N. V. Srinivasan v. The State of Kerala and S. T. Jewellery Manufacturers and The Station House Officer, Thrissur Town East Police Station

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 12 [ TH ] DAY OF JULY 2023 / 21ST ASHADHA, 1945 ``` ## **`CRL.MC NO. 4112 OF 2023`** ## **`AGAINST THE ORDER/JUDGMENT IN CRMP 728/2023 OF CHIEF JUDICIAL MAGISTRATE ,THRISSUR`** ## **`PETITIONER/S:`** ``` N. V. SRINIVASAN AGED 58 YEARS S/O. N.R. VENKATACHALAPATHY, 6B, 26TH STREET, SIVASAKTHI NAGAR, RCC POST, ANNANUR, CHENNAI, TAMIL NADU., PIN - 600109 ``` ``` BY ADVS. M.R.DHANIL SENITTA P. JOJO ``` ## **`RESPONDENT/S:`** ``` 1 THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE THRISSUR TOWN EAST POLICE STATION, THROUGH ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 2 THE STATION HOUSE OFFICER TOWN EAST POLICE STATION THRISSUR DISTRICT, KERALA., PIN - 680001 3 S. T. JEWELLERY MANUFACTURERS REPRESENTED BY PROPRIETOR SUNIL KUMAR, AGED 54 YEARS, S/O. KUNJUNNI, KONNAKKAPARAMBIL HOUSE, VENGINISSERY DESOM, THRISSUR DISTRICT, KERALA., PIN - 680575 ``` ``` SMT. NEEMA T V, SR. PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.07.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 4112 OF 2023 ``` ``` 2 ``` ## **ORDER** The petitioner is running a jewellery business at Chennai in the name and style M/s Thejus Jewellers. He has been arrayed as the sole accused in Crime No. 77/2023 of the Thrissur East Police Station registered u/s 406 and 420 of the IPC. The aforesaid crime has been registered at the instance of one Sunil Kumar, the party respondent in this petition. The aforesaid Sunil Kumar is a wholesale manufacturer of jewellery and is running S.T Jewellery Manufacturers at Thrissur. 2. This petition is filed challenging Annexure-A9 order passed by the Chief Judicial Magistrate, Thrissur, as per which the application filed by the informant for interim custody of the jewellery seized from the shop of the petitioner was allowed. 3. The short facts are as under: On 6.1.2023, the 3rd respondent filed a complaint with the Thrissur Town East Police Station. He alleged that he has been running a wholesale and retail business in gold jewelry for the past decade. He stated that he has been acquainted with the petitioner, and they used to do business. The petitioner used to collect gold ornaments from the 3rd respondent and then pay him the proceeds after selling them. Due to ``` CRL.MC NO. 4112 OF 2023 ``` ``` 3 ``` their long-standing business relationship, the petitioner gained the 3rd respondent’s trust. On 24.12.2022, the petitioner collected gold ornaments worth 1960 grams from the 3rd respondent, promising to return the gold as well as making charges. On 3.1.2023, the 3rd respondent invited the petitioner to settle their debts. However, the petitioner did not respond. According to the third respondent, the gold ornaments taken by the petitioner weigh about 1960 grams and are valued at Rs. 96,70,900/- and the same was misappropriated, and he was cheated. 4. Based on the above complaint, Crime No. 77/2023 was registered on 7.1.2023. Immediately after registration of the crime, the petitioner was arrested, and he was produced before the learned Magistrate on 19.1.2023. Recovery of 1960 gms of jewelry was effected from the jewelry shop of the petitioner. 5. While so, an application dated 1.2.2023 was filed by the informant before the learned Magistrate seeking interim custody of the gold jewelry. The learned Magistrate sought a report from the prosecutor and allowed the application by order dated 3.2.2023. 6. The above order is under challenge. ``` CRL.MC NO. 4112 OF 2023 ``` ``` 4 ``` 7. Sri. Dhanil, the learned counsel, submitted that the order passed by the learned Magistrate cannot be sustained. He urged that the application was allowed without hearing the version of the petitioner herein. According to the petitioner, the informant is an influential person, and he has lodged a false complaint to get the crime registered and thereafter influenced the Police to get the gold ornaments seized. Without even conducting a preliminary enquiry into the genuineness of the allegations in the complaint, the police hastily seized the ornaments owned by the petitioner. It is further submitted that the false accusations are being made now because the petitioner refused to permit the informant to take over the business. The learned counsel would highlight the fact that in the complaint lodged before the Police, the complainant had not given any descriptions of the gold ornaments allegedly taken by the petitioner. However, when the application for interim custody was filed, the description of the seized gold ornaments was taken from the mahazar prepared by the Police, and the same was incorporated in the application. In order to highlight the devious manner in which the informant was acting, the learned counsel would refer to Annexure-A11 crime registered at his instance on 8.3.2023 by the Nedupuzha Police. According to the learned counsel, the allegations in the complaint lodged in the instant case are cooked up and false. ``` CRL.MC NO. 4112 OF 2023 ``` ``` 5 ``` 8. Though notice was issued to the party respondent and the same was served, he has not chosen to appear either through counsel or in person. 9. I have heard the submission of the learned Public Prosecutor and have considered the submissions advanced. 10. It is based on Annexure-A2 complaint lodged on 6.1.2023 that Annexure-A1 FIR was registered on 7.1.2023 inter alia under Sections 406 and 420 of the IPC. Section 406 of the IPC deals with criminal misappropriation of property, whereas Section 420 of the IPC deals with cheating. In the case of criminal misappropriation, the accused comes into possession of a property or acquires dominion over a property honestly and bonafide, but he develops dishonest intentions subsequent to the taking of possession and having developed such dishonest intention, he dishonestly misappropriates or converts to his own use the property or dishonestly uses or disposes of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person to do so. However, in the case of cheating, the intention of the accused is dishonest from the very inception itself. In other words, while ``` CRL.MC NO. 4112 OF 2023 ``` ``` 6 ``` in “criminal breach of trust” accused comes into possession of the property without dishonest intention and develops dishonest intention subsequent to his coming into possession of the property, the offence of “cheating” is one wherein the accused has dishonest intention from the very commencement of the transaction. In the light of the above distinction, it becomes clear that if a person is accused of having committed an offence of “Criminal breach of trust” he cannot, on the same facts, be accused of having committed the offence of “cheating”. In the instant case, after having accepted the gold ornaments by assuring its return with profit, the accused is alleged to have refrained from honoring his assurance. In the above circumstances, even if the allegations are accepted as such, both offences may not lie. This aspect of the matter was not taken note of by the learned Magistrate. 11. In the instant case, admittedly, the gold ornaments were seized from the shop of the petitioner. The seizure was effected on 29.1.2023 and the application for interim custody was filed on 1.2.2023. The order releasing the petitioner on bail was also issued on 1.2.2023. However, the order granting interim custody of the gold ornaments does not disclose that the petitioner herein was afforded an opportunity of being heard. Though there is no reference in Section 451 for the issue of ``` CRL.MC NO. 4112 OF 2023 ``` ``` 7 ``` any notice to the party adversely affected by the order, it is by now settled that all concerned parties are to be afforded an opportunity of being heard. (See **State Bank of India v. Rajendra Kumar Singh** [AIR 1969 SC 401]). 12. There is yet another matter. I find that in the application for interim custody, the details of the gold ornaments have been mentioned. It is obvious that these details were obtained from the mahazar prepared by the Police. In the complaint lodged by the de facto complainant, except for mentioning that 1960 gms of gold were entrusted, nothing else is mentioned. It does not appear from the records that the investigating officer has undertook an exercise to ascertain whether the allegations in the complaint are supported by any materials. The learned Magistrate appears to have hastily passed an order involving gold worth about rupees one crore. 13. Having considered the entire facts, I am unable to sustain the order passed by the learned Magistrate. The order dated 03.02.2023 in Crl.M.P. No.728/2023 is set aside. There will be a direction to the learned Magistrate to direct the informant to produce the articles released without delay in the very same state and condition. The petitioner shall be at liberty to file an application under Section 451 of the Code. The learned ``` CRL.MC NO. 4112 OF 2023 ``` ``` 8 ``` Magistrate shall reconsider the applications filed by both sides and pass fresh orders in accordance with law expeditiously, in any event, within one month from the date of production of a copy of this order. This petition is disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** ``` avs ``` ``` CRL.MC NO. 4112 OF 2023 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 4112/2023`** ## **`PETITIONER ANNEXURES`** - `Annexure A1 TRUE COPY OF THE CRIME/ F.I.R NO. 77/2023 OF TOWN EAST POLICE STATION THRISSUR DATED 07/01/2023.` - `Annexure A2 TRUE COPY OF THE COMPLAINT OF THE COMPLAINANT DATED 06/01/2023.` - `Annexure A3 TRUE COPY OF THE COMPLAINT OF THE PETITIONER TO POLICE COMMISSIONER, AVADI, TAMIL NADU DATED 07/01/2023.` - `Annexure A4 TRUE COPY OF THE WRITTEN LETTER GIVEN BY THE LEGAL ADVISOR OF THE COMPLAINANT'S TEAM DATED 11/01/2023.` - `Annexure A5 TRUE COPY OF THE LIST OF PROPERTY DATED 29/01/2023 IN CRIME/FIR NO. 77/2023 OF TOWN EAST POLICE STATION THRISSUR.` - `Annexure A6 TRUE COPY OF THE ORDER DATED 01/02/2023 IN CRL. MP NO. 622/2023 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT THRISSUR.` - `Annexure A7 TRUE COPY OF THE PETITION FILED BY THE COMPLAINANT U/S. 451 OF THE CODE OF CRIMINAL PROCEDURE DATED 01/02/2023.` - `Annexure A8 TRUE COPY OF THE REPORT/ STATEMENT FILED BY THE SUB INSPECTOR OF POLICE ON 02/02/2023.` - `Annexure A9 CERTIFIED COPY OF THE ORDER DATED 03/02/2023 IN CRL.MP NO. 728/2023 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR.` - `Annexure A10 TRUE COPY OF THE COMPLAINT DATED 11/03/2023.` - `Annexure A11 TRUE COPY OF THE FIR NO. 164/2023 DATED 08/03/2023 OF NEDUPUZHA POLICE STATION .` - `Annexure A12 TRUE COPY OF THE ORDER IN CRL.MC NO. 458/2023 OF THE SESSION COURT, THRISSUR DATED 19/04/2023.`