IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 23RD DECEMBER 2011 / 2ND POUSHA 1933 Crl.MC.No. 3668 of 2011() ------------------------- CRMP.2136/2011 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER(S): -------------- KOSAMATTAM FINANCE PVT.LTD., MKC BUILDING, M.L.ROAD,MARKETY JUNCTION,KOTTAYAM -PIN 686001, REPRESENTED BY ITS MANAGING DIRECTOR, SRI.MATHEW K.CHERIAN, S/O.(LATE) K.C.CHERIYAN, RESIDING AT KOSAMATTAM HOUSE, MANGANAM P.O., KOTTAYAM-686018. BY ADV. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON RESPONDENT(S): (RESPONDENT/DEFACTO COMPLAINANT). ------------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. PREMA CHANDRASEKARAN, AGED 68 YEARS, W/O.CHANDRASEKHARAN, HOUSE NO.95, GIRINAGAR NORTH OPP.CENTRAL SCHOOL, KADAVANTHRA, ERNAKULAM DISTRICT - 682 020. R1 BY GOVT.PLEADER SRI.RAJESH VIJAYAN R2 BY ADV. SRI.GEORGE POONTHOTTAM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: BKA Crl.MC.No. 3668 of 2011() APPENDIX PETITIONER'(S) ANNEXURES: ANNEX.A COPY OF THE DETAILS OF THE GOLD ITEMS PLEDGED BY BINDU BALAN IN THE KALPETTA BRANCH AND ALSO THE DETAILS OF REPEATED PLEDGING OF GOLD ITEMS BY HER IN KALPETTA BRANCH. ANNEX.B COPY OF THE COMPLAINT PREFERRED BY THE 2ND RESPONDENT HEREIN BEFORE THE 2ND RESPONDENT HEREIN BEFORE THE POLICE. ANNEX.C COPY OF THE FIRST INFORMATION REPORT. ANNEX.D COPY OF THE SEIZURE MAHAZAR. ANNEX.E COPY OF THE PETITION BEARING NO.CR.MP.NO.2136/2011 IN CRIME NO. 942/2011. ANNEX.F COPY OF THE ORDER IN NO.CR.MP.NO.2136/2011 IN CRIME NO.942/2011. ANNEX.G COPY OF THE ORDER IN NO.CRL.MP.NO.2796/2011 DATED 26.09.2011. RESPONDENT'(S) ANNEXURES: NIL //TRUE COPY// PA TO JUDGE BKA N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. No: 3668 OF 2011 (A) ------------------------------------------ Dated this the 23rd day of December, 2011 O R D E R This petition is directed against the order passed by the learned Chief Judicial Magistrate as per which the gold ornaments which were procured by the Investigating Officer were ordered to be released to the second respondent. The second respondent filed a complaint before the Court below on 13.6.2011, alleging theft of 1.25 kilograms of gold ornaments and 25 kilograms of silver vessels. The allegation was made against one Damodaran, the husband of their former servant Chitra and against another lady Smt.Bindu Balan. Based on that complaint crime was registered by Kadavanthra Police Station. During investigation, detailed statement of the second respondent was taken. The accused Damodaran was arrested on 13.6.2011 from Kadavanthra. His statement was recorded by the Investigating Officer. Crl. M.C. No: 3668 OF 2011 (A) -2- 2. Smt. Bindhu Balan, the other accused was arrested by Vanitha Sub Inspector on 13.6.2011 at 7.30 PM. It is stated that based on the disclosure statement given by the accused Bindhu Balan, the police went along with her to Kalpetta as led by her. The police went to the non financial institution, the petitioner herein. It was revealed that the gold ornaments, mentioned in the complaint of the second respondent were pledged by the first accused, Smt.Bindhu Balan, for Rs.21,44,300/-. Those gold ornaments were thus seized as per the mahazar. It is stated that, thereafter, both accused were produced before Court. As sought for by the police, custody was given by the Court for interrogation. It was stated that the seized items were identified by the second respondent, the defacto complainant. It was already stated that silver ingot weighing 9.800 kilograms was also seized by the Investigating Officer. 3. When the second respondent filed a petition under Crl. M.C. No: 3668 OF 2011 (A) -3- section 451 Cr.P.C., the Court below ordered release of all the items mentioned in the petition to be released to the second respondent on executing a kychit for Rs.25,00,000/- each with two solvent sureties for the like amount. Further a condition was imposed that the second respondent shall not alter the shape of the articles and she shall produce those articles before the Court as and when directed. That Order was passed on 7.7.2011 in Cr.M.P. No: 2136/2011. 4. The petitioner herein, thereafter filed a petition before the Court below for releasing those articles stating that those articles were pledged by the second accused. It was stated that she used to pledge gold ornaments earlier also and those gold ornaments were returned to her upon prompt payment of the loan amount. According to the petitioner herein, from March 2010, the second accused Smt. Bindhu Balan was a customer of the petitioner Company and only because she was familiar to the Crl. M.C. No: 3668 OF 2011 (A) -4- petitioner Company the gold was permitted to be pledged. According to the petitioner five pledges were made on 21.12.2010. The Crime No:942/2011 was registered by Kadavanthara Police on 13.6.2011. It is not disputed that the police seized those gold ornaments from the petitioner's establishment. 5. The learned counsel for the petitioner submits that since the gold ornaments were seized from the petitioner, before ordering release of the same to the defacto complainant (the second respondent herein) notice should have been given to the petitioner but no notice was given. 6. The learned counsel for the second respondent and the learned Public Prosecutor would submit that it was based upon the complaint filed by the second respondent in June, 2011, the crime was registered and the two accused were arrested. It was based on her (A2's) disclosure statement the gold ornaments were seized. The fact that Crl. M.C. No: 3668 OF 2011 (A) -5- the person who committed theft of the gold ornaments pledged the same to a particular person or financial institution is no reason to say that whenever an application is filed for release of such articles, the person from whom stolen articles were recovered should also be made a party. The further fact that the petitioner moved the learned Magistrate about six months after seizure would also, according to the second respondent, tell upon the bona fides of the claim. The investigating officer found no difficulty to seize the articles based on the disclosure statement given by the second accused. 7. It is further pointed out that the investigation proceeded in the right direction. The articles were released to the second respondent only on certain conditions. Those articles were taken delivery by the second respondent on executing a kychit/bond. It is submitted by the learned counsel for the second respondent that as per the direction Crl. M.C. No: 3668 OF 2011 (A) -6- issued by the Court, all the articles have to be produced in Court in the same condition in which those articles were released to the second respondent. The fact that the petitioner/financier may sometimes suffer loss if the second accused does not re-pay the loan amount is no reason to say the gold ornaments should be given to the financier. Since prima facie the gold ornaments belonged to the second respondent, she is entitled to possess the same. 8. It is pointed out by the learned counsel for the second respondent that the petitioner-institution made no serious effort to find how the second accused Smt.Bindhu Balan could possess that much quantity of gold ornaments so as to pledge the same and to obtain very huge amount from the petitioner. It is further contended by the second respondent that the second accused who pledged the gold ornaments was not a permanent resident of Kalpetta and so that also should have been seriously taken note of by the Crl. M.C. No: 3668 OF 2011 (A) -7- petitioner while receiving such huge quantity of gold ornaments. Therefore, according to the second respondent, the financier cannot now lament over the matter. It is also argued on behalf of the second respondent that the second accused is not the owner of the goods pledged before the Bank and as such the financier cannot retain the gold ornaments with it for the simple reason that huge amount was lent by it to the second accused upon the stolen gold ornaments pledged before that financier. 9. Since the Order passed by the Court below is only under section 451 Cr.P.C., I find no reason to interfere with the same. In the result this petition is dismissed. N.K. BALAKRISHNAN, JUDGE jjj