IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 Crl.MC.No. 376 of 2011() ------------------------ CRL.MP.126/2011 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM CRIME NO.108/2011 OF PANANGAD POLICESTATION .................... PETITIONER(S)/PETITIONER/ACCUSED: --------------- C.S.SHAJIL KUMAR, S/O. SHANMUGAN, AGED 34 YEARS, CHETTIPARAMBIL HOUSE, THYKOODAM, VYTTILA P.O., KOCHI-682 019, POONITHURA VILLAGE AT KANAYANNOOR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.C.VALSALAN RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY STATION HOUSE OFFICER, PANANGAD POLICE STATION, PANANGAD, ERNAKULAM DISTRICT, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.376 of 2011 -------------------------------------- Dated this the 16th day of February, 2011. ORDER Petitioner is accused in Crime No.108 of 2011 of Panangad Police Station for offences punishable under Sections 406, 420 and 506(i) of the Indian Penal Code and Section 13 of the Money Lenders Act. Case is that on Annexure-A5, complaint preferred by one Muhammed, to the Inspector General of Police stating that as security for a loan he availed from the petitioner he had executed Annexure-A3, assignment deed in favour of petitioner on 11.03.2009 but the petitioner against the belief given to him has not reconveyed property on repayment of the loan. The Police registered case, investigated and seized several registers and gold ornaments, signed blank stamp papers, etc. from the house of petitioner as per Annexure-A7. Since it was revealed that petitioner is engaged in money lending and that he, as against conditions of licence kept the said articles in his house, Section 13 of the Money Lenders Act was also incorporated in the FIR. Petitioner filed Crl.M.P.No.126 of 2011 in the court of learned Additional Chief Judicial Magistrate, Ernakulam for return of the articles seized from his custody. Learned Additional Chief Judicial Magistrate, Ernakulam dismissed that petition by Annexure-A9, order dated February 3, 2011 which is under challenge. Learned counsel contends that petitioner is a licensed money lender as revealed from Annexures-A1 and A2 (allegation Crl.MC No.376/2011 2 against petitioner is that he kept the articles not in the licensed premises). Learned counsel further contends that petitioner finds it difficult to answer his customers who are pressurizing him to return their ornaments. Reliance is placed on the decision of the Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat (AIR 2003 SC 638). Learned Public Prosecutor contended that investigation of the case is not completed. In the decision referred to above, the Supreme Court has stated guidelines to be followed when an application under Section 451 of the Code of Criminal Procedure is preferred. The specific directions in that regard are given in paragraph 7 of the decision. 2. It is not disputed by petitioner also that the items referred to in Annexure-A7 were seized from his residence. He does not dispute the identity of the said items. It is submitted by the learned counsel that item No.99 in Annexure-A7 is a wedding ring which is required to be given to the party concerned immediately. Having regard to the facts and circumstances and nature of the contentions advanced by both sides I am inclined to release the gold items seized as per Annexure-A7, but subject to stringent conditions. Resultantly this petition is allowed in the following lines: i. The gold items mentioned in Annexure-A7 shall be returned to the petitioner subject to the following conditions: Crl.MC No.376/2011 3 (a) Petitioner shall at his expense produce colour photographs of each item of gold referred to in Annexure-A7, attest the same by himself and produce the same in court. (b) The Chief Ministerial Officer of the court concerned shall verify the gold ornament and photograph with the relevant registers seized and ensure its identity. (c) Petitioner shall execute bond for the value of gold items ( I am told that it weighs 1.250 kg.) in accordance with the present market rate with two solvent sureties for the like sum each to the satisfaction of the court below. (d) Petitioner shall file affidavit in the trial court admitting identity of the gold items referred to in Annexure-A7 as shown in the photographs referred to above and stating that he will not raise any dispute as to its identity in the course of trial. (e) The affidavit shall also mention that if any person other than those referred to in the registers make any claim over any item of the gold, petitioner and his other properties shall be liable to such persons. (f) If any of the persons mentioned in the registers seeks release of the gold item from the petitioner, petitioner shall obtain permission of the learned Additional Chief Judicial Magistrate, Ernakulam before releasing it. Learned Additional Chief Judicial Magistrate may impose appropriate conditions in the Crl.MC No.376/2011 4 matter, if found necessary. (However, from the said direction item No.99 is excluded as it is required to be released to the party concerned immediately. Petitioner shall, regarding that item file affidavit of the party concerned before the learned Additional Chief Judicial Magistrate stating that he is the person who has pledged the said gold item with the petitioner and would return it to court as and when so directed. ii. So far as the cash in deposit is concerned, it is directed that petitioner shall produce photographs of the currency notes, attest the same as above stated and mention in the affidavit that its identity will not be disputed at the time of trial. Thereon the cash in question shall be deposited in the Treasury or other nationalized bank in the name of the court below for appropriate period as may be fixed by the court below. THOMAS P.JOSEPH, Judge. cks