Karuvatta Service Cooperative Bank No.2145 v. State of Kerala and The Sub Inspector of Police

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944 ``` ``` CRL.MC NO. 5425 OF 2022 ``` ``` CRIME NO.1084/2020 OF Harippad Police Station, Alappuzha CRL.MP 1236/2021 IN CC NO.175/2021 OF JUDICIAL MAGISTRATE OF FIRST ``` ``` CLASS -II, HARIPAD ``` ## **`PETITIONER/PETITIONER IN CMP NO.1236/2021:`** ``` KARUVATTA SERVICE COOPERATIVE BANK NO.2145 KARUVATTA MURI, KARUVATTA VILLAGE, REPRESENTED BY ITS SECRETARY, SMT. DEEPA C.K., AGED 45, W/O G. SREEKUMAR, CHELAVAKKOTTU HOUSE, KARUVATTA NORTH MURI, KARUVATTA VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN – 690517 ``` ``` BY ADV ARUN CHANDRAN ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` 2THE SUB INSPECTOR OF POLICE INVESTIGATING OFFICER (CRIME NO.1084/2020), HARIPPAD POLICE STATION, HARIPPAD POST OFFICE, ALAPPUZHA DISTRICT, PIN – 690514 ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 5425 OF 2022 ``` ``` 2 ``` ## **`ORDER`** The petitioner is a Co-operative Society and they have approached this Court being aggrieved by certain conditions imposed in Annexure 3 order passed the Judicial First Class Magistrate Court II, Harippad. 2. The facts which led to the filing of this Crl.M.C. are as follows: During the night between 02.09.2020 and 03.09.2020, some persons broke open the office of the Society, cut open the strong room of the Society by using a gas cutter and committed theft of 4.5 Kilograms of gold articles pledged with the Society and also committed theft of Rs.4,50,000/- (Rupees four lakhs fifty thousand only). Total worth of the stolen articles comes to Rs.2.5 Crores. The Harippad Police Registered Annexure 1 FIR as Crime No.1084/2020, and during the course of the investigation, the gold ornaments were seized from the accused persons. Later, Annexure 2 i.e. C.M.P. No.1236/2021 was submitted by the petitioner under Section 451 of Cr.P.C. for interim custody of the aforesaid articles. The learned Magistrate disposed of the said application as per Annexure 3 order. ``` CRL.MC NO. 5425 OF 2022 ``` ``` 3 ``` In the said order, even though the petitioner was granted interim custody thereof, it was subjected to certain conditions, which according to the petitioner are too onerous to comply with. This Crl.M.C. is filed in such circumstances. 3. Heard Sri.Arun Chandran, learned counsel for the petitioner and Sri.M.P.Prashanth, learned Public Prosecutor appearing for the State. 4. The conditions in Annexure 3 under challenge in this Crl.M.C.are Sl.Nos.1, 2, 3 and 5 which are extracted hereunder: - _“1. The petitioner shall execute a bond for_ ₹ _.1,80,00,000/(Rupees one crore eighty lakh only) with two solvent sureties each for the like sum for the value of the said gold ornaments._ _2. The petitioner shall furnish security of bank guarantee for the value of the gold ornaments._ _3. Petitioner shall not alter, sell or dispose or change the appearance of the gold ornaments till the completion of the trial and without the permission of the Court._ _5. Petitioner shall produce the gold ornaments as and when required by the Court.”_ The grievance of the petitioner is that, as far as the 1[st] condition is concerned, which is for executing a bond for Rs.1,80,00,000/-, the same is beyond the means of the petitioner, as they do not have sufficient assets to produce the security in tune with the amount ``` CRL.MC NO. 5425 OF 2022 ``` ``` 4 ``` specified therein. It is also pointed out that, as far as the gold recovered by the Police is concerned, there are no rival claims in respect of the same, and all the said articles belong to the customers of the petitioner Society. It is pointed out that the customers are insisting for their gold ornaments which were pledged by them with the Society. Since the petitioner is unable to return the gold ornaments, which were furnished as security for the credit facilities availed by the customers, the petitioner is losing revenue as the respective customers are not paying the interest for the credit facilities. The 2[nd] condition is to furnish a bank guarantee for the value of gold ornaments, and the said condition is also onerous according to the petitioner due to the reasons mentioned above. Similarly, the restriction in altering, selling and disposing of the gold ornaments till the completion of the trial, is also causing difficulties to the petitioner because all the said ornaments belong to its customers and the petitioner is under an obligation to return the said ornaments to the parties concerned when they repay their debts. 5. On the other hand, the learned Public Prosecutor would ``` CRL.MC NO. 5425 OF 2022 ``` ``` 5 ``` oppose the aforesaid contentions. However, it was pointed out by the learned Public Prosecutor that in any case, if the application is allowed, condition No.4 requires modification to the effect that inventory has to be prepared by the Chief Ministerial Officer of the court or by the investigation officer, before the release of the articles. 6. I have gone through the records and heard the arguments from either side. It is evident from the records that, the Police seized the entire gold ornaments in connection with the investigation of the crime, and the Police specifically identified it as the gold ornaments which were taken away by the accused from the petitioner bank. It is also evident that there are no rival claims in respect of the aforesaid gold ornaments. While highlighting the onerous nature of the conditions and the necessity to delete the said conditions, the learned counsel places reliance upon the judgment rendered by this Court in **Suresh Serve v. State of Kerala** [2020(3) KHC 41]. In paragraph 22 (iii)(b) of the said decision, it was observed as follows: “ _(b) In a case involving theft of huge quantity of gold ornaments from a jewellery store or from a jewellery manufacturing unit, the court should take extra precautions to see whether the claimant has established, by cogent evidence, a strong prima facie case to_ ``` CRL.MC NO. 5425 OF 2022 ``` ``` 6 ``` _show his entitlement for staking the claim. In such cases, there ought to be records to support his claim. If there are sufficient documentary evidence showing his unquestionable entitlement to the articles, especially in a case where there is no rival claimant for the jewellery, we find no reason for imposing a condition that the entire jewellery shall be produced in the same condition, as and when directed. If it is established by evidence that the ornaments claimed by him are stock in trade in the jewellery store, no earthly purpose will be served by returning them to the claimant by imposing such restrictions. Hence, such a condition need not be imposed in all cases, disregarding the factual situation in each case.”_ It is true that the aforesaid observations were made by the Division Bench of this Court in respect of the condition for the production of the gold ornaments before the Court as and when required. However, the reasoning which this Court adopted in respect of the aforesaid condition is equally applicable to the conditions which are the subject matter of this case as well. This is particularly because, there is no dispute that the articles seized by the Police were stolen from the petitioner bank and the possibility of any rival claim also does not arise. It is also evident that, as of now, no such claims have arisen. As far as the necessity to produce the articles before the court is concerned, it is already held in **Suresh Serve’s** (supra) case that, in certain circumstances, the same may not be necessary, particularly ``` CRL.MC NO. 5425 OF 2022 ``` ``` 7 ``` when there are no rival claims, and there are documents establishing that, the articles in question belong to the person who makes the application for interim custody. Therefore, when the aforesaid principles are applied in the facts of this case, it can be clearly seen that, the petitioners are entitled to the custody of the articles with much more relaxed conditions than what is contemplated in the impugned order. As observed by the Division Bench of this Court, there are materials before this Court indicating the unquestionable entitlement of the petitioner for the articles concerned, which prompts this court to conclude that the petitioner is the most competent person who can be entrusted with the custody of the articles in question. 7. As mentioned above, condition No.1 is to execute a bond for Rs.1,80,00,000/- with two solvent sureties, and the 2[nd] condition as stated above, is to furnish a bank guarantee for the value of the gold ornaments. In the peculiar circumstances of the case, particularly when there is no dispute as to the right of the petitioner over the articles, I am of the view that the aforesaid conditions, ``` CRL.MC NO. 5425 OF 2022 ``` ``` 8 ``` which are apparently beyond the means of the petitioner, have to be modified. I have no reason to reject the contention of the learned counsel for the petitioner that the amount of Rs.1,80,00,000/- is beyond the means of the petitioner Society. Therefore, the amount fixed in the aforesaid condition can be modified by reducing it to Rs.20,00,000/-, which appears to be a reasonable figure in the facts and circumstances of the case. With regard to the 2[nd] condition as extracted in this order, i.e, furnishing bank guarantee for the gold, I am of the view that, since the petitioner is a Co-operative Bank, the said condition also can be dispensed with. While taking this view, I have also taken note of the fact that there are no rival claims for the articles. 8. Now, when coming to the condition Nos.3 and 5, the relevant aspect to be noticed is that admittedly all these gold ornaments were pledged with the petitioner bank by respective customers who are CWs 65 to 119. The aforesaid articles were pledged with the bank as security for the credit facilities availed by those persons. The petitioner is under an obligation to return the ``` CRL.MC NO. 5425 OF 2022 ``` ``` 9 ``` aforesaid gold ornaments once the amounts payable by the respective witnesses are cleared by them. Therefore, the condition Nos.3 and 5 would undoubtedly cause prejudice to the petitioner in continuing its business, particularly when the quantity of gold involved in the matter is substantial and failure in returning the same would cause a serious impact on the business of the bank itself, which in turn may likely to cause a threat to the very survival of the bank itself. The only apprehension, as far as the prosecution is concerned, is the necessity to identify the gold ornaments at the time of the trial to establish the offences against the accused persons. In my view, condition No.2 which is extracted in this order, would address the aforesaid apprehension. To be precise, taking proper photographs of the gold ornaments along with the appropriate certification thereof as contemplated in condition No.2 mentioned above, would serve the purpose of the prosecution as far as the identity is concerned. In addition to the same, as rightly pointed out by the learned Public Prosecutor, an inventory of the gold ornaments containing all the details of each and every item of the properties shall also be prepared ``` CRL.MC NO. 5425 OF 2022 ``` ``` 10 ``` by the investigation officer in the presence of the Chief Ministerial Officer of the court. Thus, in the light of the above, this Crl.M.C. is allowed, and Annexure 3 order is modified in the manner as follows: (i) Condition No.1 shall stand modified by fixing the amount to be deposited as Rs.20 lakhs (Rupees twenty lakhs only) instead of Rs.1,80,00,000/- (Rupees one crore and eighty lakhs only). (ii) The condition to furnish the bank guarantee for the value of gold ornaments as contemplated in condition No.2 which is extracted in para 4 of this order shall stand deleted. (iii) Condition Nos.3 and 5 shall also stand deleted. (iv) Condition No.4 shall stand modified by directing that the inventory shall be prepared by the investigation officer concerned in the presence of the Chief Ministerial Officer of the court, who shall certify the inventory. While preparing inventory, the presence of the competent officer of the petitioner shall be ensured. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ``` CRL.MC NO. 5425 OF 2022 ``` ``` 11 ``` ## **`APPENDIX OF CRL.MC 5425/2022`** ``` PETITIONER ANNEXURES Annexure1TRUE COPY OF THE FIR DATED 03.09.2020, ALONG WITH THE FIS OF THE PRESIDENT OF THE SOCIETY. Annexure2TRUE COPY OF THE CRIMINAL MISCELLANEOUS PETITION NO. 1236/ 2021 IN CC NO. 175/ 2021. Annexure3CERTIFIED COPY OF THE ORDER DATED 03.03.2022 IN CMP NO. 1236/ 2021 IN CC NO. 175/ 2021. ```