KURIAN.K.S v. STATE OF KERALA & SUB INSPECTOR OF POLICE, PALARIVATTOM

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE K.HARILAL FRIDAY, THE 22ND DAY OF JUNE 2012/1ST ASHADHA 1934 WP(C).No. 13118 of 2012 (L) --------------------------- PETITIONER(S): ------------- KURIAN.K.S, AGED 61 YEARS BRANCH MANAGER, MUTHOOT FINCORP LTD., MATTANCHERY. BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN RESPONDENT(S): -------------- 1. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA (CRIME NO.729/2012 OF PALARIVATTOM POLICE STATION ERNAKULAM) 682 025. 2. SUB INSPECTOR OF POLICE PALARIVATTOM POLICE STATION ERNAKULAM 682 025. (CRIME NO.729/12 OF PALARIVATTOM POLICE STATION) BY GOVERNMENT PLEADER SRI. SUJITH MATHEW JOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22-06-2012, ALONG WITH WPC. 13897/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13118 of 2012 (L) APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1- COPY OF THE NOTICE ISSUED BY THE SUB INSPECTOR OF POLICE, PALARIVATTOM, TO THE PETITIONER ON 1.6.2012 RESPONDENTS' EXHIBITS: ANNEXURE R2(A): COPY OF THE FIR IN CRIME NO.729/12. ANNEXURE R2(B): COPY OF THE FIR IN CRIME NO.751/12. ANNEXURE R2(C): COPY OF THE FIR IN CRIME NO.761/12. ANNEXURE R2(D): A TABULAR STATEMENT SHOWING THE DETAILS OF THE GOLD ORNAMENTS RECOVERED FROM DIFFERENT FINANCIAL INSTITUTIONS. /TRUE COPY/ P.S. TO JUDGE CL ## **K.M. JOSEPH & K. HARILAL, JJ.** **==> picture [288 x 81] intentionally omitted <==** ## **JUDGMENT** ## **Joseph, J.** The issue involved is common, we dispose of these writ petitions by a common judgment. 2. The case of the petitioners in brief is as follows: The petitioner in W.P.(C)No.13118/2012 is the Branch Manager of Muthoot Fincorp and the petitioner in W.P.(C) No.13897/2012 is the Area Manager of the same company. The company is doing business in gold loan and other money transactions. It is stated that it is a reputed company and has so many years of standing in the field. They are doing the business in accordance with law. One lady by name Mayusha approached the Mattanchery branch of the company and pledged gold ornaments after complying with all formalities and loan was sanctioned against gold. The petitioners had received a notice from the Sub Inspector of Police, Palarivattom directing to produce the gold ornaments pledged as loan No.F.96353. Though the W.P.(C)NO.13118 OF 2012 & W.P.(C)NO.13897 OF 2012 : 2 : petitioners tried to ascertain the details from the police station, they could not get any details other than the notice regarding details of the crime registered. According to the petitioners, they accepted the gold after complying with all the formalities and they are prepared to co-operate with the investigation. The petitioners' apprehension is that if they produce the good ornaments before the police, there is no assurance that they will have any control over the property. It is also unsafe to keep the gold ornaments in the police station as observed by the Apex Court in the decision reported in **Sunderbhai Ambalal Desai v. State of Gujarat** (2002 (10) SCC 283), it is contended. According to the petitioners, the pawner has got clear title over the property at the time of pledging the property with the company. 3. Statements have been filed by the Sub Inspector of Police, Palarivattom. Therein it is inter alia stated as follows: The accused with the intention to cheat people, collected gold ornaments and money from common people by offering huge interest. After getting the gold ornaments, W.P.(C)NO.13118 OF 2012 & W.P.(C)NO.13897 OF 2012 : 3 : the accused pledged gold ornaments in different financial institutions. The conduct of the accused in pledging gold ornaments at different financial institutions simultaneously, without even redeeming any other pledge also shows the dishonest intention on the part of the accused, it is stated. On the basis of the disclosure of the accused and for successful prosecution, the police have served notice under Section 91 Cr.P.C to various financial institutions where the accused pledged the gold ornaments of the public. Ext.R2(d) purports to be the tabular statement showing details of the gold ornaments recovered from different financial institutions. It is stated that the petitioners have approached the Deputy Commissioner of Police seeking time, but did not produce the gold ornaments. Ext.R2(e) is a tabular statement showing details of the gold ornaments which is to be recovered from the different branches of Muthoot Fincorp. Recovery of the gold ornaments which are pledged in Muthoot Fincorp is most essential for successful prosecution. 4. We heard the learned counsel for the petitioners and the learned Special Government Pleader. The learned counsel W.P.(C)NO.13118 OF 2012 & W.P.(C)NO.13897 OF 2012 : 4 : for the petitioners would draw our attention to Section 178 of the Contract Act and contend that the pawner had good title and the transactions between the petitioner company and loaners were done in a legal manner. He would further draw our attention to the decision of the Apex Court reported in **Sunderbhai Ambalal Desai v. State of Gujarat** (2002 (10) SCC 283). Therein in paras 7 and 11 the Apex Court observed as follows: “7. In our view, the powers under Section 451 Cr.P.C should be exercised expeditiously and judiciously. It would serve various purposes, namely: 1. owner of the article would not suffer because of its remaining unused or by its misappropriation; 2. court or the police would not be required to keep the article in safe custody; 3. if the proper panchnama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and 4. this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles”. 11. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police W.P.(C)NO.13118 OF 2012 & W.P.(C)NO.13897 OF 2012 : 5 : custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, the Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C at the earliest.” He would further submit that the petitioners are willing to co-operate with investigation. The learned Special Government Pleader would submit that the police is only acting in accordance with the requirement of law and this Court may not interfere with the right of the police to recover the gold and produce before the Magistrate and it is for the petitioners to avail the remedies as per law. He would submit that to facilitate the same, the respondent officers will issue notice to the petitioners. This is to allay the apprehension of the petitioners that the persons concerned may be in a position to obtain orders from the Magistrate without noticing the claim of the petitioners. 5. After hearing the learned counsel for the parties, we are of th view that the following order has to be passed in the interests of justice. Notice will again be issued to the petitioners W.P.(C)NO.13118 OF 2012 & W.P.(C)NO.13897 OF 2012 : 6 : calling upon them to produce the gold involved. Upon receipt of the notice, the petitioners will comply with the same. Thereupon the respondent authority upon receipt of the gold from the petitioners will produce the gold before the Magistrate at the earliest. At the time of production, the respondent officers will issue notice to the petitioners so that they may be in a position to take appropriate steps under Section 451 of the Cr.P.C. Needless to say that the manner in which the Magistrate has to deal with such a situation has already been adverted to by the Apex Court which we have extracted in our judgment. ## **K.M. JOSEPH, JUDGE.** ## **K. HARILAL, JUDGE.** **cl**