V.V. Kuttimalu Amma vs State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942** ## **WP(C).No.19011 OF 2020(B)** ## **PETITIONER/S:** **V.V.KUTTIMALU AMMA, AGED 72 YEARS, W/O.LATE KRISHNAN NAIR,SOORAJ NIVAS, DURGA ROAD,PALLIKKUNNU,KANNUR. BY ADVS. SRI.M.RAMESH CHANDER (SR.) SMT.K.A.SANJEETHA SRI.BALU TOM SRI.BONNY BENNY SHRI. BEJOY JOSEPH P.J.** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT OF**| ||**KERALA, THIRUVANANTHAPURAM-695001.**| |**2**|**SUB INSPECTOR OF POLICE,**| ||**KANNUR TOWN POLICE STATION,**| ||**KANNUR DISTRICT-670001.**| |**3**|**CHIEF EXECUTIVE,**| ||**KANNUR DISTRICT POLICE-CO-OPERATIVE SOCIETY,**| ||**KANNUR TOWN,**| ||**KANNUR-670002.**| ||**R1-R2 BY GOVERNMENT PLEADER**| ||**R3 BY ADV. SRI.M.SASINDRAN**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.19011 OF 2020(B) 2** ## **J U D G M E N T ~~~~~~~~** ## **“CR”** The petitioner, a senior citizen, is maintaining an account with the Kannur District Co-operative Society Ltd. She had deposited in the said bank a total sum of Rs.20 lakhs by way of two fixed deposits of Rs 10 Lakhs each on 19.2.2018. The deposits were due to mature in 181 days. On 1.9.2020, the petitioner approached the Bank and demanded that one of the fixed deposits be closed and a sum of Rs.10 Lakhs be transferred to a savings bank account. However, she was informed by the Secretary that her bank account has been seized on orders of the Sub Inspector of Police, Kannur Town Police in connection with Crime No.1214/19 registered against her son under Sections 409 and 420 of the I.P.C. The said order is under challenge in this petition. She also seeks for a direction to the bank to act upon her representation and transfer the amount in one of the fixed deposits to a savings bank account, essentially on the ground that the amount lying in her account has no direct nexus with the acts committed by her son. 2. It is the case of the petitioner that she had obtained an item of property on the strength of the family partition deed and the same was sold by her to a certain Preeshma Vivek for a total consideration of Rs.20 lakhs on **WP(C).No.19011 OF 2020(B) 3** 12.2.2018. This fact is evident from Exhibit P1. On receipt of the said amount, she deposited the same in the 3rd respondent Bank by splitting the same into two fixed deposits of Rs.10 lakhs. The fixed deposits matured on 19.8.2018. She states that as per the communication issued to the bank by the Sub Inspector of Police, her son, while he was working as a sales man in the bank misappropriated a sum of about Rs.12,15,413/ and thereby cheated the bank. The petitioner states that the money deposited by the petitioner being the sale consideration of the properties assigned by her and the same having been deposited even prior to the alleged misappropriation of the amounts by her son, the seizure of her bank account is illegal. According to the petitioner, the account was seized merely on surmises and conjectures and not on the basis of any tangible materials. 3. In the statement filed by the 2nd respondent it is stated that the son of the petitioner was an employee of the society since 2.3.2018 and while holding complete charge of the sale and distribution of LPG cylinders, manipulated the records and misappropriated a total sum of Rs.13,57,896/during the period from 1.4.2018 to 31.3.2019 during the financial year 2018 – 2019 and from 1.4.2019 to 16.11.2019 during the financial year 2019 -2020. According to the respondent, for the purpose of Section 102 of the Code, the bank accounts or postal account of the accused or any of his relatives would be a “property” and the investigating officer is well empowered to seize any amount or account or to prohibit its operation. 4. A counter affidavit has also been filed by the secretary in charge of ## **WP(C).No.19011 OF 2020(B) 4** the society wherein the details of misappropriation committed by the son of the petitioner is reiterated. The 3rd respondent has also produced the communication dated 3.9.2020 issued by the Sub Inspector of Police by which the account of the petitioner was seized. 5. I have anxiously considered the submissions advanced and have meticulously gone through the entire records. 6. Before deal with the matter further, it would be profitable to refer to Section 102 of the Code which reads as follows : - “ 102. Power of police officer to seize certain property.- - (1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the Commission of any offence. - (2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer. - (3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when **WP(C).No.19011 OF 2020(B) 5** required and to give effect to the further orders of the Court as to the disposal of the same: Provided that where the property seized under sub- section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.” 7. S.102(1) empowers any police officer to seize any property which may be alleged or suspected to have been stolen or which may be found under the circumstances which create suspicion of the commission of any offence. Sub-s. (2) of S. 102 stipulates that if the officer who seizes the property is subordinate to the officer in charge of a Police Station he should forthwith report the seizure to the officer in charge of the Police Station. Subs. (3) lays down that every police officer acting under sub-s. (1) shall forthwith report about the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the court and when required and to give effect to the further orders of the court as to disposing ## **WP(C).No.19011 OF 2020(B) 6** of the property. There cannot be any doubt that the bank account of the accused or any of his relative is ‘property’ within the meaning of S.102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such asset has direct links with the commission of the offence for which the police officer is investigating into. ( **State of Maharashtra v. Tapas D. Neogy** [(1999) 7 SCC 685]) . However , it is also trite that under Section 102 of the Code, the police officer can seize such property which is covered by Section 102(1) and no other.(See **M.T. Enrica lexie v Doramma** [JT 2012 (4) SC 608]. 8. The underlying object of the provision is that if there can be no order of seizure of the bank account, then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of an illegal or prohibited act could be withdrawn by the accused and the courts would be powerless to get to the money and order confiscation or deliver to the person entitled to the custody thereof as the case may be, at the appropriate stage of the criminal proceedings. 9. In **Madhu V Sub Inspector of Police** [2020 (5) KLT 483], a learned Single Judge of this Court had occasion to observe that the power to seize a bank account could be justifiably exercised when the Police Officer has reasonable grounds to believe that the property has direct nexus with the offence in question. It was further held that the Police Officer acting under S.102 of the Cr.P.C. cannot arrogate to himself an unregulated and **WP(C).No.19011 OF 2020(B) 7** unbridled power to freeze the bank account of a person on mere surmise and conjuncture since such unguarded power may bring about drastic consequences affecting the right of privacy as well as the reputation of the account holder. 10. In the case on hand, the records reveal that the petitioner received a sum of Rs.20 lakhs towards the sale consideration pursuant to execution of a sale deed on 12.2.2018. The said amount was deposited by her with the 3rd respondent. Going by the statement filed by the Investigating officer, the son of the petitioner joined the particular society only on 2.3.2018, much after the sale transaction in favor of the petitioner. Furthermore , the specific allegation against the son of the petitioner is that he had carried out manipulation and falsification of records and misappropriated a sum of Rs.13,57,896/- during the period from 1.4.2018 to 31.3.2019 and thereafter from 1.4.2019 to 16.11.2019. By no stretch of imagination can it be said that the amount lying in the account of the petitioner has any direct nexus of link with the amount misappropriated by her son. 11. It is thus luculent that the investigating officer has proceeded to issue R3(a) notice without carefully evaluating whether the amount lying in the account of the petitioner has any direct nexus or link with the alleged misappropriation by her son. This arbitrary act of seizure of her Bank account without reasonable cause and adequate materials and by depriving her to **WP(C).No.19011 OF 2020(B) 8** use her money in the manner she chooses, albeit, for a brief period has affected her property rights. Furthermore, I have no doubt in my mind that the seizure effected in the instant case is clearly against the provisions of the Code. In that view of the matter, the order issued by the Sub Inspector to the 3rd respondent Bank will stand quashed and the 3rd respondent is directed to release the amount sought for by the petitioner as per Exhibit P3 representation forthwith. **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** DSV/15.12.2020 **WP(C).No.19011 OF 2020(B) 9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **PHOTOSTAT COPY OF THE 1ST PAGE OF THE REGISTERED DOCUMENT DATED 12.02.2018.** **EXHIBIT P2 PHOTOSTAT COPY OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT DATED 19.02.2018.** **EXHIBIT P3 PHOTOSTAT COPY OF THE REPRESENTATION DATED 01.09.2020 TO THE 3RD RESPONDENT. EXHIBIT P4 PHOTOSTAT COPY OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT DATED 24.08.2019.** **EXHIBIT P5 PHOTOSTAT COPY OF THE ORDER IN BA 8863/2019 DATED 19.08.2020.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3(a) A TRUE COPY OF THE COMMUNICATION DATED 3.9.2020 ISSUED BY THE INVESTIGATING OFFICER IN CRIME NO. 1214 OF 2019 OF KANNUR TOWN POLICE STATION.** /TRUE COPY/ P.A. TO JUDGE