IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 Crl.MC.No. 1565 of 2010() ------------------------- CMP.1091/2010 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... PETITIONER(S): ------------------------- M/S.SUNDARAM BNP PARIBAS HOME FINANCE LTD., SHANMUGHAM ROAD, ERNAKULAM, KOCHI-31, REPRESENTED BY ITS DULY AUTHORISED OFFICER, SENIOR OFFICER, P.N.ANOOP, AGED 31, S/O.NARAYANA PILLAI. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ANANDAN, S/O.KUNJIRAMAN, KAIMALAZHIKATH VEETTIL, ENATHU MURI, ENATHU VILLAGE, ADOOR, PATHANAMTHITTA. R1 BY PUBLIC PROSECUTOR SRI. C.S. HRITWIK THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.RAMKUMAR, J. ------------------------------------- Crl.M.C. No.1565 of 2010 -------------------------------------- Dated this the 27th day of May, 2010 ORDER The petitioner is a Company which claims to be a secured creditor in respect of a property which has been attached under Section 83 of Cr.P.C consequent to the absence of the second respondent herein, who was the accused in C.C.No.382/2006 on the file of the Judicial First Class Magistrate Court-III, Punaloor. The petitioner preferred a claim under Section 84 Cr.PC against the attachment by filing C.M.P No.1091/2010 before the Magistrate. The said claim has been rejected as per Annexure 4 order dated 10.2.2010 on the ground that the claim was preferred beyond the period of six months fixed under Section 84(1) of Cr.PC and that the complainant in the C.C was not made a party to the claim. C.C.No.382/2006 was a prosecution under Section 138 of Negotiable Instrument Act 1881, in which the second respondent herein was the accused. Since the accused Crl.M.C. No.1565 of 2010 : 2 : was absconding the learned Magistrate initiated steps under Sections 82 and 83 Cr.P.C culminating in the attachment of the property. In C.M.P.No.1091/2010 filed by the petitioner before the Magistrate, State of Kerala alone was the respondent. If the complainant in the C.C was to be a proper party to the application, then the court below should have permitted the petitioner to cure the defect of non-joinder of the proper party. 2. The other ground on which the application has been rejected is the ground of limitation. In the light of the decision of this court in Pharma Kuries (P) Ltd v. T.J.Soju and others [2006 (3) KLJ 585], the provisions of Sections 4 to 24 of Limitation Act 1963 applies to a claim petition under Section 84 (1) Cr.P.C. If so, the petitioner should have been given an opportunity to either file an application to condone delay or to substantiate the delay. That was also not done. The impugned order, (Annexure 4) is accordingly set aside and Crl.M.C. No.1565 of 2010 : 3 : C.M.P No.1091/2010 is restored to file. The petitioner shall be permitted to cure the defects by filing a petition to condone the delay and by arraying the complainant in the C.C.No.382/2006 as a respondent thereto. The petition shall thereafter be disposed of after giving both sides an opportunity of being heard. V.RAMKUMAR, JUDGE dmb