IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 Crl.MC.No. 4611 of 2010() ------------------------- PETITIONER: --------------- M/S.MUTHOOT FINCORP LTD., KAYAMKULAM BRANCH, REPRESENTED BY THE MANAGER MARY OOMMEN, AGED 46, W/O.BIJU MATHEWS, M/S.MUTHOOT FINCORP LTD., KAYAMKULAM. BY ADV. SRI.C.P.UDAYABHANU RESPONDENT/COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY S.I.OF POLICE, KAREELAKULANGARA POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: ADV. SRI. K J MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.4611 of 2010 --------------------------------------- Dated this 14th day of January, 2011 ORDER Petitioner is a financing institution engaged in advancing money on the security of gold loan. While so, one Ratheesh availed loan from its Kayamkulam branch to the tune of Rupees Twenty Seven Lakhs and Odd on the security of gold ornaments. Later, Kariyilakulanagara police registered a case against the said Ratheesh in crime Nos.166, 416, 421 and 425 of 2010 for offence punishable under Sec.420 r/w 34 of the Penal Code. According to the police, Ratheesh collected gold ornaments from various persons offering to give gold yam. It is the further case of the investigating agency that Ratheesh had pledged ornaments with M/s. Kosamattam Financiers and later on petitioner advancing money to the said Ratheesh, the latter redeemed pledge from Kosamattom Financiers and pledged it with petitioner. Respondent served notice on 02.11.2010 on petitioner, issued by the learned Judicial First Class Magistrate, Haripad directing petitioner to produce gold ornaments covered by receipt Nos.28140 and 28141 in the said court. That notice (Annexure-A2) is under challenge. It is contended that issue of Crl.M.C.No.4611 of 2010 -: 2 :- notice violates right and interest of petitioner. Petitioner has also an apprehension that if the ornaments are detained in the court indefinitely that will cause damage and injury to the petitioner. Learned counsel submitted that in case petitioner has to produce the ornaments in court, learned Judicial First Class Magistrate may be directed to return the gold ornaments to the petitioner with petitioner undertaking to produce the same as and when required by the court. Learned Public Prosecutor submitted that serious offences have been committed with respect to the ornaments in question and that there is no illegality in learned Magistrate issuing Annexure-II, notice. 2. I am unable to accept the contention that there is anything illegal or irregular in Annexure-II, notice in view of the power conferred on the police and investigating officer under Sec.91 of the Code of Criminal Procedure. But, other apprehensions raised by the petitioner is required to be considered. The Supreme Court in Sunderbhai Ambalal Desai Vs. State of Gujrat (AIR 2003 SC 638) has provided guidelines as to how material objects including valuable articles are to be retained in court or disposed of. I do not think it necessary in this proceeding to issue any direction to the learned Magistrate as to how the property has to be kept in proper Crl.M.C.No.4611 of 2010 -: 3 :- custody as provided under law. I make it clear that it is open to the petitioner to move application for interim custody if petitioner is otherwise entitled to such custody and if any other person makes any claim for such custody necessarily, learned Magistrate has to give notice to the petitioner before any order is passed on such application. If disposal of such application is delayed indefinitely, it is also open to the learned Magistrate to consider whether, safety of the gold ornaments requires it to be deposited in the Treasury or such other place as law permits. Learned counsel submits that petitioner is prepared to produce the ornaments in court pursuant to Annexure -II, notice within two weeks from the date of receipt of a copy of this order. Submission is recorded. This criminal miscellaneous case is disposed of with the above direction. (THOMAS P JOSEPH, JUDGE) Sbna/-