M/S. Transsafe Refrigeration Private Ltd. & Shaheed Manappat v. State of Kerala & Olari Little Flower Kuries Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 26[TH] DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944 CRL.MC NO. 6454 OF 2022** **AGAINST THE ORDER REJECTING LIFTING OF ATTACHMENT DATED 07.10.2014 IN ST No.4620 OF 2009 REFILED AS CC 1017/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS-III, THRISSUR** ## **PETITIONERS/ACCUSED:** 1 M/S.TRANSSAFE REFRIGERATION PRIVATE LTD., AGED 57 YEARS, REPRESENTED BY MANAGING DIRECTOR, SHAHEED MANAPPAT, S/O.P.K.M.HANEEF, VELLUR ROAD, P.O.NORTH, PULLUT P.O. KODUNGALLUR, THRISSUR DISTRICT - 680 663. 2 SHAHEED MANAPPAT, AGED 57 YEARS, S/O.P.K.M.HANEEF, MANAGING DIRECTOR, M/S.TRANSSAFE REFRIGERATION PRIVATE LTD., VELLUR ROAD, P.O.NORTH, PULLUT P.O., KODUNGALLUR, THRISSUR DISTRICT – 680 663. BY ADVS. C.DINESH P.SHAMMI NAVAS ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 OLARI LITTLE FLOWER KURIES LTD., OLARIKKARA, THRISSUR, REPRESENTED BY CHAIRMAN, SUNNY, S/O.CHITTILAPPILLY DEVASSY, PULLAZHI DESOM, P.O. OLARIKKARA, THRISSUR – 680012. 0 SR.PP-SRI.RENJIT GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **Crl.M.C.No.6454 of 2022** 2 **'CR'** ## **O R D E R** ## **Dated, this the 26[th] September, 2022** This a petition filed under Section 482 of Cr.P.C to quash Annexure-A4 order dated 07.03.2018 and the petitioner herein is the accused in S.T.No.4620/2019, refiled as C.C.No.1017/2017, on the files of the Judicial First Class Magistrate Court-III, Thrissur. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the 1[st] respondent. **==> picture [380 x 13] intentionally omitted <==** attachment alone is involved and the same would cause no prejudice to the complainant, who admittedly withdrawn the complaint, notice to the complainant is dispensed with. **==> picture [380 x 13] intentionally omitted <==** commission of offence under Section 138 of the Negotiable Instruments Act was launched by the ## **Crl.M.C.No.6454 of 2022** 3 complainant. But the presence of the accused for trial failed to be secured. Accordingly, the trial court proceeded under Sections 82 and 83 of Cr.P.C. and the property of the accused having an extent of 8.9 ares comprised in schedule 1/1 Sy.No.96/2 of Pullut Village was attached. Thereafter the case was included in the Long Pending register. Later, the accused surrendered before the Magistrate Court. Subsequently, the complaint was withdrawn as per Annexure-A2. 5. It is submitted by the learned counsel for the petitioner that the matter has been settled and, accordingly, the complainant withdrew the complaint and the accused was acquitted under Section 257 of Cr.P.C. 6. It is at this juncture, the present petition was filed to lift the attachment in the property of the accused. But the learned Magistrate dismissed the application holding that such a petition cannot be allowed after ## **Crl.M.C.No.6454 of 2022** 4 expiry of two years from the date of attachment referring decision of this Court in _**Babu M.C. v. State of Kerala and another**_ [2011 (3) KHC 244]. 7. The learned counsel for the petitioner placed decision reported in _**Abdul Khader v. State of Kerala**_ [2015 (5) KHC 361], holding otherwise, where it has been held as under: _The purpose of the attachment had come to an end as was held by the Apex Court in Vimlaben(supra). Matters being so, any further enquiry is not required. When the Court below was satisfied that the petitioner had not absconded or concealed himself for avoiding execution of the warrant against him, that satisfaction itself was sufficient to release the property from attachment, in favour of the petitioner. When a formal application is not contemplated, that satisfaction itself will automatically result in the cessation of the attachment, and the property has to be delivered to such a person. The Court below shall take note of the fact that the attachment had already been ceased on 25/07/2007 itself and thereafter, there was no specific attachment in respect of the property, as the attachment became_ **Crl.M.C.No.6454 of 2022** 5 _automatically lifted. Matters being so, Annexure-A2 order passed by the Court below in CMP No.1656/2013 in CP No.11/2006 is erroneous and is liable to be quashed._ 8. In the above decision, this Court referred a decision of the Apex Court reported ## in _**Vimlaben Abhijitbhai Patel v. Vatslaben**_ _**Ashokbhahi Patel**_ [AIR (2008) SC 2675 : 2008 (2) KHC 396 : 2008 (2) KLT SN 10]. In Para 32 of the above decision, it was held as under: _The provisions contained in Section 82 of the Code of Criminal Procedure were put on the Statute book for certain purpose. It was enacted to secure the presence of the accused. Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached should be restored. The provisions of the Code of Criminal Procedure do not warrant sale of the property despite the fact that the absconding accused had surrendered and obtained bail. Once he surrenders before the Court and the standing warrants are cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end._ 9. In this case the Apex Court held that ## **Crl.M.C.No.6454 of 2022** 6 after abscondence, if the accused surrendered and obtained bail, all the standing warrants were cancelled and the accused is no longer an absconder. Further it was held that the purpose of attachment also came to an end. 10. In this matter, the prosecution itself was withdrawn by the complainant on surrender of the accused and after settlement of the case. It is to be borne out from the order that in this case attachment was effected on 07.10.2014 and the accused surrendered before the Court on 15.03.2017 i.e., two years after attachment of the property. 11. Section 85 of Cr.P.C. deals with release, sale and restoration of attached property. Section 85(1) provides that if the proclaimed person appears within the time specified in the proclamation, the court shall make an order releasing the property from the attachment. Section 85(2) provides that if the proclaimed person does not appear within the ## **Crl.M.C.No.6454 of 2022** 7 time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed of under that section, unless it is subject to speedy and natural decay, or the court considers that the sale would be for the benefit of the owner; in either of which cases the court may cause it to be sold whenever it thinks fit. 12. At the same time Section 85(3) stipulates that if, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the court by whose order the property was attached and or the court to which such court is subordinate, and proves to the ## **Crl.M.C.No.6454 of 2022** 8 satisfaction of such court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him. 13. Thus when the proclaimed person does not appear within the time specified in the proclaimation, the property under the attachment shall be at the disposal of the State Government and as per Section 85(3), if any person whose property has been attached and at the disposal of the State Government appears voluntarily or arrested and proved within a period of two years and he proves to the ## **Crl.M.C.No.6454 of 2022** 9 satisfaction of the court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, such property be delivered to him after satisfying all costs incurred in consequence of the attachment. Thus as per Section 85(3), the court has power to deliver the property to the accused, if the accused surrenders or brought before the court within two years from the date of attachment. However, it is not safe to hold that even after expiry of two years, the court has no power to order release of attachment and delivery of the property to the accused. If so, the hardships and ordeals to be faced by the accused in cases where the accused could not appear after attachment of the property under Sections 82 and 83 of Cr.P.C. within two years on justified grounds, say, for example, for want of knowledge of the attachment, is a matter of serious concern. In order to address the grievance of an accused, who appears after ## **Crl.M.C.No.6454 of 2022** 10 two years of attachment of property under Sections 82 and 83 of Cr.P.C., for justified reasons, it is absolutely necessary in the interest of justice, to take note of the unfortunate consequences if two years period mentioned in Section 85(3) as interpreted as mandatory. Therefore, the period of two years referred in Section 85(3) to be read as directory in nature and not mandatory. So that the power of the court to be ensured in considering an application lifting attachment even after two years from the date of attachment. Accordingly, it is held that even after two years mentioned in Section 85(3) of the Cr.P.C., the court has power to lift the attachment in an application filed under Section 85(3) and the release of attachment shall be considered by the Court for the reasons stated in Section 85(3) after satisfying the expenses incurred by the Government. **Crl.M.C.No.6454 of 2022** ## 11 14. In the case on hand, after appearance of the accused, the entire proceedings to secure his presence for trial came to an end and in such cases, hairsplitting technicalities shall not stand in the way of getting the attachment released and the court is duty bound to release the attachment. Therefore, dismissal of the application filed by the accused to lift the attachment cannot be justified so as to put the accused, who had paid the amount involved in the cheque and settled the matter involving a deemed offence under Section 138 of Negotiable Instruments Act, in dilemma and darkness from enjoying his property. Therefore, the order impugned is liable to be set aside, subject to payment of reasonable cost to the Government. Since no materials available to find the actual cost, Rs.2,000/- (Rupees Two thousand only) is fixed as cost. In the result, this Crl.M.C. is allowed and it is ordered that the attachment referred ## **Crl.M.C.No.6454 of 2022** 12 herein above and sought to be lifted as per Crl.M.P. No.7802/2017 in S.T. No.4620/2009 stands lifted on condition that the petitioner shall deposit Rs.2,000/- towards cost incurred by the Government while making attachment under Sections 82 and 83 of Cr.P.C. before the court below within a period of 15 days from today. It is ordered that on production of copy of this judgment and on remittance of the cost of Rs.2,000/-, the court below shall inform the District Collector, Village Officer and Sub Registrar regarding lifting of attachment and delivery of property to the petitioner/accused. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww **Crl.M.C.No.6454 of 2022** 13 ## **APPENDIX OF CRL.MC 6454/2022** ## PETITIONER'S ANNEXURES: ANNEXUREA1 TRUE COPY OF THE PETITION FILED BY THE COMPLAINANT UNDER SECTION 257 DATED 26.5.2017. ANNEXURE A2 TRUE COPY OF THE ORDER DATED 31.5.2017 ACQUITTING THE ACCUSED. ANNEXURE A3 TRUE COPY OF THE PETITION DATED 26.10.2017. ANNEXURE A4 TRUE COPY OF THE ORDER IN CRL.M.P. NO.7802 OF 2017 DATED 7.3.2018.