Crl.MC Nos.3858 & 5127 of 2021

CRL.MC Nos.3858 & 5127 of 2021 1 # IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 6[TH] DAY OF APRIL 2022 / 16TH CHAITHRA, 1944 ## CRL.MC NO. 3858 OF 2021 AGAINST THE ORDER IN CMP 1974/2020 OF JUDICIAL MAGISTRATE OF FIRST ## CLASS-1,TIRUR [CRIME NO.280/2019 OF VALANCHERY POLICE STATION] ## PETITIONER/DEFACTO COMPLAINANT: 1 ASHRAF MOOTHEDATH AGED 44 YEARS S/O. MAMMOOTTY, MOOTHEDATH HOUSE, P.O, EDAYOOR, TIRUR TALUK, MALAPPURAM DISTRICT 676552. BY ADVS. K.M.FIROZ M.SHAJNA ## RESPONDENTS/STATE AND 1ST ACCUSED: 1. STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, VALANCHERY POLICE STATION, MALAPPURAM DISTRICT 676552, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2. RAFEEQ AGED 38 YEARS S/O. KUNHAVA HAJI, VALIYAKATH HOUSE, EDAYOOR P.O, ATHIPPATTA, MALAPPURAM DISTRICT, TIRUR TALUK, MALAPPURAM DISTRICT. R2 BY K.SHIBILI NAHA ## OTHER PRESENT: FOR R1 BY ADV. SUDHEER GOPALAKRISHANAN - PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.04.2022, ALONG WITH Crl.MC.5127/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC Nos.3858 & 5127 of 2021 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 6[TH] DAY OF APRIL 2022 / 16TH CHAITHRA, 1944 ## CRL.MC NO. 5127 OF 2021 AGAINST THE ORDER IN CMP 1974/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS-1,TIRUR [CRIME NO.280/2019 OF VALANCHERY POLICE STATION] ## PETITIONER/ACCUSED: RAFEEK, AGED 38 YEARS S/O. KUNHAVA HAJI, VALIYAKATH HOUSE, EDAYOOR P.O., ATHIPATTA, MALAPPURAM DISTRICT. BY ADVS. K.SHIBILI NAHA A.LOWSY ## RESPONDENTS/STATE AND DEFACTO COMPLAINANT: 1 STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, VALANCHERY POLICE STATION, MALAPPURAM DISTRICT-676552, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM682031. 2 ASHARAF MOOTHEDATH, AGED 44 YEARS S/O. MAMOOTTY, MOOTHEDATH HOUSE, P.O. EDAYOOR, TIRUR TALUK, MALAPPURAM DISTRICT-676552. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.04.2022, ALONG WITH Crl.MC.3858/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC Nos.3858 & 5127 of 2021 3 ## O R D E R ## [Crl.MC Nos.3858/2021 & 5127/2021] ... These Crl.M.Cs. are filed challenging the order passed by the Judicial First Class Magistrate Court- 1, Tirur in C.M.P.No.1974/2020 in Crime No.280/2019 of Valanchery Police Station. The petitioner in Crl.M.C. No.3858/2021 is the defacto complainant in the aforesaid crime and the petitioner in Crl.M.C.No.5127/2021 is the accused therein. Annexure-E order was passed by the Judicial First Class Magistrate Court-1, Tirur on an application submitted by the petitioner in Crl.M.C.No.5127/2021 under Section 451 of the Code of Criminal Procedure (Cr.PC) seeking the release of certain articles. As per the order impugned in this case, the prayer sought by the petitioner in Crl.M.C.No.5127/2021 was partly allowed by releasing the laptops seized from the possession of the petitioner. Crl.MC Nos.3858 & 5127 of 2021 4 2. For convenience, Crl.M.C.No.5127/2021 is treated as the leading case and the parties and the documents are referred to in this order, in the same sequence as referred to in the said Crl.M.C. 3. The facts leading to the filing of these Crl.M.Cs. are as follows: Crime No.280/2019 was registered by the Valanchery Police Station based on a complaint submitted by the 2[nd] respondent herein, who is the defacto complainant. The allegation of the 2[nd] respondent/defacto complainant is that he had borrowed an amount of Rs.10 lakhs from the petitioner, and towards the security of the said amount, certain blank cheques and stamp papers were given. Later, he borrowed a further sum of Rs.40 lakhs from the petitioner and towards the security of the said amount, the property belonged to the 2[nd] respondent/defacto complainant was conveyed in favour of the petitioner herein on the understanding that Crl.MC Nos.3858 & 5127 of 2021 5 the said property would be reconveyed upon discharging the liability. It was alleged that, later, even though the aforesaid amounts were re-paid by the 2[nd] respondent, the petitioner herein refused to re-convey the property as per the original terms and conditions of the understanding between them. A complaint was submitted in such circumstances alleging offences punishable under Sections 406,420,506 r/w. Section 34 of the Indian Penal Code (IPC) and Sections 3 and 17 of the Kerala Money Lenders Act. As part of the investigation, a search was conducted by the police in the residence of the petitioner herein on 23.10.2019. During the search, an amount of Rs.21,50,000/-, two laptops and several title deeds of various parties were seized from the petitioner. Later, the Annexure-C application was submitted by the petitioner for releasing the aforesaid amounts, documents as well as laptops. The 2[nd] respondent herein submitted a detailed objection Crl.MC Nos.3858 & 5127 of 2021 6 as Annexure-D. After hearing all the parties, the Annexure-E order was passed by the Judicial First Class Magistrate Court-1, Tirur as per which the prayer sought by the petitioner was partly allowed by ordering release of laptops with following conditions: _“1. Furnish photograph of the laptops before the court which shall be attested by the Junior Superintendent of the Court and Property Clerk._ _2. The petitioner shall execute a bond for Rs.1,00,000/- with one solvent surety for like sum_ _3. The above said articles shall be produced as and when required by the court_ _4. The petitioner shall not delete the datas stored in the Laptops till investigation is over.”_ 4. Challenging the aforesaid order, the 2[nd] respondent filed Crl.M.C.No.3858/2021. The very same order is under challenge at the instance of the accused/petitioner in Crl.M.C.No.5127/2021. 5. Heard Sri. K.Shibili Naha, the learned counsel for the petitioner in Crl.M.C.No.5127/2021, Crl.MC Nos.3858 & 5127 of 2021 7 Sri.K.M. Firoz, the learned counsel for the petitioner in Crl.M.C.No.3858/2021, Sri. Ranjit George, the learned Public Prosecutor appearing for the State in Crl.M.C.No.5127/2021 and Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor appearing for the State in Crl.M.C.No.3858/2021. 6. The specific contention of the learned counsel for the petitioner in Crl.M.C.No.5127/2021 is that since the amount and documents were recovered from the possession of the petitioner, he is entitled to the interim custody of the same. By placing reliance upon Annexures-F and G documents, the learned counsel for the petitioner explained the source of the amount. With regard to the release of the other documents, it was pointed out by the learned counsel for the petitioner that no purpose would be served by retaining the aforesaid articles in the court. This is mainly because none of the aforementioned documents and the amounts seized from Crl.MC Nos.3858 & 5127 of 2021 8 the possession of the petitioner have any connection with the dispute involved in the said criminal case. The learned counsel also places reliance on the decisions rendered by the Hon’ble Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat [2003(2)KLT 1089] and Suresh Serve V. v. State of Kerala [2020(3) KHC 41(DB). 7. On the other hand, the learned counsel appearing for the 2[nd] respondent opposes the said contention. However, with regard to the release of laptops, it was contended by the learned counsel for the petitioner that, the grievance in respect of the same relates to the conditions imposed by the learned Magistrate while ordering the release of the same. It is pointed out that, even though one of the conditions imposed by the learned Magistrate is that the petitioner shall not delete the data stored in the laptops till the investigation is over, no measures were ordered to verify and examine the data Crl.MC Nos.3858 & 5127 of 2021 9 in the laptops at the time of the release of the same. According to the 2[nd] respondent, he has no objection in releasing the laptops after retaining the hard disk thereof in the custody of the court. 8. When considering the rival contentions of the parties, it can be seen that, as far as articles seized from the possession of the petitioner are concerned, the same has nothing to do with the offence involved in this case. The crime was registered on the specific allegation that the petitioner/accused in Crl.M.C.No.5127/2021 has granted certain credit facilities to the 2[nd] respondent at an exorbitant rate of interest and the petitioner also refused to re-convey the property which was conveyed in his favour by the 2[nd] respondent, for the purpose of security for the said transaction. It is the case of the 2[nd] respondent that the entire amount payable to the petitioner is already paid by the 2[nd] respondent. It is evident Crl.MC Nos.3858 & 5127 of 2021 10 from the records that, the 2[nd] respondent has already filed O.S.No.74/2019 before the Sub Court, Manjeri praying for a mandatory injunction to re-convey the property in favour of the 2[nd] respondent. 9. When the nature of the dispute and the offence involved in the aforesaid crime are taken into consideration, it can be seen that the articles which were seized by the police consequent to the investigation do not have any relevance. As far as the amount of Rs.21,50,000/- seized from the possession of the petitioner is concerned, the petitioner has explained the source thereof by placing reliance upon Annexures-F, and G. Annexure-F is the statement of account in which it is seen that on 29.8.2019 an amount of Rs.14,50,000/- has been transferred in his favour. Annexure-G is an affidavit sworn by one Kunharammu @ Kunhutty, who submitted the same before the Income Tax authority wherein he stated that he had paid an amount of Rs.10 lakhs to Crl.MC Nos.3858 & 5127 of 2021 11 the petitioner herein on 28.7.2019. The inspection, which resulted in the seizure, occurred on 23.10.2019. Thus, the aforesaid documents prima facie establish the case put forward by the petitioner. However, I am of the view that, an adjudication in respect of the rights of the petitioner over the aforesaid amount is not a matter to be considered under Section 451 of the Cr.PC. In Sunderbhai Ambalal Desai ’s case (supra), the Hon’ble Supreme Court has framed guidelines to be followed while considering an application under Section 451 Cr.PC. In the said decision, the Honourable Supreme Court insisted on the disposal of the valuable properties, including the currency notes recovered by the police, without any delay by taking a decision under section 451 of Cr.P.C. It was categorically held that it is not necessary to retain such articles in the custody of the court until the trial is concluded. This Court also considered the aforesaid question in Suresh Crl.MC Nos.3858 & 5127 of 2021 12 Serve ’s case (supra). In addition to the guidelines prescribed by Hon’ble Supreme Court, some additional directions were also given. The spirit of the observations made by the Hon’ble Supreme Court as well as this Court in those precedents is that, as far as the valuable properties including money which are seized as part of the investigation are concerned the same shall not be kept under the custody of the court and the same has to be returned to the party as expeditiously as possible. In this case, as far as the amounts, documents and the laptops are concerned, admittedly, the same were recovered from the possession of the petitioner herein. Considering the nature of allegations raised in the case, the 2[nd] respondent herein cannot have a claim over the aforesaid articles and amounts. In such circumstances, in the light of the principles laid down by the Hon'ble Supreme Court and this Court, it is only appropriate that the same has to be Crl.MC Nos.3858 & 5127 of 2021 13 returned as expeditiously as possible to the person from whom the aforesaid articles were seized. In such circumstances, I do not find any reason to deny the relief sought for by the petitioner herein. 10. Thus, considering the facts and circumstances of this case, I am of the view that, the order passed by the learned Magistrate declining the prayer for the release of the aforesaid articles, amounts and documents to the petitioner herein was unwarranted and is liable to be interfered with. However, at this juncture, the learned counsel for the 2[nd] respondent pointed out that some conditions are to be imposed in respect of the release of the laptops so as to protect the data stored therein. He makes such a submission because of the reason that the data contained therein includes certain details in connection with the case as well. Hence, he wants the said data to be stored properly. In my view, the said request can be addressed by imposing appropriate conditions in this order. Crl.MC Nos.3858 & 5127 of 2021 14 In the result, both Crl.M.Cs. are disposed of with the following directions: A. Annexure-E order passed by the Judicial First Class Magistrate Court-1, Tirur on 13.4.2021 in C.M.P.No.1974 in Crime No.280/2019 of Valanchery Police is hereby set aside; B. The amount of Rs.21,50,000/-, documents and laptops seized from the possession of the petitioner in Crl.M.C.No.5127/2021 shall be released to him subject to the following conditions: (a) All the articles, including the amount and the documents seized, shall be released to the petitioner upon furnishing security for an amount of Rs.20 lakhs with two solvent sureties each for the like Crl.MC Nos.3858 & 5127 of 2021 15 sum to the satisfaction of the learned Magistrate; (b) The above said articles except the currency shall be produced as and when required by the court; (c) Before releasing the laptops, the entire data stored therein shall be copied on a hard disk or any other appropriate device, in the presence of both the parties or their counsels. Thereafter, the same shall be retained by the court; (d) Before releasing the documents, the copies thereof with due attestation shall be retained in the court. ## Sd/- ZIYAD RAHMAN A.A. JUDGE pkk Crl.MC Nos.3858 & 5127 of 2021 16 ## APPENDIX OF CRL.MC 5127/2021 PETITIONER’S ANNEXURES: |Annexure A|A TRUE COPY OF THE COMPLAINT FILED BY THE| |---|---| ||2ND RESPONDENT/DEFACTO COMPLAINANT ON| ||03/10/2019 AS CMP NO. 5455/2019.| |Annexure B|A TRUE COPY OF THE FIR IN CRIME NO.0280/2019| ||DATED 5.10.2019| |Annexure C|PHOTOCOPY OF THE PETITION AND AFFIDAVIT| ||FILED UNDER SEC. 451 CR.PC TAKEN ON FILE AS| ||CMP NO.1974/2020.| |Annexure D|A TRUE COPY OF THE OBJECTION/COUNTER FILED| ||BY THE 2ND RESPONDENT DATED 23/12/2020.| |Annexure E|A CERTIFIED COPY OF THE ORDER DATED| ||13/04/2021 IN CMP 1974/2020 IN CRIME| ||NO.280/2019 OF VALANCHERY POLICE STATION, ON| ||THE FILES OF THE JUDICIAL FIRST CLASS| ||MAGISTRATE COURT I, TIRUR.| |Annexure E|A TRUE COPY OF THE BANK STATEMENT DATED| ||05/11/2019 PERTAINING TO THE ACCOUNT| ||MAINTAINED BY THE TRANSFEROR WITH KOTTACKAL| ||CO-OPERATIVE URBAN BANK.| |Annexure G|AFFIDAVIT SWORN TO BY ONE MR.KUNHARAMU| ||BEFORE THE INCOME TAX DEPARTMENT ON| ||04/08/2020.| |Annexure H|A TRUE COPY OF THE WRITTEN STATEMENT FILED| ||BY THE PETITIONER AND ANOTHER IN OS| ||NO.74/2019 DATED 15/03/2020.| Crl.MC Nos.3858 & 5127 of 2021 17 ## APPENDIX OF CRL.MC 3858/2021 PETITIONER’S ANNEXURES Annexure A1 TRUE COPY OF CMP NO. 5455 OF 2019 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, TIRUR. Annexure A2 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 280 OF 2019 OF VALANCHERY POLICE STATION. Annexure A3 TRUE COPY OF CMP NO. 1974 OF 2020 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, TIRUR. Annexure A4 TRUE COPY OF OBJECTION PREFERRED BY PETITIONER IN CMP NO. 1974 OF 2020 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT 1, TIRUR. Annexure A5 TRUE COPY OF ORDER DATED 13.04.2021 IN CMP NO. 1974 OF 2020 IN CRIME NO. 280 OF 2019 OF VALANCHERY POLICE STATION PASSED BY JUDICIAL FIRST CLASS MAGISTRATE COURT I, TIRUR.