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Crl.M.C. 6524/22
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 CRL.MC NO. 6524 OF 2022**
**AGAINST CR 263/2021 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE**
**, ERNAKULAM**
**CMP NO.972/2022 IN CRIME 263/CB/CU-II/EKM/D/2021 OF CRIME BRANCH CENTRAL UNIT-II, ERNAKULAM**
**PETITIONER/ACCUSED:**
**MONSON M.C. @ MONSON MAVUNGAL AGED 52 YEARS, S/O.M.L.CHACKO MAVUNGAL HOUSE, VALLAYIL BHAGAM, CHERTHALA SOUTH VILLAGE, ALAPPUZHA DISTRICT, PIN - 688524**
**BY ADVS. SRI.M.G.SREEJITH SRI.LUKE J CHIRAYIL SMT.P.JAYA ADV.VIDYAJITH M.**
## **RESPONDENTS/STATE & COMPLAINANT:**
|**1**|**STATE OF KERALA**|
|---|---|
||**REPRESENTED BY PUBLIC PROSECUTOR,**|
||**HIGH COURT OF KERALA, PIN - 682031**|
|**2**|**DETECTIVE INSPECTOR -II**|
||**CBCU-II (CRIME BRANCH), ERNAKULAM,**|
||**ERNAKULAM DISTRICT, PIN - 682011**|
|**3**|**SANTHOSH. S**|
||**S/O. RAVEENDRAN,**|
||**RAROTH GOPURAM 124, PARAMBIL,**|
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**S.N.D.P ROAD, ELAMAKKARA, KALOOR (NOW RESIDING AT T.C.54/1508, AGRA 23, KARAMANA, KALADY, NEDUNGAD JANATHA ROAD, THIRUVANANTHAPURAM, PIN - 695002**
**BY ADVS. SRI.SIMOD SIVAN K SRI.P.BAJI RAVEENDRAN**
**BY SMT.SREEJA V, PUBLIC PROSECUTOR**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.03.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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## **BECHU KURIAN THOMAS, J. -------------------------------Crl.M.C No.6524 of 2022**
**---------------------------------** Dated this the 8[th] day of March, 2023
## **ORDER**
Petitioner is the accused in Crime No.263/CB/CU-II/EKM/D/2021 of the Crime Branch Central Unit-II, Ernakulam alleging offences punishable under sections 468, 471 and 420 of the Indian Penal Code, 1860 (for short 'IPC').
2. The aforementioned crime was registered at the instance of the third respondent, who alleged that the curios and artefacts purchased by him worth several crores of rupees were handed over to the accused for a consideration of Rs.3 crores, but without paying any amount, he retained those articles and later indulged in various crimes including rape.
3. Pursuant to the complaint of the third respondent, the investigating officer seized 569 articles. Thereafter the third respondent filed a petition under section 451 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C') seeking interim custody of the articles. It was alleged that the curios are kept in the house from which it was recovered and that the same would get damaged if kept there, uncared for. The third respondent also alleged that the curios are his life earnings and that he
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ekes out his livelihood by offering those for movie shooting. According to the third respondent, the articles were obtained by the petitioner by cheating and hence they ought to be returned to him.
4. The learned Magistrate by the impugned order dated 01.09.2022 directed articles 1 to 568 to be given in custody to the third respondent on strict conditions. The conditions included executing a bond for Rs.2 crores with two solvent sureties and with a direction to produce those curios as and when directed. The third respondent was also directed to produce photographs of all the items signed by the investigating officer and was directed not to sell or alienate the articles.
5. Sri.M.G.Sreejith, learned counsel for the petitioner assailed the order of the learned Magistrate contending that petitioner is in judicial custody in connection with other crimes and hence he could not make necessary arrangements for appearance and present his version. It was also pleaded that the petitioner himself has filed C.M.P. No.1344 of 2022 seeking release of the goods and therefore without orders being passed on the said petition, the impugned order ought not to be carried into effect. Petitioner also questioned the absence of any evidence and asserts that the curios seized from his possession ought not to be released to the third respondent. The learned counsel contended that no material was available to release the various articles seized from the petitioner's possession to the third respondent and therefore, the concept of balance of convenience
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was not even borne in mind by the learned Magistrate.
6. Sri. Simod Sivan K., learned counsel appearing for the third respondent, on the other hand, contended that petitioner had actually defrauded the third respondent and had collected 569 curios making him believe, through a forged statement, that an amount of Rs.2,62,000 crores deposited in the petitioner's account with HSBC Bank remained frozen and that the value of the curios will be paid as price, once the restraint on the said account removed. It was further alleged that the petitioner had made the third respondent believe that in order to de-freeze the said account, an amount of Rs. One crore was required and since he was short by Rs.30,00,000/- the third respondent had even paid the petitioner the said amount believing the promise of the petitioner to pay not only Rs.3 crores but also Rs.30,00,000/-, once the account is de-freezed. In the meantime, petitioner got involved in several other crimes and is alleged to have committed fraud by portraying these curios as antique items cheating the public and even the third respondent.
7. The learned counsel further submitted that since the application is only for interim custody and the petitioner remains in jail, great prejudice would be caused if the articles were not returned to the third respondent, as they would be destroyed due to non-use. It was further submitted that the third respondent has been eking out his livelihood by renting these curios for various purposes to be used in movies and other events and
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since petitioner's bail applications have been dismissed, there is no possibility of his release in the immediate future. Hence balance of convenience also rests in releasing the articles to the petitioner.
8. Smt.Sreeja V., the learned Public Prosecutor also submitted that the investigating officer has no objection to releasing articles 1 to 568 to the petitioner on conditions. It was also submitted that notice of the petition under section 451 Cr.P.C was in fact served on the petitioner and there was no representation on his behalf which was recorded by the Magistrate also.
9. I have considered the rival contentions.
10. It is pertinent to point out that petitioner had filed an application as C.M.P. No.1344 of 2022 under section 451 of Cr.P.C. seeking custody of the very same articles and by order dated 27.09.2022, the application was dismissed. The said order has not been challenged. In fact, the existence of the said order was brought to the notice of this Court only by the counsel for the third respondent and not by the petitioner.
11. Be that as it may, articles 1 to 569 were seized from the petitioner's house on the basis of the complaint by the third respondent. The articles are alleged to have been obtained by the petitioner from the third respondent through cheating and no amount has been paid as consideration. The petitioner remains in jail for the alleged commission of several crimes including offences under the Protection of Children from
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Sexual offences Act, 2012 as well as under section 376 of IPC. His bail applications have been rejected repeatedly. The investigating officer had, after seizing the articles, expressed his no objection to releasing items 1 to 568 to the petitioner on conditions. Strict conditions have been imposed by the learned Magistrate before ordering releasing of articles to the petitioner.
12. In **Sunderbhai Ambalal Desai v. State of Gujarat** [(2002) 10 SCC 283) the Supreme Court had held that the subject matter of an offence when seized, need not be kept by the police or remain unused. The said principle is of significance in the present case. The owner of the goods, according to the investigating officer, is the petitioner. If the goods are not released to the petitioner, they will remain in a state of non-use for a considerable period of time. Sufficient conditions have been imposed by the learned Magistrate to preserve them before ordering release of the articles to the petitioner. The articles have been in fact seized based upon the complaint of the third respondent himself and the application for interim custody filed by the petitioner has been rejected.
13. In this context, the alleged violation of the principles of natural justice raised by the learned counsel for the petitioner ought to be adverted to. In the petition filed by the third respondent, the petitioner was arrayed as a party. It is informed across the Bar that notice of the petition was served on the petitioner even though he was in jail. Petitioner has not
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pleaded anywhere that he has not been served with a notice of the petition.
14. The proceedings of the learned Magistrate reveal that on 12-08-2022 petitioner was called absent after having been served with notice and set exparte. If petitioner failed to utilize the opportunity granted to him, he could blame only himself. In this context it is relevant to observe that, petitioner had filed an application claiming interim custody of the properties on the very next day after the impugned order was issued. The said petition stands rejected and the said order has not been challenged and has become final.
15. While exercising the power to grant interim custody under section 451 of Cr.P.C, there is no limitation on the extent of the power of court to meet the ends of justice, having regard to the peculiar facts and circumstances of each case. Reference to the decision in **Suresh Serve v. State of Kerala** (2020 (3) KLT 395) is apposite in this context.
16. The power to direct grant of interim custody of property pending trial is to be exercised by virtue of judicial discretion. Since the word ‘interim’ itself indicates that the arrangement is temporary in nature, the court has the right to terminate the arrangement and entrust it to somebody else with a more rightful claim, even at a later point of time. Petitioner’s claim to possess the articles having been rejected, there is no merit in any of the contentions advanced. Since petitioner's application for
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custody has also been dismissed independently, there is no merit at all in the contentions now advanced by him.
17. In such circumstances, I am of the view that the impugned order does not merit any interference in the exercise of the inherent jurisdiction under section 482 Cr.P.C. This petition is dismissed.
**Sd/-**
**BECHU KURIAN THOMAS JUDGE**
vps
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## **APPENDIX OF CRL.MC 6524/2022**
**PETITIONER'S/S' ANNEXURES ANNEXURE1 CERTIFIED COPY OF THE ORDER DATED 01-092022 IN CMP NO.972 OF 2022 IN CRIME NO.263/CB/CU-II/EKM/D/2021 OF CRIME BRANCH CENTRAL UNIT-II, ERNAKULAM ON THE FILES OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM ANNEXURE-A2 TRUE COPY OF CMP NO.1344/2022 ON THE FILES OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM**
