Crl.M.C.No.615 of 2017 (Venugopal, Mohanan, Raveendran, Latha, Narayanan, Suresh v. State of Kerala and Mahindra & Mahindra Financial Service Ltd.)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 30TH DAY OF JANUARY 2017/10TH MAGHA, 1938** ## **Crl.MC.No. 615 of 2017** **-----------------------------------** ## **CRL.M.P.NO.81/2016 IN L.P.NO. 112/2013 IN S.T.NO. 138/2012 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT- III, ALUVA** **-----------------** ## **PETITIONER(S)/PETITIONER & ACCUSED :** **---------------------------------------------------------------** **1. VENUGOPAL, S/O. LATE RAGHAVAN NAIR, 'VINAYAM' (MURUTHATTIL), KALAMASSERYPARAMBIL, IRUMPANAN P.O., THIRUVANKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **2. MOHANAN, S/O. RAGHAVAN NAIR (LATE), FLAT NO.9A, OAKWOOD, SKYLINE CITY PARK, JAWAHAR NAGAR, KADAVANTHARA, KOCHI - 20.** **3. RAVEENDRAN,** - **S/O. KUNHIKUTTY AMMA (LATE), 2/5 RAM NAGAR, OPP. PATKAR COLLEGE, GOREGAON WEST, MUMBAI - 400 062, NOW RESIDING AT AMBALAPATTU HOUSE, KARIYANNUR P.O., VADAKKANCHERRY.** **4. LATHA @ LATHIKA,** - **W/O. SANTHASEELAN, 'KAILAS' VAYALKARA, KUNNUKARA P.O., ALUVA, ERNAKULAM DISTRICT.** **5. NARAYANAN @ UNNIKRISHNAN,** - **S/O. RAGHAVAN NAIR (LATE), MURUTHATTIL HOUSE, IRUMPANAN P.O., ERNAKULAM DISTRICT.** **6. SURESH,** - **S/O. RAGHAVAN NAIR (LATE), FLAT NO.4B, SIDCO VASANTH NAGAR, PALARIVATTOM, ERNAKULAM DISTRICT.** ## **BY ADVS. SRI.U.K.DEVIDAS SMT.P.M.SHAHIDA** **..2/-** **..2..** **Crl.MC.No. 615 of 2017** ## **-----------------------------------** ## **RESPONDENT(S)/COMPLAINANT & STATE :** **----------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. MAHINDRA & MAHINDRA FINANCIAL SERVICE LTD., 1ST FLOOR, AMBADI TOWERS, TOLL JUNCTION, THRIKKAKARA, ERNAKULAM DISTRICT - 682 026.** **R1 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY R2 BY ADV. SRI. DEVAPRASANTH P.J** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 615 of 2017** ## **---------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE I CERTIFIED COPY OF THE COMPLAINT DATED 27.01.2009. ANNEXURE II TRUE COPY OF THE CRL.M.P NO. 81/2016 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - III, ALUVA DATED 10.08.2016.** - **ANNEXURE III TRUE COPY OF THE ORDER DATED 29.09.2016 IN CRL.M.P NO. 81/2016 IN L.P NO. 112/2013 IN S.T NO. 138/2012 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - III, ALUVA.** - **ANNEXURE IV TRUE COPY OF THE JUDGMENT DATED 07.11.2016 IN CRL.M.C NO. 7130 OF 2016.** - **ANNEXURE V CERTIFIED COPY OF THE ORDER DATED 26.12.2016 IN CRL.M.P NO. 81/2016 IN L.P NO. 112/2013 IN S.T NO. 138/2012 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT- III, ALUVA.** - **ANNEXURE VI TRUE COPY OF THE ORDER DATED 04.01.2017 IN CRL.M.P NO. 1/2017 IN L.P NO. 112/2013 IN S.T NO. 138/2012 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - III, ALUVA.** - **ANNEXURE VII TRUE COPY OF THE PURCHASE CERTIFICATE DATED 19.07.1976 IN O.A.NO. 2075/1976 THE DEPUTY COLLECTOR (LAND TRIBUNAL) NO.1, ERNAKULAM.** - **ANNEXURE VIII TRUE COPY OF THE RELEVANT PAGE OF THE BASIC TAX REGISTER OF THIRUVANKULAM VILLAGE OFFICE ISSUED BY THE VILLAGE OFFICER, THIRUVANKULAM, DATED 19.07.2016.** - **ANNEXURE IX TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE ISSUED BY THE TAHSILDAR, KANAYANNUR TALUK DATED 26.08.2014.** - **ANNEXURE X TRUE COPY OF THE POSSESSION CERTIFICATE DATED 15.07.2015 ISSUED BY THE VILLAGE OFFICER, THIRUVANKULAM.** - **RESPONDENT(S)' ANNEXURES : NIL** **//TRUE COPY//** **P.A.TO JUDGE** Msd. ## ALEXANDER THOMAS, J. ----------------------------- Crl.M.C.No.615 Of 2017 --------------------------------- Dated this the 30th day of January, 2017. ## O R D E R The above petition has been filed by the six petitioners herein seeking to release attachment of the properties ordered by the Judicial First Class Magistrate Court-III, Aluva, in L.P.No.112/2013 arising out of S.T.No.138/2012 in which the 2[nd] petitioner was the sole accused for the offence under Sec.138 of the Negotiable Instruments Act, instituted by the 2[nd] respondent-complainant. As mentioned hereinabove, the 2[nd] petitioner is the sole accused and other five petitioners along with 2[nd] petitioner are claimed to be the six co-owners of the attached property. It is pointed out by the petitioners that earlier there were nine coowners including the parents of petitioners 1, 2, 4 & 6 as well as the brother of the said petitioners. It is pointed out that the said parents and the said brother had died and as of now there are only six co-owners including the 2[nd] petitioner, who is the accused. Petitioners claim to be exclusive owners of the property having an extent of 3.95 ares of land comprised in Re.Sy.No.142/2011 of Thiruvankulam Village. In the Sec.138 complaint instituted by the 2[nd] respondent, the learned ::2:: Crl.M.C.No.615 Of 2017 Magistrate has attached the above property due to non-appearance of the accused. According to the petitioners, the lower court has failed to follow the procedure to be adopted under Secs.82 & 82 as mandated in the enabling provisions in the Code of Criminal Procedure. It is also pointed out that in pursuance of the judgment dated 1.8.2014 of the Apex Court in Dashrath Rupsing Rathod v. State of Maharashtra & anr. reported in (2014) 9 SCC 129, the complaint was returned by the Judicial First Class Magistrate Court-III, Aluva, on 16.8.2014 to be re- presented before the appropriate court and thereafter the 2nd respondent-complainant has never taken back the original complaint from the office of the learned Magistrate and thus urged that no criminal proceedings are pending before the learned Magistrate in view of the return of the complaint. The 1st petitioner had filed an application before the learned Magistrate to release the attachment as per Crl.M.P.No.81/2016 and the learned Magistrate dismissed the same as per Anx-III order dated 29.9.2016. Aggrieved thereby, the 1st petitioner had filed Crl.M.C.No.7130/2016 before this Court challenging Anx-III order herein and this Court as per Anx-IV order dated 7.11.2016 has allowed the said Crl.M.C and had set aside the impugned order and remanded the matter to the court below to consider the entire issue ::3:: Crl.M.C.No.615 Of 2017 afresh in the light of the documents referred to in the petition, etc. In compliance with this Court's order dated 7.11.2016 as per Anx-IV order, the learned Magistrate had passed Anx-V order lifting attachment of the property to the extent it relates to the claim of the 1st petitioner as one of the co-owners of the property. The 2nd petitioner (who was the accused) had filed Crl.M.P.No.1/2017 before the learned Magistrate to recall the warrant and steps filed under Sec.70(2) of the Code of Criminal Procedure and the learned Magistrate as per impugned Anx-VI order had held that since the complaint has already been returned, there is no case pending before this Court and hence the application of the 2nd petitioner-accused was dismissed. The prayer in the instant Crl.M.C is as follows: “.................. it is humbly prayed that this Honourable Court may be pleased to allow Annexure-II petition and release from the attachment over the property in ReSy.No.142/11 of Thiruvankulam Village of the petitioners in L.P.No.112/2013 in S.T.No.138/2012 on the files of the Judicial first Class Magistrate Court-III, Aluva, in the interest of justice.” 2. Heard Sri.U.K.Devidas, learned counsel appearing for the petitioners, Sri.Saigi Jacob Palatty, learned Senior Prosecutor appearing for R-1 State and Sri.P.J.Devaprasanth, learned counsel appearing for the 2nd respondent. ::4:: Crl.M.C.No.615 Of 2017 3. It is not in dispute that pursuant to the aforementioned judgment dated 1.8.2014 of the Apex Court in Dashrath Rupsing Rathod's case (supra), the complaint was returned to the 2nd respondent complainant by the learned Magistrate as early as on 16.8.2014 and thereafter, the 2nd respondent has not received back the complaint for re-presentation before the competent court concerned. On this basis, it is argued by the learned counsel for the petitioners that no impugned criminal proceedings are pending and the proceedings for attachment should also to be treated as to be effaced and this Court may pass appropriate orders in the interest of justice. The learned Magistrate has now given a report before this Court as per letter dated 27.1.2017 stating that steps under Secs.82 & 83 of the Cr.P.C are seen issued as per order dated 5.2.2013 and on 16.11.2013, the steps were executed and the police has filed report along with a certificate dated 12.11.2013 of the Village Officer, Thiruvankulam, stating that the accused and 8 others jointly own 3.95 ares of property in Re.Sy.No.142/11 of the said village and that accused had only 1/9th undivided share over the property and that as per order dated 16.11.2013, order of attachment was issued and the matter was ordered to be addressed to the Chief Judicial Magistrate for LP sanction and on 30.12.2013, LP sanction was ::5:: Crl.M.C.No.615 Of 2017 received and the case was re-filed as L.P.No.112/2013 and non-bailable warrant was issued and on 16.8.2014, owing to lack of jurisdiction, the complaint was returned under Sec.201 of the Cr.P.C for presentation before proper court and the complainant did not take any steps to get back the complaint or case records and the file had been kept in the records section of the Magistrate Court, etc. It is not in dispute that the impugned attachment has been lifted in favour of the 1st petitioner as per Anx-V order, in the light of Anx-IV order passed by this Court on 7.11.2016 in Crl.M.C.No.7130/2016. It is to be noted that since Anx-IV order was passed in the Crl.M.C instituted only by one petitioner (1st petitioner herein), the sole beneficiary of Anx-V order was only the 1st petitioner herein. In the light of Anx-V order, if all the other co-owners other than the accused have filed such petition before the learned Magistrate, then there may not have been any legal impediment for them also to get an order in the nature of the one in Anx-V. It is for the petitioners, other than the accused, to approach the learned Magistrate with such a prayer. Though the learned Magistrate refers to the report of the Village Officer stating that there are nine co-owners to the property including the accused, the petitioners would urge that three of the co-owners have died and as of now, there are only six co-owners ::6:: Crl.M.C.No.615 Of 2017 including the 2nd petitioner-accused. Petitioners have produced AnxVII to Anx-IX documents in support of their claim that they are the coowners of the property. It is for the petitioners 3 to 6 to make a proper application before the learned Magistrate for lifting the attachment of the property in question to the extent it relates to their co-ownership rights in the property and the said applicants should also produce necessary documents showing that they are four among the six coowners. If the learned Magistrate is satisfied about the factual situation of the petitioners 3 to 6, then the learned magistrate should pass necessary orders thereon in the light of Anx-III order passed by this Court as well as Anx-V order passed by the learned Magistrate in favour of the 1st petitioner. As regards the 2nd petitioner, he is also at liberty to file a separate application before the learned Magistrate in support of his present contention that since the complaint is no longer in existence from 16.8.2014, which is well within the period of 2 years mentioned in Sec.85(3) of the Cr.P.C, it is for him to advance his contention that attachment to the extent it relates to his right an interest in the property may be lifted in view of the effacement of the property. If any such application is filed by the 2nd petitioner, the learned Magistrate shall advert to such contention and shall pass necessary ::7:: Crl.M.C.No.615 Of 2017 orders thereon. Orders as directed may be passed by the learned magistrate on the separate applications to be filed by the petitioners 3 to 6 as well as the application to be filed by the 2nd petitioner-accused, within a period of three weeks from the date of receipt of their respective applications. With these observations and directions, this Crl.M.C stands disposed of. ALEXANDER THOMAS, Judge. bkn/-