Crl.M.C.No.2966/08 4 that the learned Magistrate is not competent to do the same in view of the elapse of the period of two years, this, I am satisfied, is an eminently fit case where the jurisdiction under Section 482 Cr.P.C must be invoked by this court in the paramount interests of justice to save the petitioner of any harm or prejudice visiting him on account of an omission on the part of this court. 6. In the result, - a) This Crl.M.C is allowed. - b) The order of attachment passed by the learned - J.F.C.M, Mannarkkad on 05/03/2005 in S.T.No.480/2006 is hereby withdrawn and vacated. The necessary consequential orders shall be issued by the learned Magistrate. ## **(R.BASANT, JUDGE)** jsr Crl.M.C.No.2966/08 5 Crl.M.C.No.2966/08 6 ## **R.BASANT, J.** CRL.M.C.No. of 2008 ORDER 09/07/2008