Muthoot Fincorp Ltd. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE K.HARILAL** ## **THURSDAY, THE 3RD DAY OF JANUARY 2013/13TH POUSHA 1934** **WP(C).No. 25915 of 2012 (L) ---------------------------** **PETITIONER(S):** **--------------------------** **MUTHOOT FINCORP LTD. REPRESENTED BY ITS AUTHORISED REGIONAL MANAGER BAIJU K.B., REGIONAL MANAGER (OPERATIONS), MUTHOOT FINCORP LTD, NADAPURAM BRANCH.** **BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN** **RESPONDENT(S): -----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031 (CRIME NO 845/2012 OF KOLAVALLUR POLICE STATION,KANNUR)** **2. SUB INSEPCTOR OF POLICE,KOLAVALLUR POLICE STATION, KANNUR DISTRICT -670 001 (CRIME NO 845/2012 OF KOLAVALLUR** **POLICE STATION, KANNUR)** **3. SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDENT OF POLICE, KANNUR DISTRICT -670 001** **4. DIRECTOR GENERAL OF POLICE,** - **POLICE HEAD QUARTERS, THIRUVANANTHAPRUAM -695 001** **R1 TO R4 BY STATE ATTORNEY SRI.P.VIJAYARAGHAVAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.25915/2012** **APPENDIX** ## **PETITIONER(S) EXHIBITS** ## **EXT.P1 COPY OF THE CERTIFICATE ISSUED BY RESERVE BANK OF INDIA.** - **EXT.P2 COPY OF AUTHORIZATION ISSUED BY THE COMPANY TO THE PETITIONER TO REPRESENT THE COMPANY DATED 1-11-2012** - **EXT.P3 COPY OF THE PLEDGE CARD DATED 8-11-2011 WITH RESPECT TO GOLD LOAN NO. F 3521.** - **EXT.P4 COPY OF THE PLEDGE CARD DATED 17-2-2012 WITH RESPECT TO GOLD LOAN NO. F 3978** - **EXT.P5 COPY OF THE PLEDGE CARD DATED 11-5-2012 WITH RESPECT TO GOLD LOAN NO. F 4328.** - **EXT.P6 COPY OF NOTICE DATED 25-10-2012 RECEIVED BY THE PETITIONER FROM THE SUB INSPECTOR OF POLICE KOLAVALLUR.** - **EXT.P7 COPY OF NOTICE DATED 25-10-2012 RECEIVED BY THE PETITIONER FROM THE SUB INSPECTOR OF POLICE, KOLAVALLUR.** ## **RESPONDENTS' EXHIBITS & ANNEXURES:** ## **ANNEX R2(A) COPY OF THE NOTICE DATED 25/10/2012** - **ANNEX R2(B) COPY OF THE STATEMENT OF THE BRANCH MANAGER OF MUTHOOT FIN.CORP, NADAPURAM** **ANNEX R2(C) COPY OF THE FIR IN CRIME NO.845/12** ## **/TRUE COPY/** **P.S.TO.JUDGE** **sts** ## **K.M.JOSEPH & K. HARILAL, JJ.** ------------------------------------------------------------ W.P.(C) No.25915 of 2012-L ----------------------------------------Dated, this the 3[rd] day of January, 2013 J U D G M E N T ## K.M.Joseph, J. Petitioner has approached this Court complaining of harassment by police officer. 2. Briefly put, the case of the petitioner is as follows: Petitioner is the Regional Manager of Muthoot Fincorp. Ltd. It is a company registered under the Companies Act and doing business of gold loan and other money transactions. The company is a reputed company and has got the certificate of registration with Reserve Bank of India as Non-Banking Financial Institution. The company has got all legal documents with them to do the business. The mode of business of the company is that they used to sanction loan against gold pledging and whenever the party wants to take back the gold ornaments by closing the loan they can do so and take back the ornaments. At the time of accepting the ornaments the company used to collect documents including identity proof. Petitioner had received two notices from W.P.(C) No.25915 of 2012-L 2 the Sub Inspector of Police, Kolavallur police station. On enquiry, the petitioner understood that a crime was registered at the instance of one Divya as Crime No.845/2012 on the basis of the allegation that she had entrusted her gold ornaments to Shijila and those ornaments were not returned to Divya and thereby committed breach of trust and cheating. The Ist respondent directed the petitioner to produce the gold ornaments pledged by several persons even before questioning the said Shijila or obtaining the confession statement from her. The petitioner strongly apprehends that the 2[nd] respondent is colluding with the said Shijila to save her from the liability of the gold ornaments seized by the police even before the arrest of Shijila and hence she can be saved from arrest as well as liability to the petitioner company. The petitioner was asked to produce the ornaments before the Kolavallur police station. The petitioner was informed that if it fail to produce the ornaments the police would forcefully seize the article from the branch. The petitioner has accepted the gold after complying with all the formalities and the petitioner is also prepared to co-operate with the investigation. If the petitioner would produce the gold ornaments before the police there is no assurance that they will have any control over the property. It is also unsafe to keep the gold ornaments in the police station. The W.P.(C) No.25915 of 2012-L 3 petitioner has got lien over the property as per the provisions contained under the Indian Contract Act. Now, the attempt of the police is to harass the petitioner by taking away the ornaments without affording an opportunity to create the lien over the property. Hence, the petition for a direction to the 2[nd] respondent not to harass the petitioner by compelling him to produce the articles before the police station. 3. A statement is filed by the second respondent wherein it is inter alia stated as follows: _“2. It is submitted that the case was registered on the basis of the complaint lodged by one Divya, W.o.Surendran, Illath Ariyath, Kallikkandi on 17.10.2012 at 17.30 hrs. The brief of the case is that one Smt.Shijila, with the intention of committing breach of trust and cheat received 8 ¾ sovereign of gold ornaments owned by the complainant on the promise that she would return the same after attending the marriage ceremony. However she did not return the same, instead without consent or knowledge of the defacto complainant pledged the said ornaments in the Muthoot Bank, Nadapuram branch and thereby committed breach of trust and cheated the_ W.P.(C) No.25915 of 2012-L 4 _defacto complainant._ _3. It is submitted that the investigation of the above case was taken over by this respondent on 18.10.2012. From the investigation and statement of witnesses, it is revealed that on April 2012, the accused with the intention of committing cheat and breach of Trust, illegally procured gold ornaments weighing 5 sovereign owned by the complainant merely saying that the ornament are required for wearing in a wedding ceremony by the accused. She assured to return the same. Instead of returning the ornaments, the accused without the knowledge and consent of the complainant mortgaged the ornaments in Muthoot Fin Corp.Branch at Nadapuram. On May 2012, the accused again borrowed the gold ornament weighing 3 ¾ sovereign saying that the previous gold ornament will be given back after mortgaging the new 3 ¾ sovereign of gold. The accused mortgaged the 3 ¼ sovereign gold at the same Bank and the money thereby gold has been used for meeting her own necessities. Again the accused deliberately misleads the complainant that in order to take the_ W.P.(C) No.25915 of 2012-L 5 _Pooram curies, an amount of Rs.1,10,000/ (One Lakh and Ten Thousand only) is essential and received the said amount from the accused. Thus the accused committed breach of trust and cheat without giving back the money and ornament owned by the complainant till date._ _4. It is submitted that investigation in the above case is in progress. The accused has to be arrested and the properties has to be seized and the financial transaction of the accused has to be inquired into. During investigation it is also revealed that the accused had cheated other persons also and involved in crime No.884/12 and 858/12 under Section 406, 420 IPC. The above said crimes were registered at Koduvalloor police station and the case is under investigation. Major portion of the gold ornaments received by the accused by cheating others were mortgaged in the petitioner bank. During investigation it is further revealed that the ornaments were mortgaged in the name of the accused and also in the name of her associates. 5. It is submitted that on 25.10.2012, I along with investigation team approached the Muthoot Fin.Corp.Branch at_ W.P.(C) No.25915 of 2012-L 6 _Nadapuram and issued the notice to the Manager under Section 91 Cr.PC requesting to produce the properties involved in the case before the Investigation Officer for submitting the same before the concerned Court as per procedure. The Manager received the notice and endorsed on the overleaf of the notice that the details will be disclosed and the properties will be produced only after getting prior sanction from the Head Office and also added than an extension of 7 days has to be granted for getting the same. Accordingly, this respondent again approached Muthoot Fin.Corp, branch at Nadapuram on 31.10.2012 and the same Manager informed that no sanction has been obtained from the Head Office and thereafter I recorded the statement of the Manager. From the statement of the Manager, it is revealed that accused and the other persons who are suspected to be involved in the case opened accounts in the Muthoot Fin.Corp., Nadapuram and have made transactions with the Bank continuously. Moreover, the properties of gold ornaments worth Rs.8 ½ is still existing in the bank in the name of accused. A true copy of the notice dated_ W.P.(C) No.25915 of 2012-L 7 _25.10.2012 along with endorsement made by the petitioner is produced herewith an marked as Annexure R2 (a). The statement of the Branch Manager of Muthoot Fin.Corp. is produced herewith and marked as Annexure R2b. A true copy of the FIR in Crime NO.845/12 is produced herewith and marked as Annexure R2c._ _7. It is respectfully submitted that as per Section 91 of the Cr.PC whenever any court or any office in charge of the police station considers that the production of any document or other thing which is necessary or desirable for the purpose of any investigation such court or officer may issue summons to the person in whose possession or power such document or thing is believe to be requiring him to produce it at the time as stated in the summons.”_ 4. We heard the learned counsel for the petitioner and learned Government Pleader. Our attention is drawn to our judgment in W.P.(C) No.13897/2012. Learned counsel for the petitioner would submit that even now the so called accused has not been arrested and clever ploy is played by which the gold will be produced by the petitioner , it will be produced before the Court, 8 W.P.(C) No.25915 of 2012-L anticipatory bail will be moved by the accused and it will be submitted that the gold has been recovered and on the basis of which bail will be ordered and thereafter gold will be released to the party thereby depriving the petitioner of its right to recover the amounts due to it. He would submit that the Superintendent of Police may be directed to investigate the case in the peculiar circumstance. There is no dispute that the accused has not been arrested. We take note of our judgment in W.P.(C) No.13897/2012 and dispose of the writ petition as follows: 4. Petitioner will comply with the request to produce the gold. The respondent authority upon receipt of gold from the petitioner will produce the gold before the Magistrate at the earliest. At the time of production, the respondent officers will issue notice to the petitioner so that it may be in a position to take appropriate steps under Section 451 of the Cr.P.C. Needless to say that the manner in which the Magistrate has to deal with such a situation has already been adverted to by the Apex Court in the judgment reported in _Sunderbhai Ambalal Desai v. State of Gujarat (2002 (10) SCC 283)._ We also permit the petitioner to move the Superintendent of Police making a request for taking over the investigation of the case and it is for the Superintendent of Police to W.P.(C) No.25915 of 2012-L 9 take appropriate decision in the matter. (K.M.JOSEPH) JUDGE. ( K. HARILAL) JUDGE. MS