Karnataka High Court
M/S Viswas Textile Processors vs State Of Karnataka on 23 August, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 8041 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 8041 OF 2021
BETWEEN:
1. M/S VISWAS TEXTILE PROCESSORS
A PARTNERSHIP FIRM HAVING ITS OFFICE AT
SY.NO.24, GUDIMAVI VILLAGE
KENGERI HOBLI, MYSURU ROAD
BENGALURU - 560 074
REPRESENTED BY ITS
MANAGING PARTNER
MR.B.K.RAMAKRISHNA.
...PETITIONER
(BY SRI. RUKKOJI RAO H.S., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY
Digitally signed by KUMBALAGODU POLICE STATION
PADMAVATHI B K
Location: HIGH KUMBALAGODU
COURT OF
KARNATAKA PIN-560 074.
2. MR.SHIVALINGEGOWDA @ SHIVALINGA
AGED ABOUT MAJOR
RESIDING AT:
HULLEGALA VILLAGE
HALUGURU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT
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CRL.P No. 8041 of 2021
PIN-571 430.
...RESPONDENTS
(BY SRI K.S.ABHIJITH, HCGP FOR R1;
SRI LANKESH L., ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO 1. SET ASIDE THE ORDER DATED
24.08.2021 PASSED BY THE VI ADDL.DISTRICT AND SESSIONS
JUDGE, BENGALURU RURAL DISTRICT IN CRL.RP.NO.12/2020
PRODUCED AT ANNEXURE-A; 2. CONSEQUENTLY, ALLOW THE
APPLICATION FILED BY PETITIONER UNDER SEC.451 AND 457
OF CR.PC IN CR.NO.277/2019 AT KUMBALGODU P.S., FOR
INTERIM CUSTODY OF CASH OF RS.50,00,000/-.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question an order dated 24-08-2021 passed by the VI Additional District and Sessions Judge, Bengaluru Rural District in Criminal Revision Petition No.12 of 2020 whereby an application filed by the petitioner under Sections 451 and 457 of the CrPC in Crime No.277 of 2019 for interim custody of cash of Rs.50/- lakhs is dismissed.
-3- CRL.P No. 8041 of 20212. Heard Sri Rukkoji Rao H.S., learned counsel appearing for the petitioner, Sri K.S.Abhijith, learned High Court Government Pleader for respondent No.1 and Sri L.Lankesh, learned counsel for respondent No.2.
3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:-
The petitioner-M/s Viswas Textiles Processors is the complainant in the case at hand. Accused No.1 was an employee of the petitioner. He is alleged to have indulged in conspiracy with accused 2 to 5 and is further alleged to have forged cheques belonging to the petitioner by terming them as 'self' and defrauded the petitioner to the tune of Rs.3,50,60,000/- during the period 17-09-2018 and 13-12-2019 by presentation of various cheques drawn on ICICI Bank. A complaint comes to be registered by the petitioner against all the accused on 15-12-2019 for offences punishable under Sections 408, 468, 471 and 420 of the IPC. On 18-12-2019 during the course of investigation accused No.1 tendered his voluntary statement to the Police that he is the beneficiary of the proceeds of crime. On 28-12-2019 a sum of -4- CRL.P No. 8041 of 2021 Rs.15,00,000/- is recovered from one Mr. Shashank, CW-21 based upon a statement made by accused No.1. On becoming aware of the alleged crime, the brother-in-law of respondent No.2 Mr. Krishnappa visited the respondent/ Police and hands over cash of Rs.35/- lakhs which was given to him as loan by the accused. Therefore, by these acts Rs.50/- lakhs was totally recovered by the Police. The admitted statements were that Rs.50/- lakhs belonged to the petitioner. It is not the merit of the crime that drives the petitioner to this Court in the subject petition. The petitioner files an application under Section 457 of the CrPC for interim custody of Rs.50/- lakhs so recovered by the respondent/Police. The concerned Court after hearing the parties to the lis partially allows the petition, directs release of Rs.15/- lakhs in favour of the petitioner and Rs.35/- lakhs to be kept in safe custody till the disposal of the case. It is this order that is called in question in the subject petition.
4. The learned counsel for the petitioner would contend that the order of THE learned Magistrate is on the face of it erroneous as it is an admitted fact that seizure of Rs.50/- lakhs in all admittedly belongs to the petitioner and in terms of the -5- CRL.P No. 8041 of 2021 judgments of both the Apex Court and that of this Court the currency could not be permitted to be kept in custody beyond 30 days and should be given interim custody to the person to whom it belongs with adequate security and, therefore, submits that the entire amount of Rs.50/- lakhs should be given to the petitioner.
5. The learned High Court Government Pleader would however dispute the position insofar as it pertains to Rs.35/-
lakhs on the ground that there is a rival claimant. The rival claimant appears before the Court and contends that no doubt he handed it over to the Police but it becomes his amount and, therefore, it cannot be released in favour of the petitioner. Both the learned High Court Government Pleader and the learned counsel appearing for the 2nd respondent would seek dismissal of the petition.
6. The learned counsel appearing for the petitioner would now further contend that even Rs.15/- lakhs that is permitted to be handed over to the petitioner contains onerous conditions of furnishing Bank Guarantee to the said Rs.15/- lakhs which -6- CRL.P No. 8041 of 2021 defeats the order itself and, therefore, that portion of the order is prayed to be modified.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
8. The afore-narrated facts are not in dispute. The transaction between the parties or the recovery of Rs.50/-
lakhs from two sources is not in dispute. The application filed by the petitioner under Section 457 of the CrPC is turned down partially by permitting release of Rs.15/- lakhs and denying insofar as it pertained to Rs.35/- lakhs. Against the rejection, the petitioner prefers two criminal revision petitions which also come to be dismissed on the ground that there were rival claimants. The reason rendered by the concerned Court for dismissing the application insofar as it pertains to Rs.35/- lakhs on the ground that there are rival claimants would run counter to the judgment rendered by this Court in the case of MANGHARAM & SONS, BANGALORE V. R.C.MORZARIA1 1 MANU/KA/0028/1984 -7- CRL.P No. 8041 of 2021 wherein a learned single Judge of this Court has held as follows:
".... ..... .....
11. In a case like this where the person from whom the property is seized also claims the custody of that property, two things are required to be considered. Normally the person from whom the property is seized is entitled to the custody of the same (with or without conditions) but he will not be entrusted with the property if there is prima facie material on record showing that he has committed some offence re : the same. In such an event, the claim, if any, of the other person, or the complainant as in this case, may be considered. While examining the rival claims the question as to who was in lawful possession firstly, at the time of seizure and secondly, earlier, that is to say, earlier to the event which gave cause to that seizure, is very important. If no prima facie case for any offence is made out against the person from whom the property is seized he can be presumed to have been in lawful possession of the same at the time of seizure and may be entrusted with it."
Further, in the case of K.W.GANAPATHY V. STATE OF KARNATAKA2, this Court holds as follows:
".... .... ....
4. After hearing the counsel for the State and the petitioner, I find that the grievance made out by the petitioner is genuine. Of course, in the usual course of routine conditional orders are passed while delivering the property to the interim custody. When the property has any evidentiary value, it is to be kept intact and to ensure its production during the course of evidence for the purpose of 2 MANU/KA/0847/2002 -8- CRL.P No. 8041 of 2021 marking as a material object the condition of non alienation is imposed. However, when the property has no evidentiary value and only the value of the property is to be properly secured for passing of final order under Section 452, Cr.P.C, the necessity of keeping such properties intact by imposing onerous conditions, prohibiting its alienation or transfer would not be necessary in law.
5. The production of property which has evidentiary value during evidence is a part of a fair trial. With the advanced technology, it is not necessary that the original of the property inevitably has to be preserved for the purpose of evidence in the changed context of times. The reception of secondary evidence is permitted in law. The techniques of photography and photo copying are far advanced and fully developed. Movable property of any nature can be a subject matter of photography and taking necessary photographs of all the features of the property clearly is not a impossible task in photography and photo copying. Besides, the mahazar could be drawn clearly describing the features and dimensions of the movable properties which are subject matters of criminal trial. Many a time, we find as a routine course, the Courts impose condition of non alienation and to keep the property intact without alteration in any manner. Many a time such conditions act harshly upon rightful owners of the property from exercising their lawful ownership rights.
6. Irrespective of the fact whether the properties have evidentiary value or not it is not necessary that the original of the property has to be kept intact without alienation. As suggested above, the photography or photostat copy of the property can be taken and made a part of the record duly certified by the Magistrate at the time when the interim custody of the property is handed over to the claimant. In the event of the original of the property not produced in the evidence, photograph could be used as secondary evidence during the course of evidence. Ultimately, while passing final orders, it is only the value of the property that becomes a prime concern for the Court. If a person to whom the interim custody is granted, is not entitled to the property or its value and if some other person is held to be entitled to have the property or its value by taking necessary bonds and security from the person to whom interim custody is granted, the value could be recovered and made payable to the person entitled to.
-9- CRL.P No. 8041 of 2021The rightful, owners, who have lost the property by an act of crime even after detection and recovery are continued to be prevented from beneficial possession and enjoyment of the same by the archaic conditions imposed as a regular routine despite the changed context of scientific developments.
7. To illustrate, a situation one X loses gold jewellery by theft. The police successfully detect and discover the gold jewellery the same is produced before the Court. Production of gold jewellery and marking of the same in evidence to prove the same as corpus delecti is one of the insistence of law as a part of fair trial. Even after the gold jewellery is given to the custody of X to deprive him by imposing the condition of non alienation from exercise of right ownership for unreasonable length of time would be too harsh and one sided, and a nonchalant approach towards the victims of crime. It may be that X require the gold jewellery for the purpose of the marriage of his daughter or may be that he may require funds for medical treatment or other genuine needs, when he has no alternative source except by sale of the gold jewellery, the condition of non alienation in such situation would be onerous and unreasonable. The production of property during the trial having incriminating value is a insistence to secure the rights of accused as a part of fair trial. At the same time, when there is a possibility of having a secondary evidence of the said property, it is no longer necessary in law to insist that the property to be kept intact without alteration and non alienation.
8. In order to ensure the recovery of value, it is necessary that the trial Court shall take all necessary diligent steps to get the market value of the property, correctly assessed the photography of the property,, properly taken depicting all its features and dimensions and before the property is delivered to the interim custody, the photographs have to be certified by the Magistrate. Further necessary bonds and security to be taken from the person to whom interim custody to be given for the value of the property in order to ensure prompt recovery of value from the person to whom interim custody is given. By following the said safeguards, it is no longer necessary to follow the archaic convention of imposing condition of non alienation. After all the Court while passing a judicial order of interim custody is guided by the investigation material and other
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CRL.P No. 8041 of 2021prima facie material, which support the claim and title of the person to whom interim custody is given. Having once given the interim custody to the person who is supposed to be the owner of the property, depriving him to effectively use and exercise the lawful ownership rights would be unlawful."
Therefore, the order directing keeping Rs.35/- lakhs in safe custody is rendered unsustainable. But, the release of the amount would be in terms of the judgment of the Apex Court in the case of SUNDERBHAI AMBALAL DESAI AND OTHERS V. STATE OF GUJARAT3 wherein the Apex Court considering an identical circumstance has held as follows:
"7. In our view, the powers under Section 451 CrPC should be exercised expeditiously and judiciously. It would serve various purposes, namely:
1. owner of the article would not suffer because of its remaining unused or by its misappropriation;
2. court or the police would not be required to keep the article in safe custody;
3. if the proper panchnama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and
4. this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.
... ... ... 3 MANU/SC/1110/2002 - 11 - CRL.P No. 8041 of 2021
11. With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, the Magistrate should pass appropriate orders as contemplated under Section 451 CrPC at the earliest.
12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:
(1) preparing detailed proper panchnama of such articles;
(2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security.
13. For this purpose, the court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 CrPC. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the court under Section 451 CrPC to impose any other appropriate condition.
... ... ... ...
21. However, these powers are to be exercised by the Magistrate concerned. We hope and trust that the Magistrate concerned would take immediate action for seeing that powers under Section 451 CrPC are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of
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CRL.P No. 8041 of 2021the High Court concerned in seeing that the rules framed by the High Court with regard to such articles are implemented properly."
(Emphasis supplied) In the light of the judgment of the Apex Court, the maximum period for the currency notes seized can be held in safe custody is 15 days or a month and the same should be released by way of interim custody to the victim by imposing conditions.
Therefore, the amount of Rs.35/- lakhs that is now directed to be held in safe custody is necessarily to be handed over by way of interim custody to the complainant/petitioner herein by imposing conditions.
9. Insofar as the amount of Rs.15/- lakhs that is directed to be handed over to the petitioner for its interim custody, the Court has imposed the following conditions:
"1. The petitioner is directed to submit the photos of the seized currency notes from 4 angles before taking them to his custody.
2. The petitioner shall execute indemnity bond for Rs.15,00,000/- with a surety for the likesum before the court.
3. He shall produce the seized currency notes before the court whenever called for identification purpose.
4. At the time of handing over the seized currency notes to the petitioner, the concerned police is
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CRL.P No. 8041 of 2021 directed to prepare detailed proper Panchanama of the said seized currency notes.
5. The petitioner shall not alienate, transfer the said cash in favour of anybody."
The petitioner is aggrieved by conditions 3 and 5 which direct that the petitioner shall produce the seized currency notes before the Court whenever called for identification purpose and condition No.5 directs that the petitioner shall not alienate, transfer the said cash in favour of anybody. In the considered view of this Court, conditions 3 and 5 would take away the benefit given in the order itself. If the currency notes are not put into use as is directed by the Court, it would become an order to keep it in safe custody which defeats the reason rendered in allowing the application. So goes condition No.5.
Therefore, both these conditions are required to be effaced from the order directing release of Rs.15/- lakhs.
10. For the aforesaid reasons, the following:
ORDER
(a) The Criminal Petition is allowed. The interim custody of the remaining amount of Rs.35/- lakhs seized under PF No.3/2020 shall be released in
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CRL.P No. 8041 of 2021
favour of the petitioner, subject to the following conditions:
(i) The prosecution shall prepare detailed and proper panchanama of such articles;
(ii) *
(iii) Proper and adequate security shall be taken by the Investigating Officer.
(b) Condition Nos. 3 and 5 in the order dated 24-08-2021 passed by the VI Additional District & Sessions Judge, Bengaluru Rural District in Crl.R.P.No.12 & 25 of 2020 are effaced.
Ordered accordingly.
Sd/-
JUDGE BKP * Condition No.(a)(ii) stands deleted as per court order dated 9/9/2022.