## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN**
**WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942**
## **WP(C).No.11009 OF 2020(A)**
## **PETITIONER:**
**MRS.SUJA W/O.DANASEELAN, PARAMBATHERIL HOUSE, NEDUVANNUR, NEDUMBASSERY, CHENGAMANAD, CHOWARA P.O. ALUVA TLAUK, ERNAKULAM DISTRICT 683 571.**
**BY ADVS. SRI.G.HARIHARAN SRI.PRAVEEN.H. SMT.K.S.SMITHA SRI.G.SIJI SRI.V.R.SANJEEV KUMAR**
## **RESPONDENTS:**
**1 SUB INSPECTOR OF POLICE NORTH PARUR POLICE STATION, NORTH PARUR, ERNAKULAM DISTRICT 683 513.**
**2 M/S. BANK OF INDIA, NORTH PARUR BRANCH, NORTH PARUR, ERNAKULAM DISTRICT683571 REPRESENTED BY ITS BRANCH MANAGER.**
## **R1 BY GOVERNMENT PLEADER SRI.E.C.BINEESH**
## **OTHER PRESENT:**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **CR**
## **JUDGMENT**
Ext.P7 order issued by the investigating officer prohibiting the operation of the bank account maintained by the petitioner ( the 2[nd] accused), her husband and son is under challenge. The crime was registered on the allegation of offences punishable under Sections 406, 420, 468 and 471 r/w Section 34 IPC in connection with the execution of a sale agreement between the parties.
2. Two statements were filed by the Public
Prosecutor stating that the accused had collected an
amount of Rs.45 lakhs on different occasions and lastly Rs.20 lakhs from the defacto complainant out of the sale consideration agreed, but did not register the
property in the name of the defacto complainant. A civil suit- O.S.No.107/2019 was filed by the defacto complainant against accused Nos. 2 and 3 before the Sub Court, North Parur for return of the amount. It was also alleged that the signatures of the defacto
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complainant, his wife and son were forged in a subsequent agreement(Ext.P3). It is also reported that the husband of the petitioner, accused No.1, is
involved in 26 cases in different police stations.
3. Section 102 Cr.P.C. is extracted below for
reference:
## _**“Section 102-Power of Police Officer to seize certain property**_
_1. Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the Commission of any offence._
_2. Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer._
_3. Every police officer acting under Sub-Section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be, conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same. Provided that where the property seized under Sub-Section (1) is subject to speedy and natural decay and if the person entitled to the possession of such_
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_property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of sections 457and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.”_
4. For the purpose of Section 102 Cr.P.C., the
bank account or the postal account of the accused or any of his relatives would be a “property” within the meaning of Section 102 Cr.P.C. and it is permissible to seize any amount or the account or to prohibit its operation by the police officer in the course of investigation.
5. In **State of Maharashtra v. Tapas D Neogi**
**[( 1999) 7 SCC 685]** , the Apex Court had the occasion to consider whether the bank account of the accused would constitute “property” within the meaning of Section 102 Cr.P.C., whether a prohibition not to operate the account would constitute “seizure” for the purpose of that section and the circumstances under which the power can be exercised. The legal position was settled that the account maintained in a bank would constitute “property” within the meaning of Section 102 Cr.P.C. and that the police officer who investigates the
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commission of offence can either seize the property or prohibit its operation by virtue of the power under that section.
6. Then comes the question under what circumstance the power under Section 102 Cr.P.C. can be exercised and whether it can be extended to all kinds of properties belonged to the accused or his relatives. To exhaust the power under Section 102 Cr.P.C., it must
be a property alleged or suspected to have been stolen or which may be found under circumstances which create the suspicion of commission of any offence under any provisions of law. The necessary corollary is that the property must either be a suspected stolen property or under the circumstance creates suspicion of any offence. The test to be applied whether the property is amenable for the application of Section 102 Cr.P.C. depends on the question whether the investigation could be completed without the seizure of that property or whether the investigation would stand defective on account of its non-seizure. To put it differently, there should be some sort of nexus to be traced out as part of investigation in relation to the property for
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the offence alleged to the extent that without which the investigation could not be completed or that it would remain defective on account of its non-seizure.
In the absence of such a nexus connecting the property
with the alleged offence, the power under Section 102
Cr.P.C. cannot be exercised. Section 102 Cr.P.C. is not a substitute for the provision contained in the Code of Civil Procedure for effecting attachment of property either before or after judgment. The
provision dealing with attachment before judgment or attachment in execution incorporated in the Code of Civil Procedure is having a larger canvass than what is incorporated under Section 102 Cr.P.C.
7. Further, any direction issued under Section 102
Cr.P.C. prohibiting operation of an account or seizure
of any property must satisfy the compliance of requirement by submitting a report of prohibition or the seizure, where the property is of the nature that
it cannot be conveniently transported to the court, to the Magistrate having jurisdiction over the subject.
8. In the instant case, what is involved is the
non-performance of part of contract by the accused in a
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contract for sale of immovable property. The crime was registered on the allegation of offence under Section 406, 420, 468, 471 r/w Section 34 IPC. A civil suit is also pending before the Sub Court, North Parur
in connection with the agreement for sale, for return
of the amount paid. Mere receipt of amount by way of advance in furtherance of a contract for sale and failure to execute the sale would not itself bring the
matter within the sweep of offence punishable under Section 420 IPC. The pendency of civil suit for return
of the advance amount based on contract for sale would prima facie show admission of contractual obligation arising out of the said contract and it will not constitute an offence of cheating. The existence of some other criminal cases against the husband of the petitioner may not be a sufficient ground to exhaust Section 102 Cr.P.C. in the instant case.
9. The forgery of the signature as that of the
defacto complainant, his son and wife in a subsequent agreement Ext.P3 is a subsequent event, by which no money transaction was effected. The bank account
maintained by the petitioner, her husband and son has
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no direct nexus with Ext.P3 and the allegation of forgery. Hence Ext.P7 order is hereby set aside.
The writ petition is allowed accordingly.
**Sd/-**
sv
**P.SOMARAJAN JUDGE**
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## **APPENDIX**
**PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE FIRST INFORMATION REPORT REGISTERED IN CONNECTION WITH CRIME NO. 1354/2019 OF NORTH PARUR POLICE STATION, AS AGAINST THE PETITIONER AND TWO OTHERS.**
**EXHIBIT P2 TRUE COPY OF THE STATEMENT DATED 24.11.2019 SUBMITTED BY THE DE FACTO COMPLAINANT BEFORE THE 1ST RESPONDENT IN CONNECTION WITH EXHIBIT P1 FIR. EXHIBIT P3 TRUE COPY OF THE SALE AGREEMENT DATED 05.01.2019 EXECUTED BY THE PETITIONER AND HIS FATHER WITH THE DE-FACTO COMPLAINANT AND HIS WIFE SMT, SABEENA. EXHIBIT P4 TRUE COPY OF THE AGREEMENT DATED 01.08.2019 EXECUTED BY THE DE FACTO COMPLAINANT AND HIS WIFE WITH THE PETITIONERS HUSBAND AND THE PETITIONER. EXHIBIT P5 TRUE COPY OF THE PLAINT IN O.S. NO. 533/2019 ON THE FILES OF MUNSIFF COURT NORTH PARUR FILED BY THE PETITIONER MOTHER AGAINST THE DE FACTO COMPLAINANT AND THREE OTHERS. EXHIBIT P6 TRUE COPY OF THE FILED IN CONNECTION WITH O.S. NO. 107/2019 BEFORE THE SUB COURT AT NORTH PARUR BY THE DE FACTO COMPLAINANT AND TWO OTHERS AGAINST THE PETITIONERS HUSBAND AND THE PETITIONER. EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 30.12.2019 ISSUED U/S 102 OF THE CRIMINAL PROCEDURE CODE BY THE 1ST RESPONDENT ADDRESSED TO THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE RELEVANT PASS BOOK ENTRY OF THE SAVINGS BANK ACCOUNT MAINTAINED BY THE PETITIONER WITH THE 2ND RESPONDENT BANK AS ON 25.05.2020. EXHIBIT P9 TRUE COPY OF THE RENT AGREEMENT EXECUTED ON 4.02.2019 EXECUTED BETWEEN THE TENANT AND THE PETITIONER HER HUSBAND AND HER SON.**
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## **RESPONDENT'S EXHIBITS**
**ANNEXURE R1(A) A TRUE COPY OF THE ORDER IN THE SLP NO.2699/2020 DATED 15.6.2020**
**/TRUE COPY/**
**Sd/-**
**P.S. TO JUDGE**
