Shyju Abraham Francis v. Noyal alias and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 7TH DAY OF MARCH 2014/16TH PHALGUNA, 1935** ## **OP(Crl.).No. 23 of 2014 (Q)** ## **-------------------------------------** **AGAINST ORDER DATED 23.08.2013 IN CMP NO. 1900/2013 IN M.P.NO.1706/2013 AND ORDER DATED 31.12.2013 IN CMP NO.2787/2013 IN CMP NO.1706/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT , KOLENCHERY.** **---------------------------** ## **PETITIONER/ACCUSED:** **-----------------------------------** **SHYJU ABRAHAM FRANCIS, AGED 34 YEARS, S/O. FRANCIS, CHANAPARAMBIL HOUSE, KAYYUTHIYAL KARA, KOOVAPADY VILLAGE, PERUMBAVOOR.** **BY ADVS.SRI.THOMAS M.JACOB SRI.AKHIL K.MADHAV SRI.T.R.JERRY SEBASTIAN** ## **RESPONDENTS/COMPLAINANT AND STATE:** **----------------------------------------------------------------** ## **1. NOYAL ALIAS,** **AGED 34 YEARS, S/O. LATE ALIAS CHACKO, THURUTHAL HOUSE, POOTHRIKKA, PUTHENCRUZ, ERNAKULAM DISTRICT - 682 308.** ## **2. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R2 BY GOVERNMENT PLEADER SMT. SAREENA GEORGE** **THIS OP (CRIMINAL) HAVING FINALLY HEARD ON 07-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **OP(Crl.).No. 23 of 2014 (Q) -------------------------------------** ## **APPENDIX** ## **---------------** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT-P1: TRUE PHOTOCOPY OF THE CERTIFIED COPY OF COMPLAINT FILED BY THE 1ST RESPONDENT BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLENCHERY.** **EXHIBIT-P2: TRUE PHOTOCOPY OF THE CERTIFIED COPY OF CMP NO.1900/2013 IN C.M.P NO.1706/2013.** **EXHIBIT-P3: TRUE PHOTOCOPY OF CERTIFIED COPY OF THE POSTAL COVER ISSUED FROM THE COURT BELOW TO THE PETITIOENR HEREIN/ACCUSED.** **EXHIBIT-P4: TRUE PHOTOCOPY OF THE CERTIFIED COPY OF ORDER DATED 23/08/2013 IN C.M.P NO.1900/2013 IN M.P NO. 1706/2013.** **EXHIBIT-P5: TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER TO RECALL THE SEARCH WARRANT, NUMBERED AS C.M.P 2787/2013.** **EXHIBIT-P6: TRUE PHOTOCOPY OF CERTIFIED COPY OF ORDER DATED 31/12/2013 IN C.M.P NO. 2787/2013 IN C.M.P 1706/2013.** **EXHIBIT-P7: TRUE PHOTOCOPY OF THE CERTIFIED COPY OF PROCEEDINGS IN C.M.P NO. 1706/2013.** **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------** ## **NIL** ## **//TRUE COPY//** ## **P.A.TO JUDGE.** Msd. K. RAMAKRISHNAN, J. -----------------------------------------------------------------O.P. (Crl). No.23 of 2014 --------------------------------------------------------------------Dated this the 7[th] day of March, 2014 ## J U D G M E N T This criminal petition is filed by the petitioner, who is shown as accused in a private complaint filed by the first respondent, challenging the order passed in Criminal M.P.No.1900/2013 in M.P.Nos.1706/2013 and 2787/2013 dated 23.8.2013 & 31.12.2013 on the file of the Judicial First Class Magistrate Court, Kolenchery, under Article 227 of the Constitution of India. 2. It is alleged in the petition that, the petitioner was working in Bangalore for several years. He started business in Ink and Catridge at Ernakulam. Since he had no landed property or permanent address here, he purchased a Hyundai Verna Fluidic Car in the name of his close friend, the first respondent, who is a permanent resident of Poothrikka. He paid the price for the car and he is also remitting the instalments to the financier. The vehicle and its records were delivered to the petitioner. O.P. (Crl). No.23 of 2014 2 The car was purchased in trust in the name of the first respondent and the petitioner is the actual owner of the vehicle. While so, the relationship between the petitioner and first respondent fell out. So the first respondent filed Ext.P1 complaint, as Criminal M.P.No.1706/2013 and also moved Ext.P2 petition as Crl.M.P.1900/2013 for issuing a search warrant to seize the vehicle and the learned magistrate passed Ext.P4 order on the assumption that the petitioner did not appear in spite of receipt of notice and issued a search warrant to seize the vehicle. Thereafter, the petitioner field Ext.P5 petition to re-call the search warrant and that was dismissed by the learned magistrate as per Ext.P6 order. Aggrieved by the same, the present petition has been filed by the petitioner seeking the following relief: “i. Set aside Ext.P4 order and all proceedings pursuant thereto, ii. Set aside Ext.P6 order and allow Ext.P5 petition as prayed for, iii. Declare that proceeding under Section 93 of Cr.P.C. cannot be used as a tool to decide the rival claims of ownership or to dispossess the petitioner from possession and enjoyment of the car bearing O.P. (Crl). No.23 of 2014 3 No.KL-40-H-8203, iv. Quash Ext.P2 petition and all proceedings pursuant thereto, v. Pass such other order or direction that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and vi. Direct the 1[st] respondent to pay cost of this proceeding to the petitioner.” 3. Though notice was served on the first respondent, he remained absent. 4. Heard the learned counsel for the petitioner and learned Public Prosecutor. 5. It is seen from the complaint that, the present petitioner has committed cheating and misappropriation and the vehicle was entrusted to him, which was not returned by the petitioner. The first respondent subsequently filed Annexure-P2 petition as Crl.M.P.no.1900/2013 for issuing a search warrant to SHO Puthenkuriz, to seize the car with Reg.No.KL-40-H/8203 and produce the same before the court under Section 93 of the Code of Criminal Procedure and it is seen from Ext.P2 O.P. (Crl). No.23 of 2014 4 that, notice has been issued to the petitioner and it is seen from the order of the magistrate in Ext.P4 that, though notice was issued to the respondent by registered post, he did not appear and so the magistrate presumed that, the petitioner has nothing to say in the matter and issued a search warrant as requested for in the petition to seize the vehicle. Thereafter, the petitioner filed Ext.P5 petition as Crl.M.P.No.2787/13, stating that the allegations of the complaint are not correct and in fact he is the real owner, though the registration stood in the name of the complainant and also narrated the circumstances under which that happened and requesting to withdraw the search warrant issued. He had also mentioned in the affidavit that he is prepared to produce the vehicle before the court as and when required. But the learned magistrate by Ext.P6 order dismissed the application on the ground that, if any order has been passed, that will amount to review of the earlier order passed and the petitioner has not challenged O.P. (Crl). No.23 of 2014 5 the earlier Ext.P4 order passed by that court. So, that prompted the petitioner to file this application. 5. The counsel for the petitioner submitted that, he had not received any notice and the magistrate himself was not satisfied with the allegations and decided to issue notice to the petitioner, who is a respondent in the application, seeking issuance of search warrant before passing an order. But later the learned magistrate proceeded on the basis that the notice has been served on him and he did not appear. But in fact, he has not received the notice. Since the counsel for the petitioner has a case that he had not served with the notice, this court has called for the records from the lower court and on verifications of the records, it is seen that, the notice sent by registered post to the petitioner in Crl.M.P.No.1900/2013 was returned with endorsement ‘not known’. Further according to the petitioner, he is working in Bangalore and he is not in the address shown in the notice as well and this fact was known O.P. (Crl). No.23 of 2014 6 to the complainant as well. So under the circumstances, it cannot be said that, he was served with notice and in spite of receipt of the notice he did not appear, as observed by the court below in both Ext.P4 and P6 orders. So under the circumstances, this court feels that, it is necessary in the interest of justice to set aside the orders passed in Ext.P4 and P6 and direct the magistrate to conduct an enquiry, as to whether search warrant need be issued at all and such an application is maintainable etc., after hearing the counsel for the petitioner, who is a respondent in the application in the lower court as well. So the petition is allowed and Ext.P4 and P6 orders passed by the court below in Crl.M.P. No.1900/13 and 2787/13 both in Crl.M.P. 1706/13 pending before that court are set aside and the magistrate is directed to conduct fresh enquiry in Crl.M.P.1900/2013, after hearing the counsel for the petitioner, who is a respondent in that application as well and also the counsel for the complainant and pass appropriate orders, in O.P. (Crl). No.23 of 2014 7 accordance with law. With the above direction and observation, the petition is allowed. Office is directed to communicate this order to the concerned court, immediately. Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss