IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 Crl.MC.No. 748 of 2011() ------------------------ CMP.55/2011 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... PETITIONER/ACCUSED: --------------- FAISAL,S/O.MUHAMMAD KUTTY, ANNATH HOUSE,KUTTIPPURAM AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT BY ADV. SRI.SIRAJ KAROLY RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR : ADV SMT M K PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.748 of 2011 --------------------------------------- Dated this 16th day of March, 2011 ORDER Petitioner is the third accused in Crime No.546 of 2008 of Kuttipuram Police Station for offences punishable under Secs.420 and 406 r/w Sec.34 of the Indian Penal Code and Secs.3, 7(4) and 17 of the Money Lenders Act. Petitioner was later impleaded as the third accused in the case as per report of the investigating officer. The allegation is that the accused including petitioner cheated various depositors. In the course of investigation the document of title pertaining to the property of petitioner was seized by the police and produced before Court. Petitioner filed C.M.P.No.55 of 2011 for release of the document of title belonging to him. That application was dismissed by the learned Magistrate by Annexure- V, order observing that the first accused is absconding, final report has not so far been filed and that there is merit in the objection of prosecution that if the document is released petitioner may sell the property on behalf of the first accused. Learned counsel contended that as it stands, there is no offence attributed to the property covered by the document standing in the name of petitioner and hence there is no reason why the document should not be given to the petitioner. Learned Public Prosecutor submitted that Crl.M.C.No.748 of 2011 -: 2 :- instruction received is that the first accused has purchased the property in the name of petitioner using the deposits collected from various depositors who are cheated and hence the document cannot be released. 2. Learned Magistrate has not gone into the question whether the property was purchased by the first accused in the name of petitioner/third accused. If in relation to the property no offence is revealed and there is no basis for the contention of prosecution that the property was purchased by the first accused in the name of the petitioner, learned Magistrate has to consider whether the document could be returned retaining its certified copy and subject to appropriate conditions. But the petition could be disposed of only after giving notice to the first accused as well since the document was allegedly seized from his custody. In view of the above I am inclined to set aside the order and remit petition to the learned Magistrate for fresh consideration. Resultantly this criminal miscellaneous case is allowed and Annexure-V, order is set aside. C.M.P.No.55 of 2011 (in Crime No.546 of 2008 of Kuttipuram Police Station) is remitted to the learned Magistrate for fresh consideration and disposal after giving notice to the first accused and hearing the prosecution as well. (THOMAS P JOSEPH, JUDGE) Sbna/-