IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933 WP(C).No. 30090 of 2011(I) -------------------------- PETITIONER(S): --------------- XAVI MANO MATHEW, MANAGING DIRECTOR, M/S.SOUTHERN FIELD VENTURES PVT.LTD., NEAR COTTON HILLS SCHOOLS, VAZHUTHACAUD, THIRUVANANTHAPURAM. BY SRI.K.RAMKUMAR BY ADV. SRI.P.V.ANIL RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE GOVT.PLEADER, HIGH COURT OF KERALA, ERNAKULAM- 682031. 2. THE CITY POLICE COMMISSIONER, THIRUVANANTHAPURAM CITY-696001. 3. THE ASST. COMMISSIONER OF POLICE, SHANGHUMUGHAM SUB DIVISION, THIRUVANANTHAPURAM- 695001. 4. THE DEPUTY SUPERINTENDENT OF POLICE, INTERNAL SECURITY INVESTIGATION, THIRUVANANTHAPURAM-695001. 5. ING VYSYA BANK, TRIVANDRUM BRANCH, 1ST FLOOR, R.V.TOWERS, PUNNE ROAD, SPENCER JUNCTION, PALAYAM, THIRUVANANTHAPURAM-695004. ADV. SRI.K.K.JOHN FOR R5 SRI.K.A.JALEEL, ADDL. A.G. FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30090 of 2011(I) APPENDIX PETITIONER(S) EXHIBITS : EXHIBIT P1: TRUE COPY OF THE FIR IN CR 458/2007 OF VANCHIYOOR POLICE STATION. EXHIBIT P2: TRUE COPY OF CMP 4656/2007 DATED 12-11-2007 ON THE FILE OF ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM. EXHIBIT P3: TRUE COPY OF THE INTERIM ORDER DATED 14-12-2007 IN CRMA 6699/07 IN CRMC 3748/2007 OF THIS HON'BLE COURT. EXHIBIT P4: TRUE COPY OF THE INTERIM ORDER DATED 19-12-2007 IN CRMA 6699/07 IN CRMC 3748/2007 OF THIS HON'BLE COURT. EXHIBIT P5: TRUE COPY OF THE REFER CHARGE FILED BY THE 3RD RESPONDENT BEFORE THE ACJM, THIRUVANANTHAPURAM. EXHIBIT P6: TRUE COPY OF THE COMMUNICATION ISSUED BY THE PUBLIC PROSECUTOR TO THE 2ND RESPONDENT DATED 31-12-2010. EXHIBIT P7: TRUE COPY OF THE ORDER DATED 22-7-2011 IN WPC 17228/2011 OF THIS HON'BLE COURT. EXHIBIT P8: TRUE COPY OF THE REPORT DATED 30-9-2011 SUMITTED BY THE 4TH RESPONDENT TO THE ACJM, THIRUVANANTHAPURAM. EXHIBIT P9: TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 4TH RESPONDENT TO THE ACJM. EXHIBIT P10: TRUE COPY OF THE LETTER DATED 4-11-2011 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P11: TRUE COPY OF THE ORDER DATED 4-10-2007 IN WPC 27821/2007 OF THIS HON'BLE COURT. EXHIBIT P11(A): TRUE COPY OF THE ORDER DATED 4-12-2007 IN WPC 27821/2007 OF THIS HON'BLE COURT. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A TO JUDGE ab PIUS C.KURIAKOSE & K.HARILAL,JJ ------------------------------------------------- W.P(C) No.30090 of 2011 -------------------------------------------------- Dated this the 28th day of November, 2011 J U D G M E N T Pius C. Kuriakose, J The petitioner who was arrayed as accused No.1 in Crime No.458/2007 of Vanchiyoor Police Station has filed this writ petition under Article 226 of the Constitution complaining that inspite of submission of Ext.P5 refer report under which it is reported that all the allegations in the original complaint pursuant to which the crime was registered by the Police are false. The police ie. respondents 2 to 4 are harassing him every now and then under the guise of re-investigating crime No.458/2007. It is also alleged that the police are insisting that the originals of three title documents pertaining to properties owned by him namely document No.732/05, 733/05 and 734/05 registered with the Sub Registry, Palode, Thiruvananthapuram, presently kept under the custody of the 5th respondent, ING Vysya Bank in connection with the equitable mortgage created by the petitioner as security for a loan contracted from the above bank are about to be taken away from the custody of the Bank by W.P(C) No.30090 of 2011 2 the 4th respondent. Hence this writ petition is filed with the following prayers: “i) That writ of mandamus or other appropriate Writ or order be passed directing respondents 2 to 4 not to harass the petitioner consequent to Ext.P5 and P8 in the interest of justice. ii) That Writ of mandamus or other appropriate Writ or order be passed restraining the 4th respondent from taking the original Sale deeds bearing No.732/2005, 733/2005, 734/2005 registered at the Sub Registry, Palode, Trivandrum from the custody of the 5th respondent which stands in the name of the petitioner, which is offered a security to the 5th respondent for availing a loan by this petitioner, in the interest of justice.” 2. We heard the submissions of K.Ramkumar, Senior counsel for the petitioner, Sri.K.A Jaleel, the learned Additional Advocate General for the State and the Police Officers and Sri.K.K.John for the 5th respondent Bank. Sri.K.Ramkumar the Senior Counsel submitted that in view of Ext.P5 wherein it is reported that the defacto complainant filed the complaint based solely on hearsay information and that the case is to be closed treating the same to be one of mistake of fact, the action of respondents 2 to 4 in insisting of the attendance of the petitioner and also on the 5th respondent Bank handing over the originals of the title documents to them is sheer harassment. Drawing our attention to Ext.P1 original FIR, the Senior Counsel submitted W.P(C) No.30090 of 2011 3 that in view of the obvious position that the signature of the petitioner does not figure in any of the three title documents, the petitioner cannot be accused of having forged or fabricated these documents. The Senior Counsel further submitted that the re-investigation which is purported to be done is totally unauthorized. The Senior Counsel also referred to Ext.P10 and submitted that pursuant to notice sent by the DYSP to the Bank Manager, they have supplied the DYSP with attested photocopies of all the three documents. The counsel referred to Section 91 of the Code of Criminal Procedure and submitted that in the case of banking institutions, insistence on the originals is totally unjustified. According to the Bankers Book Evidence Act, the Bank is competent to issue certified copies and the certified copies are to be deemed as the originals themselves. 3. Answering a query put by us, Sri.K.A.Jaleel, the learned Additional Advocate General submitted that it is in terms of Section 173(8) of the Code of Criminal Procedure that re- investigation is being conducted. The learned Additional Advocate General submitted that for further investigation under Section 173(8), the sanction of the Court is not necessary. But in this particular case by way of abundant caution the Court was W.P(C) No.30090 of 2011 4 moved and the Court has issued order. He placed before us a copy of the order issued by the Court. The order will show that on an application filed by the investigating officer, the DYSP, the learned Magistrate has granted permission to the investigating officer for re-opening R.C.No.1/2011 and sanction is granted for re-investigating crime No.458/2007 of Vanchiyoor Police Station (R.C No.1/2011). 4. Sri.K.K John the learned counsel for the 5th respondent Bank submitted that serious prejudice will be occasioned to the Bank if the Bank is asked to part with custody of the originals of the three title documents. About Rs.3.5 crores is due from the petitioner on account of the mortgage loan advanced to the petitioner and the properties covered by the three title documents is the main security. Mr.K.K.John also submitted that it is nobody's case that the signatures of the executant, which was seen in three documents are fake. Hence is not necessary to part with the originals. 5. But by way of reply, the Additional Advocate General submitted that the investigating agency will require the custody of the original documents at some stage of the investigation. He submitted that the safety of the original documents will be W.P(C) No.30090 of 2011 5 guaranteed by the investigating agency. The Additional Advocate General also submitted that the whole case revolves around these three documents and hence the three documents are of pivotal importance in this investigation. 6. We have anxiously considered the rival submissions addressed at the Bar. The question which arises before us for decision is whether the action of 2nd and 4th respondents in insisting on the attendance and co-operation of the petitioner in connection with the re-investigation of Crime No.458/2007 can be branded as harassment. We answer the question in the negative and therefore we decline the directions which is sought for under relief No.1 in the writ petition. At the same time we direct respondents 2 to 4 that if the attendance of the petitioner is required by any one of them in connection with re- investigation/ further investigation of Crime No.458/2007, they shall issue notice in writing to the petitioner. 7. We shall now deal with the remaining question whether relief No.2 is sought for in this writ petition is grantable. Despite the very persuasive submissions of the Additional Advocate General we are yet to be convinced as to why the police should insist on the custody of the originals of W.P(C) No.30090 of 2011 6 three title documents namely 732/2005, 733/2005 and 734/2005. At the same time we do not propose to decide on the grantability of relief No.2 ourselves. We permit the respondents 2 to 4 to move the learned Magistrate under Section 91. If an application under Section 91 is received by the Magistrate for getting custody of originals of three documents the learned Magistrate will issue notice to the Bank and to the petitioner and take a correct decision after hearing all the parties. PIUS C. KURIAKOSE JUDGE K.HARILAL JUDGE ab