Kerala High Court · 2012

WP(C).No. 13118 of 2012 (L) APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1- COPY OF THE NOTICE ISSUED BY THE SUB INSPECTOR OF POLICE,PALARIVATTOM, TO THE PETITIONER ON 1.6.2012 RESPONDENTS' EXHIBITS: ANNEXURE R2(A): COPY OF THE FIR IN CRIME NO.729/12.ANNEXURE R2(B): COPY OF THE FIR IN CRIME NO.751/12.ANNEXURE R2(C): COPY OF THE FIR IN CRIME NO.761/12.ANNEXURE R2(D): A TABULAR STATEMENT SHOWING THE DETAILS OF THE GOLDORNAMENTS RECOVERED FROM DIFFERENT FINANCIAL INSTITUTIONS. /TRUE COPY/P.S. TO JUDGECL K.M. JOSEPH & K. HARILAL, JJ. ....................................................... W.P.(C)NO.13118 OF 2012& W.P.(C)NO.13897 OF 2012 ......................................................... Dated this the 22nd day of June, 2012. JUDGMENT Joseph, J.The issue involved is common, we dispose of these writpetitions by a common judgment.2. The case of the petitioners in brief is as follows: The petitioner in W.P.(C)No.13118/2012 is the BranchManager of Muthoot Fincorp and the petitioner in W.P.(C)No.13897/2012 is the Area Manager of the same company.The company is doing business in gold loan and othermoney transactions. It is stated that it is a reputedcompany and has so many years of standing in the field.They are doing the business in accordance with law. Onelady by name Mayusha approached the Mattanchery branchof the company and pledged gold ornaments after complyingwith all formalities and loan was sanctioned against gold.The petitioners had received a notice from the Sub Inspectorof Police, Palarivattom directing to produce the goldornaments pledged as loan No.F.96353. Though the W.P.(C)NO.13118 OF 2012&W.P.(C)NO.13897 OF 2012: 2 :petitioners tried to ascertain the details from the policestation, they could not get any details other than the noticeregarding details of the crime registered. According to thepetitioners, they accepted the gold after complying with allthe formalities and they are prepared to co-operate withthe investigation. The petitioners' apprehension is that ifthey produce the good ornaments before the police, there isno assurance that they will have any control over theproperty. It is also unsafe to keep the gold ornaments in thepolice station as observed by the Apex Court in the decisionreported in Sunderbhai Ambalal Desai v. State ofGujarat (2002 (10) SCC 283), it is contended. According tothe petitioners, the pawner has got clear title over theproperty at the time of pledging the property with thecompany. 3. Statements have been filed by the Sub Inspector ofPolice, Palarivattom. Therein it is inter alia stated as follows: The accused with the intention to cheat people,collected gold ornaments and money from common peopleby offering huge interest. After getting the gold ornaments, W.P.(C)NO.13118 OF 2012&W.P.(C)NO.13897 OF 2012: 3 :the accused pledged gold ornaments in different financialinstitutions. The conduct of the accused in pledging goldornaments at different financial institutions simultaneously,without even redeeming any other pledge also shows thedishonest intention on the part of the accused, it is stated. Onthe basis of the disclosure of the accused and for successfulprosecution, the police have served notice under Section 91Cr.P.C to various financial institutions where the accusedpledged the gold ornaments of the public. Ext.R2(d) purportsto be the tabular statement showing details of the goldornaments recovered from different financial institutions. Itis stated that the petitioners have approached the DeputyCommissioner of Police seeking time, but did not producethe gold ornaments. Ext.R2(e) is a tabular statementshowing details of the gold ornaments which is to berecovered from the different branches of Muthoot Fincorp.Recovery of the gold ornaments which are pledged inMuthoot Fincorp is most essential for successful prosecution.4. We heard the learned counsel for the petitioners andthe learned Special Government Pleader. The learned counsel W.P.(C)NO.13118 OF 2012&W.P.(C)NO.13897 OF 2012: 4 :for the petitioners would draw our attention to Section 178of the Contract Act and contend that the pawner had goodtitle and the transactions between the petitioner companyand loaners were done in a legal manner. He would furtherdraw our attention to the decision of the Apex Court reportedin Sunderbhai Ambalal Desai v. State of Gujarat (2002(10) SCC 283). Therein in paras 7 and 11 the Apex Courtobserved as follows: “7. In our view, the powers under Section451 Cr.P.C should be exercised expeditiouslyand judiciously. It would serve variouspurposes, namely:1. owner of the article would not sufferbecause of its remaining unused or by itsmisappropriation;2. court or the police would not berequired to keep the article in safe custody;3. if the proper panchnama before handingover possession of the article is prepared, thatcan be used in evidence instead of its productionbefore the court during the trial. If necessary,evidence could also be recorded describing thenature of the property in detail; and 4. this jurisdiction of the court to recordevidence should be exercised promptly so thatthere may not be further chance of tamperingwith the articles”. 11. With regard to valuable articles, suchas, golden or silver ornaments or articlesstudded with precious stones, it is submittedthat it is of no use to keep such articles in police W.P.(C)NO.13118 OF 2012&W.P.(C)NO.13897 OF 2012: 5 :custody for years till the trial is over. In ourview, this submission requires to be accepted.In such cases, the Magistrate should passappropriate orders as contemplated underSection 451 Cr.P.C at the earliest.” He would further submit that the petitioners are willing toco-operate with investigation. The learned SpecialGovernment Pleader would submit that the police is onlyacting in accordance with the requirement of law and thisCourt may not interfere with the right of the police torecover the gold and produce before the Magistrate and it isfor the petitioners to avail the remedies as per law. Hewould submit that to facilitate the same, the respondentofficers will issue notice to the petitioners. This is to allaythe apprehension of the petitioners that the personsconcerned may be in a position to obtain orders from theMagistrate without noticing the claim of the petitioners.5. After hearing the learned counsel for the parties, weare of th view that the following order has to be passed in theinterests of justice. Notice will again be issued to the petitioners W.P.(C)NO.13118 OF 2012&W.P.(C)NO.13897 OF 2012: 6 :calling upon them to produce the gold involved. Uponreceipt of the notice, the petitioners will comply with thesame. Thereupon the respondent authority upon receipt ofthe gold from the petitioners will produce the gold beforethe Magistrate at the earliest. At the time of production, therespondent officers will issue notice to the petitioners so thatthey may be in a position to take appropriate steps underSection 451 of the Cr.P.C. Needless to say that the mannerin which the Magistrate has to deal with such a situationhas already been adverted to by the Apex Court which wehave extracted in our judgment. K.M. JOSEPH, JUDGE. K. HARILAL, JUDGE. cl