K.V.JOSEPH @ JOSE and THANKACHAN JAMES v STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 3RD DAY OF JULY 2014/12TH ASHADHA, 1936 Crl.MC.No. 5853 of 2013 () --------------------------- AGAINST THE ORDER OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PALA IN CMP 10661/2013 IN CRIME NO. 1731/2013 OF PALA POLICE STATION PETITIONER(S)/PETITIONERS: -------------------------------------------------- 1. K.V.JOSEPH @ JOSE, AGED 50 S/O.VARKEY, KALAMBUKATTU HOUSE, NIRAMPUZHA MANJALLOOR VILLAGE, MUVATTUPUZHA TALUK VAZHAKKULAM P.O.-686670. 2. THANKACHAN JAMES, AGED 53 S/O.CHACKO, NEDUMKALLEL HOUSE, NAGAPPUZHA KARA KALLOORKKADU VILLAGE, MUVATTUPUZHA TALUK NAGAPPUZHA P.O.-686668. BY ADVS.SRI.V.RAJENDRAN PERUMBAVOOR SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S)/RESPONDENTS/STATE: ---------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY DIRECTOR GENERAL OF PROSECUTIONS HIGH COURT OF KERALA, ERNAKULAM-682031. 2. SUB INSPECTOR OF POLICE, PALA.P.O.-686575. ## ADDL.R3 TO R5 IMPLEADED: - 3, JOSEPH S/O.OUSEPH, CHANKKUMKAL VEEDU, VALLIKKETTU SANTHIGIRI BHAGOM, PURAPPUZHA KARA, PURAPPUZHA VILLAGE, PURAPPUZHA P.O.685583, THODUPUZHA. 4. SIJO, S/O.JOSEPH, CHANKKUMKAL VEEDU, VALLIKKETTU SANTHIGIRI BHAGOM, PURAPPUZHA KARA, PURAPPUZHA VILLAGE, PURAPPUZHA P.O.685583, THODUPUZHA. 5. RAJEEV, S/O.GOPALAKRISHNAN, KIZHAKKEVEEDU, KOODALLOOR P.O. 686587, KIDANGOOR VILLAGE, MEENACHIL TALUK. ARE IMPLEADED AS ADDITIONAL R3 TO R5 AS PER ORDER DATED 17.06.2014 IN CRL.MA.10755/2013 IN CRL.MC NO.5853/2013 CRL.MC NO.5853/2013 2 ## ADDL.R6 SUO MOTU IMPLEADED: 6. DEPUTY COMMISSIONER, INCOME TAX DEPARTMENT, KOTTAYAM. IS SUO MOTU IMPLEADED AS ADDITIONAL R6 AS PER ORDER DATED 17.06.2014 IN CRL.MC NO.5853/2013 R3 & R4 BY ADV. SRI.BENHUR JOSEPH MANAYANI ADDL.R5 BY ADV. SRI.V.B.PREMACHANDRAN ADDL.R5 BY ADV. SRI.S.MADHAVAN NAIR R6 BY ADV. SRI.P.R.LESLIE STEPHEN,CENTRAL GOVERNMENT COUNSEL R1 & R2 BY PUBLIC PROSECUTOR SHRI JUSTIN JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03-07-2014, ALONG WITH CRL.MC NO.478/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 5853 of 2013 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- ANNEXURE-A1: TRUE COPY OF THE COMMON ORDER IN C.M.P.10661/13 AND C.M.P.10723/13 OF JUDICIAL 1ST CLASS MAGISTRATE COURT, PALA DATED 13.11.13. ANNEXURE-A2 TRUE COPY OF SALE DEED NO.2322 DATED 13.09.2013 OF THODUPUZHA SUB REGISTRY OFFICE ANNEXURE-A3 TRUE COPY OF AFFIDAVIT SWORN BY JOSEPHINE, SISTER-IN-LAW OF 1ST PETITIONER DATED 20.12.13 ANNEXURE-A4 TRUE COPY OF REMAND REPORT FILED BY 2ND RESPONDENT BEFORE THE LOWER COURT DATED 18.10.2013 ANNEXURE-A5 TRUE COPY OF PETITION BEARING NO.10661/13 DATED 30.10.13 BEFORE THE LOWER COURT BY THE PETITIONERS ANNEXURE-A6 TRUE COPY OF REPORT FILED BY THE 2ND RESPONDENT BEFORE THE LOWER COURT IN CMP NO.10661/13 DATED 4.11.2013 ANNEXURE-A7 TRUE COPY OF THE REPORT FILED BY THE 2ND RESPONDENT BEFORE THE LOWER COURT IN CMP NO.10723/2013 DATED 4.11.2013 RESPONDENT(S)' EXHIBITS: NIL --------------------------------------- //TRUE COPY// ## **A.HARIPRASAD, J.** **-------------------------------------Crl.M.C. Nos.5853 of 2013 & 478 of 2014 -------------------------------------Dated this the 3[rd] day of July, 2014.** ## **COMMON ORDER** Petitions filed under Section 482 of the Code of Criminal Procedure (in short, “Cr.P.C.”). 2. Aggrieved by the order passed by the learned Judicial First Class Magistrate-I, Pala on C.M.P.Nos.10661 of 2013 and 10723 of 2013 in Crime No.1731 of 2013 of Pala Police Station, the rival claimants before the court below, who sought relief under Section 451 Cr.P.C., have come up in these petitions. 3. Short facts are as follows: i. Pala Police registered a crime against two accused persons under Section 406 read with Section 34 of the Indian Penal Code (in short, “IPC”). The accused are arrayed as additional respondents 4 and 5 in Crl.M.C.No.5853 of 2013. Petitioners in Crl.M.C.No.5853 of 2013 contended that the 1[st] petitioner sought for a loan of `16,00,000/- from the 2[nd] petitioner for constructing a house in his property. It is also submitted that the petitioners are thick friends. 2[nd] petitioner agreed to advance money to the 1[st] petitioner. 2[nd] petitioner is a person settled in Mumbai and 2 Crl.MC Nos.5853/2013 & 478/2014 doing business there. He sold an item of property having an extent of 4.05 Ares at Thodupuzha. The sale consideration was `17,00,000/-. The sale was on 13.09.2013. He sold the land for purchasing a property for his nephew Mr.Lenin Antony, who is settled in Assam. However, Lenin Antony could not purchase a property as he desired. Thereafter, 2[nd] petitioner agreed to advance the money asked for by the 1[st] petitioner. Since the money had already been sent to Assam for the purpose of Lenin Antony, the money was sent back to the 1[st] petitioner through the accused persons. It is alleged that the accused persons committed a breach of trust and appropriated the money. With these averments, petitioners in Crl.M.C.No.5853 of 2013 claims ownership of money. ii. Petitioner in Crl.M.C.No.478 of 2014 is the father of the 1[st] accused (3[rd] respondent in Crl.M.C.No.478 of 2014). He also filed a claim petition before the court below contending that the Police unlawfully recovered `8,00,000/- from his possession. According to him, the amount of `8,00,000/- was kept in his house as it was sent by his daughter from abroad for purchasing land. 4. The court below dismissed the two applications filed under Section 451 Cr.P.C. 5. I heard Shri V.Rajendran Perumbavoor, learned counsel for the petitioners in Crl.M.C.No.5853 of 2013 and Benhur Joseph Manayani, Crl.MC Nos.5853/2013 & 478/2014 3 learned counsel for the petitioner in Crl.M.C.No.478 of 2014. Learned Public Prosecutor is also heard. 6. Shri V.Rajendran Perumbavoor, learned counsel for the petitioner in Crl.M.C.No.5853 of 2013 submitted that the court below failed to consider the legal issues involved in Section 451 Cr.P.C. For clarity, Section 451 Cr.P.C. is extracted hereunder: _“_ _**Order for custody and disposal of property pending trial in certain cases** .- When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of._ _Explanation.- For the purposes of this section, “property” includes-_ _(a) property of any kind or document which is produced before the Court or which is in its custody._ _(b) any property regarding which an offence appears to have been committed or which appears to have been used for the_ 4 Crl.MC Nos.5853/2013 & 478/2014 _commission of any offence.”_ It is evident that in a proceeding under Section 451 Cr.P.C. where cash is involved, the two crucial aspects to be decided are whether it is proper to handover custody of the property pending conclusion of enquiry or trial and whether it is expedient to do so. There cannot be a dispute that generally it is expedient to handover custody of money involved in the crime pending enquiry or trial of the case. Only question is as to whom it has to be handed over for keeping in proper custody until conclusion of the trial. 7. Court below, in its impugned order, opined that the interrogation of a crucial witness, who is a Nun and the sister-in-law of the 1[st] petitioner in Crl.M.C.No.5853 of 2013, was not done at that time. It is now submitted at the Bar that she had been questioned elaborately. Besides, an affidavit sworn to by the said witness was produced before this Court, which is marked as Annexure-A3 in Crl.M.C.No.5853 of 2013. Similarly, the impugned order does not reflect any discussion about the claim made by the petitioner in Crl.M.C.No.478 of 2014. 8. Shri Benhur Joseph Manayani submitted that the petitioner in Crl.M.C.No.478 of 2014 has evidence to show that the sum of `8,00,000/-, over which he makes claim, was sent by his daughter working abroad. It is also brought to my notice that mother of the 2[nd] accused (4[th] respondent in Crl.M.C.No.478 of 2014) had also preferred a claim, but it was also 5 Crl.MC Nos.5853/2013 & 478/2014 dismissed by the court below in the light of the impugned order. However, that matter is not before me at present. Hence no opinion is expressed about that claim. 9. The sequence of events pointed out by the learned counsel is as follows: The alleged incident of breach of trust was on 02.10.2013. It came out when a complaint was filed on 17.10.2013 and the amount of `16,00,000/- was recovered by the Police on the same day. Petitioners in Crl.M.C.No.5853 of 2013 filed a petition under Section 451 Cr.P.C. on 30.10.2013 and the petitioner in Crl.M.C.No.478 of 2014, on 31.10.2013. These petitions were jointly considered and the impugned order was passed by the court below. As noticed above, the trial court did not advert to the rival claims in detail. It only dismissed the petitions finding that the case is at an early stage of investigation. 10. Learned counsel appearing for the petitioners in Crl.M.C.No.5853 of 2013 relied on the decision of the Supreme Court in **Sunderbhai Ambalal Desai v. State of Gujarat (2003 (2) KLT 1089)** to contend that valuable articles like currency could be released under Section 451 Cr.P.C. after taking proper safeguards. The dictum of the Supreme Court clearly indicates the manner in which it could be dealt with. 11. Learned counsel also drew support from a decision of this 6 Crl.MC Nos.5853/2013 & 478/2014 Court in **Ashok Kumar v. State of Kerala (2012 (4) KLT 436)** to advance his arguments. The point that cash can be released to a party under Section 451 Cr.P.C. after taking proper safeguards is indubitable. However, this Court while exercising jurisdiction under Section 482 Cr.P.C. is not inclined to go into vexed questions of fact so as to find who will be suitable to keep the cash in custody pending trial of the case. That question can be determined by the trial court by appreciating the documents produced and after hearing the parties. Therefore, I find that the matter can be remitted to the trial court. In the result, both the petitions are allowed. The impugned order is set aside. The matter is remanded back to the trial court for fresh consideration. Parties are allowed to adduce evidence to substantiate their contentions by producing documents. The matter shall be disposed of by the court below within a period of one month from the date of production of a copy of this order. ## **A. HARIPRASAD, JUDGE.** **cks**