V. RAMKUMAR v. RAMKUMAR

V. RAMKUMAR , J.==========================Crl.R.P. No. 116 of 2008==========================Dated this the 26th day of May, 2008.ORDER The petitioner challenges the order dated 27.10.2007passed by the Judicial First Class Magistrate, Chavakkaddismissing his private complaint under Section 203 Cr.P.C. Asper the said private complaint registered as C.M.P. No. 6975 of2005, the petitioner alleged offences punishable under Sections463, 467 and 468 r/w Section 34 IPC said to have been committed by respondents 1 to 4 herein.

The petitioner herein and respondents 2 and 3 are the children of late C.L. Devassy. The 1st respondent herein is the widow of C.L. Devassy who died on 25.07.2006 at the age of 75. Late Devassy had a safety locker with South Indian Bank, Venktangue in which he had allegedly kept all his valuables. Thegrievance of the petitioner in the private complaint was that after the death of Devassy, at the instance of respondents 2 and 3, aforged nomination was created in the name of the 1st respondent widow with the help of the 4th respondent bank manager and the CRL.R.P.NO. 116/2008: 2:locker was allowed to be operated and the entire valuables were taken away by respondents 2 and 3 and thereafter they deserted their mother, the 1st respondent.

The provisions governing the hiring and management of safety bank lockers are contained in Section 45ZE of the BankingRegulation Act, 1949. Under sub-section 1 of Section 45ZE of the Banking Regulation Act, where an individual is the sole hirerof a locker from a banking company, such individual may nominate one person to whom, in the event of death of such individual, the banking company may given access to the locker and liberty to remove the contents of the locker. Sub-Section 3of Section 45ZE states that every nomination as aforesaid shall be made in the prescribed manner. Sub-section 4 of the said provision provides that before permitting the removal of the contents of any locker by the nominee, an inventory of the contents of the locker will have to be prepared and signed by such nominee.

It is the specific case of the petitioner that C.L. Devassyhad not nominated any person during his life time and it was CRL.R.P.NO. 116/2008: 3:without any nomination that respondents 2 and 3 managed to remove the contents of the locker. The petitioner has also produced Annexure A agreement executed on 11.04.1988 by C.L.Devassy at the time of hiring the safe deposit locker and Annexure D authorisation allegedly by C.L. Devassy in favour of the 1st respondent herein namely Mary Devassy. Apart from the fact that the signatures of C.L. Devassy appearing in Annexure Aand Annexure D are patently dissimilar, the law does not contemplate any such authorisation. What is envisaged by the statute is a nomination in the prescribed form. Hence the petitioner had a prima facie case for cognizance. The learnedMagistrate was not justified in holding that even if no inventory was prepared, that would not attract the offences alleged and the remedy of the petitioner was to move the civil court. I,therefore, set aside Annexure B order dismissing the complaint under Section 203 Cr.P.C and direct the Magistrate to take cognizance of the offences and proceed according to law.

Incidentally, it is pertinent in this connection to notice yet another infirmity. The compliant filed by the petitioner was CRL.R.P.NO. 116/2008: 4:dismissed by the Magistrate at the threshold. The provision invoked by the learned Magistrate for dismissing the complaint was Section 203 Cr.P.C. That provision cannot be invoked at thepre-cognizance stage. The learned Magistrate had admittedly not taken cognizance of the offences nor had he recorded the sworn statement of the complainant. He was dismissing the complaint at the threshold for which Section 203 Cr.P.C is not the enabling provision. For this reason also, the impugned order is not sustainable. The matter is accordingly remitted to the court below for proceeding according to law after taking cognizance, for which purpose the petitioner shall appear before the learnedMagistrate on 16.06.2008 without any further notice. This Crl.R.P is disposed of as above. V. RAMKUMAR, JUDGE.rv CRL.R.P.NO. 116/2008: 5: