S. Lalitha and M. Somanathan v. The Thiruvananthapuram Service Co-Operative Bank Ltd., Sub Inspector of Police, Thampanoor, and State of Kerala

Crl.M.C.No.7234/2019 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 9[TH] DAY OF FEBRUARY 2022 / 20TH MAGHA, 1943_ _CRL.MC NO. 7234 OF 2019_ _AGAINST THE ORDER/JUDGMENT IN CMP 46/2019 OF JUDICIAL MAGISTRATE_ _OF FIRST CLASS -III,TRIVANDRUM_ ## _PETITIONERS/PETITIONERS:_ _1 S.LALITHA, AGED 56 YEARS, W/O.LATE SRI SREENIVASAN EMBRAN, T.C 37/408, WEST FORT, THIRUVANANTHAPURAM_ _2 M.SOMANATHAN, AGED 50 YEARS, SAMTHRIPTHI, MUNDELA P.O, VELLANADU, TRIVANDRUM._ _BY ADV.ARUN BABU_ ## _RESPONDENTS/RESPONDENTS & STATE:_ - _1 THE THIRUVANANTHAPURAM SERVICE CO-OPERATIVE BANK LTD., NO T-131, 26/1627. GPO, GOVT PRESS ROAD, THIRUVANANTHAPURAM, KERALA 695 001. REP BY ITS SECRETARY_ - _2 SUB INSPECTOR OF POLICE, THAMPANOOR POLICE STATION, THIRUVANANTHAPURAM 695 014._ - _3 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682 031. BY ADVS. SRI.D.SAJEEV SMT.LIGEY ANTONY_ Crl.M.C.No.7234/2019 2 _R2, R3 BY SRI.SUDHEER GOPALAKRISHANAN – PUBLIC PROSECUTOR_ _THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.02.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:_ Crl.M.C.No.7234/2019 3 ## **O R D E R** The petitioners herein are aggrieved by Annexure-A9 order passed in CMP.No.46 of 2019 by the Judicial First Class Magistrate Court-III, Thiruvananthapuram. The aforesaid petition was submitted by the petitioners herein under Section 451 Cr.P.C. seeking release of certain gold ornaments which were seized by the police and produced before the learned Magistrate in connection with Crime No.1730 of 2012 of Thampanoor Police Station, which is now pending before the Court as C.C.No.1451 of 2015. As per Annexure-A9 order, petition submitted by the petitioners was dismissed. 2. The facts leading to the filing of this Crl.M.C. are as follows: The 1[st] petitioner along with her husband, pledged 134 gms of gold ornaments with Thiruvananthapuram Service Cooperative Bank Ltd., who is the 1[st] respondent herein towards security for a credit facility. Similarly, the 2[nd] petitioner also pledged 134 gms of gold ornaments with the 1[st] respondent Crl.M.C.No.7234/2019 4 herein. Later, the 1[st] respondent found certain misappropriations of gold ornaments pledged with them, by some of the employees and in connection with the aforesaid misappropriations, Crime No.1730 of 2012 was happened to be registered by the Thampanoor Police. As part of investigation of the case, the gold ornaments were seized and were produced before the court. The bank submitted CMP.No.758 of 2013 seeking custody of the aforesaid ornaments under Section 451 Cr.P.C., which was allowed as per order dated 26.03.2013. As per the said order, the entire gold ornaments including the gold ornaments belonging to the petitioners herein were entrusted with the 1[st] respondent bank, on condition of execution of bonds and upon furnishing security. It was also ordered that, the bank shall retain custody of the same and no alienation of the same was permitted. It was also directed that the bank is also obliged to produce those ornaments in the same condition as the same were received by the bank, as and when required by the court. It is reported that the entire gold ornaments are kept in a bundle, sealed by court and for complying the conditions as Crl.M.C.No.7234/2019 5 mentioned above, the entire bundle was handed over to the bank and they are now keeping the same in their custody. 3. Later, the petitioners, being aggrieved by refusal on the part of the 1[st] respondent bank to release the articles, have approached this Court by filing W.P.(C).No.7599 of 2017. The said writ petition was disposed by Annexure-A6 judgment dated 09.08.2017 wherein the prayer sought for by the petitioner was declined but it was observed that the petitioners shall be at liberty to move the Magistrate concerned by filing an application under Section 451 Cr.P.C. 4. Annexure-A7 petition was submitted by the petitioners under Section 451 Cr.P.C. in such circumstances. In Anneuxre-A7, the details of the articles which were sought to be released to them were described as T388/12, T389/12 T387/12, T390/12 and T391/2012. The bank appeared and submitted Annexure-A8 objection to the same wherein they have pointed out the fact that, the entire articles are kept in a bundle which contains seal of the court. It was also pointed out that, the bank is bound by the conditions imposed upon them as per Crl.M.C.No.7234/2019 6 order passed by this Court in CMP.No.758 of 2013. It is pointed out that the entire articles are kept in a bundle and it is not possible for them to identify the said articles. In order to do the said exercise, seal affixed on the bundle has to be broken and the properties are to be identified. 5. The learned Magistrate passed Annexure-A9 order dismissing the said application by pointing out certain discrepancies in the quantity of the gold ornaments claimed in the petition and the quantity available with the bank. It was also pointed out that the petitioners have not challenged the earlier order passed by the court granting interim custody to the bank. 6. Heard Sri.Arun Babu, learned counsel for the petitioner, Sri.D.Sajeev, learned counsel for the 1[st] respondent and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State. 7. The learned counsel for the petitioners contends that they are prepared to clear the liability towards the bank and once the said liability is cleared, they are entitled to have the Crl.M.C.No.7234/2019 7 custody of the aforesaid articles. The learned counsel also relies on the judgment of this Court reported in **Suresh Serve v. State of Kerala [2020(3) KLT 395]** and **Sundarbhai Ambalal Desai v. State of Gujarat [2003 (2) KLT 1089 (SC)]** passed by the Honourable Supreme Court. By relying upon the aforesaid judgments, it is pointed out that, as per the judgments mentioned above, various guidelines have been prescribed by the Honourable Supreme Court as well as this Court in the matter of release of the articles including the gold ornaments and other valuables. It is also pointed out that the observations made in the aforesaid judgments are to the effect that the custody of the articles are to be handed over to the persons who are eligible for the same as expeditiously as possible by properly identifying the persons who are entitled for such custody. The practice of keeping the aforesaid articles in the court and in police custody is also deprecated. In such circumstances, the learned counsel prays for release of the articles in his favour. Crl.M.C.No.7234/2019 8 8. On the other hand, the learned counsel for the 1[st] respondent points out that, bank has no objection in releasing the aforesaid articles in favour of the petitioners, provided, the petitioners clear the entire liability towards loan account including the liability of the husband of the 1[st] petitioner. The learned counsel for the 1[st] respondent also expressed difficulty in identifying the aforesaid articles, as the entire gold ornaments which comes to 1022gms, are kept in a bundle sealed by the court. It is pointed out that, unless the same is broken and ornaments of the petitioners are identified, the same cannot be released. Apprehension was also voiced by the learned counsel for the 1[st] respondent that, unless the identification of the gold ornaments is done in the presence of all the persons whose gold ornaments were seized in connection with the crime , it may give rise to rival claims on the gold ornaments. 7. The question that arises here is as to the interim custody of the gold ornaments in question. As far as the ownership of the petitioners in respect of the gold ornaments 9 Crl.M.C.No.7234/2019 are concerned, apparently there is no dispute. The only impediment as regards the bank is that certain amounts are due to them in respect of certain loan transactions from the petitioners which were provided on the basis of security of the aforesaid gold ornaments. However, the petitioners have admitted that they are prepared to clear the entire arrears payable to the bank including the loan amount repayable in respect of loan obtained by the husband of the 1[st] petitioner. The petitioners as well as the bank has reached a consensus with regard the extent of liabilities of the petitioners, which are mentioned in Annexure-A8 paragraph No.9. 8. In **Sundarlal Ambalal’s case** (supra) the Honourable Supreme Court formulated certain guidelines as to the manner in which the articles seized in connection with the crime have to be released while considering the petition under Section 451 Cr.P.C. The aforesaid guidelines were reiterated and with some additional guidelines were prescribed in the judgment passed by a Division Bench of this Court in **Suresh Serve’s case** (supra). Going by the principles laid down by the Crl.M.C.No.7234/2019 10 Honourable Supreme Court as well as this Court, it is always advisable to release the articles in favour of the persons who are able to establish their ownership and title over the same, subject to the conditions to be stipulated as mentioned in the said guidelines. In this case, I am of the view that, since there is no dispute as to the right and ownership of the petitioners herein in respect of the gold ornaments, the same can be released in their favour. However, in view of the peculiar factual circumstances existing in this case, there are certain practical difficulties in doing so and the question that arises is as to the manner in which such release has to be taken place. The first impediment is the difficulty in identifying the aforesaid articles. As pointed out by the learned counsel for the 1[st] respondent, they are keeping the aforesaid articles in a bundle containing seal affixed by the court in their custody and they are bound by the conditions imposed upon them by virtue of the order passed by the learned Magistrate in CMP.No.758 of 2013 on 26.03.2013. As per the conditions imposed, they are obliged to return the aforesaid articles in the same manner as they Crl.M.C.No.7234/2019 11 received as and when required by the court. Another difficulty that is likely to arise, is to the effect that the bundle in which the aforesaid ornaments kept is weighing 1022 gms of gold which contained gold ornaments of a number of parties of more than 18 persons. Therefore, the identity of the articles in the absence of the said persons may give rise to various complaints at a later point of time and hence notice to all the persons are to be ensured, while the exercise of identification of the gold ornaments is carried out. In such circumstances, it is only appropriate that, some modalities for carrying out such exercise are to be provided for executing the same. Considering the facts and circumstances of the case, I am of the view that, since the exercise of identification is a matter to be carried at some point of time, it is always better that the said exercise to be done at the earliest. Considering the facts and circumstances of the case, this petition can be disposed of with following conditions: - (1) Annexure-A9 order passed by the learned Magistrate is hereby set aside and the matter is Crl.M.C.No.7234/2019 12 remanded back to be disposed of in terms with the directions hereinafter contained. (2) The learned Magistrate is directed to appoint an Advocate Commissioner for carrying out the exercise of identification of the gold ornaments, which is now in the custody of the 1[st] respondent bank, who shall be authorized to break open the seals affixed by the court in presence of any one of the officers of the court as authorized by the learned Magistrate. Expenses for carrying out such exercise including the batta payable to the Advocate Commissioner can be fixed by the learned Magistrate and the same shall be borne by the petitioners herein on one side as well as the 1[st] respondent bank in equal proportions. (3) The 1[st] respondent bank shall furnish the details with full address of all the persons whose gold ornaments are seized and kept in custody of the court/ bank, by filing a memo in this regard before the learned Magistrate. (4) Upon receipt of such details, the petitioners shall take steps to implead them in the petition and shall take steps to serve notice to them. The opening of the bundle in which the gold ornaments are kept should be carried out by the Advocate Commissioner, the officer authorized by the court in the presence of the petitioners, officers of the bank and also those persons whose gold ornaments are seized and makes Crl.M.C.No.7234/2019 13 themselves available at the time and place fixed for identification of the articles (5) The date and time for opening of the bundle and identification shall be fixed by the learned Magistrate (6) Upon opening of the bundle, the articles shall be identified by the Advocate Commissioner with the help of the bank authorities as well as the parties concerned. The entire articles so identified shall be separately packed and seals shall be affixed with reference to the ‘thondi numbers’ by showing the ‘thondi numbers’ as well as the name of the owner of the respective ornaments with brief description of the contents of the same on each packets. The gold ornaments which could not be identified due to the absence of any persons despite service of notice or due to any other reasons, shall be separately packed and sealed. Upon completing this exercise, the same can be kept in lockers provided by the bank. (7)Thereafter, the learned Magistrate can consider the claim of the petitioners herein for release of their gold ornaments and the same can be ordered to be released to them, provided, they produce a nonobjection from the 1[st] respondent bank to the effect that all the liabilities towards them in respect of all the transactions mentioned above have been cleared. While releasing the same, the learned Magistrate may impose such conditions with regard to the bond to be Crl.M.C.No.7234/2019 14 executed by the petitioners herein and such other conditions as he may deem fit, by taking into consideration the principles laid down in **Sundarlal Ambalal’s case** (supra) and **Suresh Serve’s case** (supra). (8) The learned Magistrate shall issue appropriate orders as he may deem it necessary for giving effect to and implementing this order. With the above observations, this Crl.M.C. is disposed of. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/14.2.22 Crl.M.C.No.7234/2019 15 ## _APPENDIX OF CRL.MC 7234/2019_ _PETITIONERs’ ANNEXURES_ - _ANNEXURE A1_ _THE TRUE COPY OF THE LOAN APPLICATION DATED 24/1/2011 ISSUED BY THE 1ST RESPONDENT IN THE NAME OF THE 1ST PETITIONER._ - _ANNEXURE A2 THE TRUE COPY OF THE LOAN APPLICATION DATED 24/1/2011 ISSUED BY THE 1ST RESPONDENT IN THE NAME OF THE 1ST PETITIONERS LATER HUSBAND._ - _ANNEXURE A3 THE TRUE COPY OF THE LOAN APPLICATION DATED 24/.1/2011 ISSUED BY THE 1ST RESPONDENT IN THE NAME OF THE 2ND PETITIONER._ - _ANNEXURE A4 THE TUE COPY OF THE RELEVANT PAGE OF THE GOLD LOAN LEDGER MAINTAINED BY THE 1ST RESPONDENT._ - _ANNEXURE 5 THE TRUE COPY OF THE COUNTER AFFIDAVIT DATED 25/07/2017 FILED BY THE 1ST RESPONDENT HEREIN IN W.P(C) 7599/2017._ - _ANNEXURE A6 THE TRUE COPY OF THE JUDGMENT DATED 09/08/2017 IN W.P(C) NO.7599/2017._ - _ANNEXURE A7 THE TRUE COPY OF THE CMP 46/2019 FILED BEFORE JFMC III THIRUVANANTHAPURAM._ - _ANNEXURE A8 THE TRUE COPY OF THE OBJECTION DATED 05/03/2019 FILED BY THE 1ST RESPONDENT IN CMP 46/2019 BEFORE THE JFMC-III THIRUVANANTHAPURAM._ Crl.M.C.No.7234/2019 16 - _ANNEXURE A9_ _THE CERTIFIED COPY OF THE ORDER DATED 03/07/2019 IN CMP NO. 46/2019 OF THE JFMC-III, THIRUVANANTHAPURAM._ - _ANNEXURE A10 THE TRUE COPY OF THE PLEDGE TOKEN DATED 24/01/.2011 ISSUED IN THE NAME OF THE 1ST PETITIONER._ _ANNEXURE A11 THE TRUE COPY OF THE PLEDGE TOKEN DATED 24/01/2011 ISSUED IN THE NAME OF THE 1ST PETITIONER'S HUSBAND._ _ANNEXURE A1 THE TRUE COPY OF THE PLEDGE TOKEN DATED 24/01/2011 ISSUED IN THE NAME OF THE 2ND PETITIONER._