IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 Crl.MC.No. 2149 of 2009() ------------------------------------- CMP.NO.7831/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,TIRUR CRIME NO.546/2008 OF KUTTIPPURAM POLICE STATION. ............. PETITIONER(S): COMPLAINANT: ------------------------------------------------ T.M.ABDUL SALAM, AGED 40 YEARS, S/O.THEEPOTHAYIL MOHAMMEDKUTTY HAJI, THEEPOTHAYIL HOUSE, PADITHEREMURI AMSOM, DESOM, THALAPPILLI TALUK, THRISSUR DISTRICT. BY ADVS. MR.C.KHALID, MR.N.GOPINATHA PANICKER, MR.T.P.SAJID, SMT.M.A.SULFIA, SMT.NAMITHA JYOTHISH. RESPONDENT(S): ACCUSED: -------------------------------------------- 1. MUHAMMED ABDUL NOOR, S/O.ABDULLA MUSLIYAR, THAMBALA HOUSE, KUTTIPPURAM. 2. CIRCLE INSPECTOR OF POLICE, KUTTIPPURAM. 3. MUHAMMED MUSTHAFA, S/O.KAMMALI, VALIYAPPALLIYALIL HOUSE, THEKKE ANGADI, KUTTIPPURAM. 4. HARIZ, S/O.SAITHALAVI, VALAPPIL HOUSE, IRIMBILIYAM. 5. STATE, REPRESENTED BY THE GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM. R5 BY PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.2149 OF 2009 ------------------------------------------ Dated 20th January 2010 O R D E R Petitioner filed C.M.P.7831/2008 under Section 451 of Code of Criminal Procedure for interim custody of Rs.10,00,000/- out of the money seized and produced in crime No.546/2008 of Kuttippuram Police Station contending that Rs.10,00,000/- was deposited by him before the accused and it was not returned and therefore, he is entitled to that amount out of Rs.1,08,92,920/- seized. Petitioner sought interim custody of the amount. By order dated 5/6/2009 petition was dismissed. This petition is filed under Section 482 of Code of Criminal Procedure to quash the said order and to grant interim custody of the amount. Crmc 2149/09 2 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel argued that order of the learned Magistrate itself shows that investigating officer admitted that Rs.10 Lakh was deposited by the petitioner with the accused and in such circumstances, learned Magistrate was not justified in dismissing the petition. It is argued that money is for circulation and if interim custody is given petitioner could utilise the money and he is prepared to furnish any security and therefore, the amount is to be released. 4. Learned Public Prosecutor opposed the petition contending that though Rs.98,30,46,000/- was collected by the accused only Rs.1,08,92,920/- could be seized and Crmc 2149/09 3 petitioner alone cannot claim that amount. At best, he will only be entitled to a proportionate amount and in such circumstances, it cannot be allowed. 5. In view of the statement of the learned counsel that petitioner alone raised the claim and other depositors did not approach the learned Magistrate, Public Prosecutor directed to file a statement of investigating officer. Statement is filed to the effect that 824 persons had approached the police to get back their money and total amount claimed comes to Rs.14,98,25,000/- out of which only Rs.1,08,92,920/- was seized. It is also submitted that accounts of the accused was also freezed and including the freezed amount it would come to Rs.Five crores and if that amount is divided among the depositors Crmc 2149/09 4 and petitioner will get only 1/5326 out of Five crores, which would only be Rs.9,388/-. It is also submitted that two persons had already approached Sub court to get back the amount. 5. As rightly pointed out by the learned Public Prosecutor, when the total amount misappropriated by the accused is above 98 crores and what was seized is only Rs.1 crore and the claim was raised before the police by 824 persons for Rs.14,98,25,000/-, interim custody of Rs.10,00,000/- cannot be given to the petitioner for the reason that he approached the learned Magistrate first. Petitioner is at liberty to approach the civil court for getting the amount. M.SASIDHARAN NAMBIAR, JUDGE. uj.