MOHANAN v. THE STATE OF KERALA AND THE SUB INSPECTOR OF POLICE, PERUMBAVOOR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 7TH DAY OF JULY 2014/16TH ASHADHA, 1936** ## **Crl.MC.No. 3573 of 2014 ()** **--------------------------CMP 3045/2013 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR ----------** ## **PETITIONER/PETITIONER/ACCUSED:** **----------------------------------------------------** **MOHANAN, AGED 54 YEARS, S/O.SANKARAN, PARAPATTU HOUSE, C.T.ROAD, KANJIRAKKAD, PERUMBAVOOR, ERNAKULAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENTS/RESPONDENTS:** **----------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **2. THE SUB INSPECTOR OF POLICE PERUMBAVOOR POLICE STATION, ERNAKULAM DISTRICT PIN 683542.** **BY PUBLIC PROSECUTOR SMT. P. MAYA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **BP** **Crl.MC.No. 3573 of 2014 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ------------------------------------ANNEXURE-A: TRUE COPY OF THE CHARGE IN CRIME NO.3593/13 OF THE PERUMBAVOOR POLICE STATION.** **ANNEXURE-B: TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER AS C.M.P.NO.3045/2013 OF THE J.F.C.M-1, PERUMBAVOOR DATED, 17.12.2013. ANNEXURE-C: TRUE COPY OF THE ORDER IN C.M.P.NO.3045/2013 OF THE J.F.C.M.-I, PERUMBAVOOR DATED, 24.12.2013.** **RESPONDENT(S)' EXHIBITS : NIL.** **//TRUE COPY//** ## **P.A. TO JUDGE** ## **BP** ## K. RAMAKRISHNAN, J. -----------------------------------------------------------------Criminal M.C. No.3573 of 2014 --------------------------------------------------------------------Dated this the 7[th] day of July, 2014 ## O R D E R This criminal miscellaneous case is filed by the petitioner, who is the accused in Crime No.3593/2013 of Perumbavoor police station, challenging the condition imposed in C.M.P.3045/2013 of the Judicial First Class Magistrate Court-I, Perumbavoor, under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that, the petitioner has been arrayed as an accused in Crime No.3593/2013 of Perumbavoor police station, alleging offences under Section 17 of the Kerala Money Lenders Act. Police conducted a search in his house on 11.12.2013 and seized 21,50,000/- under Section 102 of the Code of₹ Criminal Procedure and thereafter since at that time according to the prosecution, necessary satisfactory explanations were not given for the amount, they have Crl.M.C.3573/ 2014 2 seized the amount and registered the crime. The petitioner is conducting business in the manufacture of gold ornaments and selling the same to others and he had taken loan from his brother and others also for the purpose of purchasing a property at that time and that was the amount with him, which was seized by the police. 3. According to the petitioner, the seizure was vitiated because it was not conducted by an authorized officer and there is no necessity for keeping the amount. So he filed an application for interim custody of the amount as C.M.P.No.3045/2013 before the Judicial First Class Magistrate Court-I, Perumbavorr, and the learned magistrate passed the impugned order allowing the application for interim custody, but on condition that the petitioner shall furnish bank guarantee from a nationalized bank for that amount, relying on the decision reported in ( **2013 (2) KHC 886) Sasikumar v. State of Kerala** reported in. That condition is being challenged by the petitioner before this court. Crl.M.C.3573/ 2014 3 4. Heard the learned counsel for the petitioner and learned Public Prosecutor. 5. The counsel for the petitioner submitted that, there is no provision under the Money Lenders Act for confiscation of the amount, even ultimately, if he is found guilty and in such circumstances, no stringent condition need be imposed for release of the amount. Further the prosecutor had no case that, this amount was illegally obtained also, but their apprehension was that, this money will be used for conducting illegal money lending. Further he is prepared to furnish property security instead of bank guarantee and the dictum laid down in Sasikumar's case (supra), only insists for sufficient security for this amount and it is not always necessary that, it should be bank guarantee. 6. The application was opposed by the learned Public Prosecutor on the ground that, there is no illegality committed by the court below, in passing the order. 7. It is an admitted fact that the petitioner has Crl.M.C.3573/ 2014 4 been arrayed as an accused in Crime No.3593/2013 of Perumbavoor police station, alleging offence under Section 17 of the Money Lenders Act. It is also an admitted fact that, on the basis of the search conducted in the house under Section 102 of the Criminal Procedure, an amount of ₹ 21.50,000/- was seized from the house and that was also produced along with the property list before the court. The petitioner filed C.M.P.3045/2013 for interim custody of the amount and the learned magistrate relying on the decision reported in **(2013 (2) KHC 886) Sasikumar v. State of Kerala** , granted interim custody but on condition of furnishing bank guarantee for that amount. This condition is being challenged in this case. In that case, the dictum laid down was that, the interim custody of the amount can be subject to deposit of sufficient security before the trial court. That does not mean that, it must always be cash security alone. It is true that, in that case another single bench of this court directed the petitioner in that case, to furnish bank guarantee for release of the amount. What was Crl.M.C.3573/ 2014 5 intended in that decision is that, the amount cannot be released on executing a mere bond alone, but some sufficient security has to be obtained before releasing the amount. It can be bank guarantee or some other property security also. So under the circumstances and also considering the fact that the counsel for the petitioner has offered to furnish property security, this court feels that, the condition imposed by the court below to furnish bank guarantee for that amount can be set aside and the same can be modified as follows: The petitioner is directed to furnish property security for the amount of 21,50,000/-₹ to the satisfaction of the Judicial First Class Magistrate Court-I, Perumbavoor, and execute a bond with the schedule of property, creating a change on the property to the above amount and then inform the charge created to the concerned registrar’s office, so that they can also enter the same in the respective encumbrance register. Crl.M.C.3573/ 2014 6 The petitioner shall also file an undertaking in the form of an affidavit that, he will not commit any similar offence, till the disposal of the case and he will re-deposit the amount, if so ordered later, if it is required to be re-deposited. The other conditions imposed by the court below will remain as such. With the above modification, the petition is allowed. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. RAMAKRISHNAN, JUDGE** // True Copy// P.A. to Judge ss