Sivakumar and Suresh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **TUESDAY, THE 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939** **OP(Crl.).No. 465 of 2017 (Q)** **------------------------------------------** ## **CRL.M.P.NO. 21/2016 IN S.T.NO. 8/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, IRINJALAKUDA** **--------------** **PETITIONER(S) : --------------------------** **1. SIVAKUMAR, AGED 42 YEARS, SON OF KANJIRAPARAMBIL VEETTIL KRISHNANKUTTY, KAIPAMANGALAM VILLAGE, KODUNGALLUR-680 681.** **2. SURESH,** - **AGED 53 YEARS, S/O.KANJIRAPARAMBIL VEETTIL KRISHNANKUTTY, KAIPAMANGALAM VILLAGE, KODUNGALLUR-680 681.** **BY ADVS. SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL KUM.ANAGHA LAKSHMY RAMAN** **RESPONDENT(S) :** - **----------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 10-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** ## **OP(Crl.).No. 465 of 2017 (Q) ----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: COPY OF THE SALE DEED NO.1121/2005 DATED 26-03-2005.** **EXHIBIT P2: COPY OF THE JUDGMENT DATED 20-10-2014 IN S.T 8/2014 IN LPR 129/2007 IN S.T 383/2005 OF JUDICIAL 1ST CLASS MAGISTRATE COURT, IRINJALAKUDA.** **EXHIBIT P3: COPY OF THE JUDGMENT DATED 16-08-2016 IN CRL.M.P. 21/2016 IN S.T 8/2014 IN LPR 129/2007 IN S.T 383/2005 OF JUDICIAL 1ST CLASS MAGISTRATE COURT, IRINJALAKUDA.** **EXHIBIT P4: COPY OF ENCUMBRANCE CERTIFICATE NO.9154/2016 DATED 03-11-2016 ISSUED BY S.R.O., MATHILAKAM.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE.** **Msd.** ## **(C.R)** **ALEXANDER THOMAS, J.** ================== O.P(Crl.) No. 465 of 2017 ================== Dated this the 10[th] day of October, 2017 **J U D G M E N T** The 2[nd] petitioner herein was arrayed as accused No.2 for offence punishable under Sec.138 of the Negotiable Instruments Act in S.T.No. 383/2015 on the file of the Judicial First Class Magistrate's Court-II, Irinjalakuda. The two accused therein were alleged to be partners of a partnership firm, from whose account the dishonoured cheque in question was issued to the complainant therein. According to the accused, they had not received summons. That as the accused persons did not appear before the trial court, non-bailable warrants were issued against them and later the case was included in the long pending case list as L.P.R.No.129/2007 and proceedings under Secs.82 and 83 of the Cr.P.C. were also initiated against the said accused persons. It is not in dispute that, in pursuance of the said proceedings under Secs.82 and 83 of the Cr.P.C., the trial court had ordered attachment of the property said to have been belonging to the 2[nd] petitioner as per order dated 30.9.2006. Later, the accused persons had settled the disputes with the complainant in relation to the dishonoured cheque in question involved in the complaint and the agreed amount was paid to the complainant and the complainant had filed an application under Sec.257 of the Cr.P.C. to withdraw the complaint. By that time, the case was ref-filed as S.T.No. 8/2014 on the file of the abovesaid Judicial O.P(Crl)465/17 - : 2 :- First Class Magistrate's Court. The trial court as per Ext.P-2 order dated 20.10.2014 had allowed the application filed by the complainant as Crl.M.P.No. 128/2014 for withdrawing the complaint and accordingly, the accused persons therein were acquitted under Sec. 257 of the Cr.P.C. 2. According to the 2[nd] accused, even long prior to the attachment order dated 30.9.2006, he had sold his property as per Ext.P-1 sale deed dated 26.3.2005 in favour of the 1[st] petitioner after receiving full consideration thereof, and the said sale deed has been duly registered by SRO, Mathilakam, on 26.3.2005. The 2[nd] petitioner would aver that he was not aware about the impugned order of attachment dated 30.9.2006 and moreover, he did not have any contact with the Revenue officials concerned, as he had already sold his property as per Ext.P-1 as early as on 26.3.2005. According to the 1[st] petitioner, after the registration on Ext.P-1 sale dated 26.3.2005, his land tax has been accepted by the competent Revenue/Village Officer concerned and that recently, when he wanted to sell his property, he contacted the Village Officer concerned and thereupon, he came to know that the property covered by Ext.P-1 has been attached by the criminal trial court on 30.9.2006 in pursuance of the abovesaid complaint proceedings. Accordingly, the 2[nd] petitioner had filed an application as Crl.M.P.No.21/2016 in the abovesaid S.T.No. 8/2014 praying that the attachment order may be lifted, etc. The trial court as per Ext.P-3 impugned order dated 16.8.2016 has rejected the said plea made by the 2[nd] O.P(Crl)465/17 - : 3 :- petitioner by holding that Sec.85 provides a specific remedy to the 2[nd] petitioner and that in terms of the provisions of the statute the 2[nd] petitioner should have appeared before the trial court within 2 years from the date of attachment and should have proved that he had not absconded or concealed himself for the purpose of avoiding execution of the warrant and that he had no notice of proclamation to enable him to attend the court within the time specified therein. Accordingly, the trial court has dismissed the application made by the 2[nd] petitioner for lifting of the attachment. The trial court also placed reliance on the judgment of this Court in _**Babu v. State of Kerala**_ , reported in 2011(3) KLT 383. 3. This case was admitted on 22.8.2017, on which day, this Court had directed that status quo as regards the the property, which is referred to in the impugned Ext.P-3 proceedings, shall be maintained by the competent authorities concerned. Further this Court had also directed the learned Prosecutor to get a report from the SRO concerned in respect of Ext.P-1 sale deed said to have been executed on 26.3.2005 and also state whether the said property was conveyed by the 2[nd] petitioner to the 1[st] petitioner on 26.3.2005. The learned Prosecutor was also requested to ascertain from the competent Revenue authorities concerned whether the property, which was the subject matter of the attachment referred to in Ext.P-3, is the one covered by Ext.P-1 sale deed dated 26.3.2005. The Registry was also directed to get a report from the trial court concerned as O.P(Crl)465/17 - : 4 :- to the details of the property which was the subject matter of attachment and the trial court was directed to make available the lower court records. 4. Heard Sri.Legith T.Kottakkal, learned counsel appearing for the petitioners and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent State. 5. The learned Prosecutor on the basis of the instructions from the Sub Registrar's Office (SRO) concerned, has stated that the property concerned in survey No.246/1 Kaipamangalam village was attached by the Tahsildar, Kodungallur, vide proceedings No.B4-1259/2007 as directed by the Judicial First Class Magistrate's Court-II, Irinjalakuda, as per order dated 5.12.2006 in S.T.No. 383/2005. Further, the learned Prosecutor has also submitted on the basis of the instructions from the Tahsildar concerned that the property in question was already sold and transferred by the 2[nd] petitioner in favour of the 1[st] petitioner as per Ext.P-1 registered sale deed dated 26.3.2005 and that the said sale deed has also been registered by the SRO concerned on 26.3.2005. It was only later, that the learned Magistrate had issued the impugned attachment order dated 30.9.2006. This order has been passed on the erroneous factual assumption that the said property then belonged to the 2[nd] petitioner and the 1[st] petitioner was not an accused or surety in the abovesaid proceedings and the property was already sold to him by the 2[nd] petitioner as early as on 26.3.2005. Therefore, as on the date the attachment order was passed O.P(Crl)465/17 - : 5 :- (30.9.2006), the learned Magistrate could not have lawfully attached the property, which is belonged to a person other than the accused or surety who is facing Secs.82 and 83 Cr.P.C. proceedings. For this reason alone, the impugned attachment order is illegal and improper. 6. There is yet another aspect of the matter. A perusal of the trial court papers reveals that the dishonoured cheque in question has been issued by a partnership firm, M/s.Sangeetha Sarees & Readymade and that the cheque in question has been signed and executed by the two accused in the complaint, who are the managing partner and partner respectively of that firm. So it is evidently clear that the drawer of the dishonoured cheque in question involved in the complaint is a partnership firm and, therefore, going by the dictum laid down in clear and unequivocal terms by the Apex Court in the celebrated judgment in _**Aneeta Hada v. Godfather Travels & Tours Pvt. Ltd.**_ reported in (2012) 5 SCC 661, a criminal complaint under Sec. 142 of the N.I. Act could have been maintained in respect of a dishonoured cheque issued by a partnership/ company only if the partnership firm is arrayed as accused, apart from the partners concerned. In the instant case, a perusal of the complaint would make it clear that only the managing director and the partner (who are arrayed as the two accused) and the partnership has not been arrayed as an accused. Therefore, going by the dictum laid down by the Apex Court in the abovesaid decision in _**Aneeta Hada's case**_ supra, the complaint was not O.P(Crl)465/17 - : 6 :- maintainable and was liable to be thrown out on the sole ground of nonarraying of the drawer of the said firm. Therefore, the impugned attachment order was also without jurisdiction inasmuch as the complaint itself could not have been legally maintainable. Still further the two accused have fully settled the disputes with the complainant and Ext.P-2 makes it clear that the complainant himself has already withdrawn the complaint and the trial court has acquitted the 2[nd] petitioner and the other accused as per Ext.P-2 order dated 20.10.2014. 7. Sec. 85 of the Code of Criminal Procedure, 1973, reads as follows: _**“Sec.85: Release, sale and restoration of attached property.-** (1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment._ _(2) If the proclaimed person does not appear within the 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._ _(3) 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, or the Court to which such Court is subordinate, and proves to the 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.”_ 8. This Court in the decision in _**Babu v. State of Kerala**_ , O.P(Crl)465/17 - : 7 :- reported in 2011 (3) KLT 383, has _inter alia_ held that the provision contained in Sec.85 of the Cr.P.C. only requires that the proclaimed offender must voluntarily appear or is brought before the court within two years of the date of attachment and and it is proved to the satisfaction of such court either that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant or that he had no notice of the proclamation and that said twin conditions are satisfied, the court which ordered the attachment, has no option but to order release of the property, etc. That of course, the question whether in the meantime property which was at the disposal of the Government has been sold also, would arise and if the property is not sold, the court can release attachment and direct its restoration and, if the whole or any portion of the property is sold by the Government, the court has the power to order release of the residue and/or the sale proceeds after defraying the costs. That the period of 2 years mentioned in sub-sec.(3) of Sec.85 of the Code is not a period of limitation and it is one of the twin conditions precedent for the person proclaimed to comply before requesting the court to release the attached property, or, the sale proceeds as the case may be. That if , the period mentioned in sub-se. (3) of S.85 is not a period of limitation, but one of the twin conditions precedent, application of Secs.4 to 24 of the Limitation Act to the said period of two years in Sec.85 (3) does not arise and on expiry of the said two years from the date of attachment, the Court loses jurisdiction to order O.P(Crl)465/17 - : 8 :- restoration of the property, etc. It has also been held inter alia in para 19 of the said decision that on the happening of the contingency referred to in Sec.85(2) of the Cr.P.C., the property attached “ _shall be at the disposal of the State Government_ ” and that attachment by itself does not confer title but only prevents alienation and when the property attached is placed at the disposal of the Government, it does not pass title over the property to the Government and there is no vesting of title with the Government, but it only gives the Government the right for enjoyment of income from the property during continuance of attachment and by virtue of sub sec.(2) of S.85 of the Code, the Government has the power to sell the attached property, subject to the conditions mentioned therein, etc. 9. The scope and ambit of Sec. 85(2) of the Cr.P.C. has also been dealt with in the decision of the Apex Court in _**Vimalben Ajibai Patel v. Vatslabeen Ashokbhai Patel**_ reported in 2008 (4) SCC 694 as well as the Division Bench decision of this Court in _**Moideen v. Sub-Inspector of Police**_ , reported in 2010 (3) KLT 886. 10. It is true that if the property had belonged to the 2[nd] petitioner (accused), then certainly the restrictions in Sec.85(3) of the 89 Cr.P.C. that the accused should have appeared before the criminal trial court within two years from the date of attachment, etc. would have been squarely applicable. In the instant case, the property never belonged to the 2[nd] petitioner (accused) at the time of attachment. In such a scenario certainly O.P(Crl)465/17 - : 9 :- the dictum laid down by this Court in the decision in _**Babu v. State of Kerala**_ , reported in 2011 (3) KLT 383, would not apply. As the 2[nd] petitioner accused was not the owner of the property at the time of the impugned attachment order, the abovesaid restrictions in Sec. 85(3) of the Cr.P.C., will have no application to the facts of this case, inasmuch as the 1[st] petitioner, who had nothing to do with the impugned criminal proceedings, happened to be the absolute owner of the property on and with effect from 26.3.2005, which is much prior to the issuance of the impugned attachment order dated 30.9.2006. 11. Sec.84 of the Code of Criminal Procedure, 1973, with its provisos reads as follows: _**"Sec.84: Claims and objections to attachment.-** (1) If any claim is preferred to, or objection made to the attachment of, any property attached under Section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under Section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part:_ _Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative._ _(2) Claims or objections under sub-section (1) may be preferred or made in the Court by which the order of attachment is issued, or, if the claim or objection is in respect of property attached under an order endorsed under subsection (2) of Section 83, in the Court of the Chief Judicial Magistrate of the district in which the attachment is made._ _(3) Every such claim or objection shall be inquired into by the Court in which it is preferred or made:_ _Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make it over for disposal to any Magistrate subordinate to him._ _(4) Any person whose claim or objection has been disallowed in whole or in part by an order under sub-section (1) may, within a period of one year_ O.P(Crl)465/17 - : 10 :- _from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive.”_ 12. It is also true that for persons like the 1[st] petitioner, who are not accused to the impugned criminal proceedings have an alternative statutory remedy in terms of Sec.84(1) of the Cr.P.C. According to the 1[st] petitioner, availability of a statutory remedy is not a bar for this Court to exercise discretionary constitutional powers conferred under Art.227 of the Constitution of India. The 1[st] petitioner had nothing to do with the complaint proceedings and he became the absolute owner of the property long prior to the date of issuance of the impugned attachment order. The complaint itself has been withdrawn and the complaint was not maintainable due to non arraying of the partnership firm, etc. For all these reasons, this Court is of the considered opinion that the discretionary powers conferred on this Court under Art.227 of the Constitution of India could be befittingly invoked in the facts and circumstances of this case. Accordingly, it is ordered that the impugned attachment order dated 30.9.2006 will stand set aside and resultantly it is also ordered that the impugned Ext.P-3 dated 16.8.2016 will stand set aside and rescinded. All consequential proceedings issued by the Revenue authorities concerned like the Tahsildar, District Collector, SRO, etc. for giving effect to the impugned attachment order passed by the learned Magistrate will also stand set aside and rescinded. The petitioners will produce copies of this O.P(Crl)465/17 - : 11 :- judgment before the competent Revenue authorities concerned like Tahisdar, SRO, Village Officer, etc. and thereupon, the said authorities will issue necessary orders to delete the endorsement regarding the attachment order, which has now been set aside by this Court. The Registry will return the LCR along with a copy of this judgment to the trial court for necessary information. With these observations and directions, the aforecaptioned Original Petition (Crl.) stands finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge