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2000 DIGILAW 232 (KER)

Somasekharan Nair v. State of Kerala

2000-04-06

K.A.MOHAMED SHAFI

body2000
ORDER K.A. Mohammed Shafi, J. 1. This M. C. is filed by the defacto complainant in C.C. 124/97 pending before the Judicial First Class Magistrate's Court - I, Thiruvananthapuram challenging the order in C.M.P. 3825/99 dated 13.10.1999 confirmed by the revisional court in Crl. R. P. No. 113/99. 2. C.C. 124/97 is instituted against the accused therein on the basis of the complaint filed by the petitioner alleging offences punishable under S.420, 465, 462 and 471 read with 34 of I.P.C. The allegation was that the accused cheated the petitioner of Rs. 20,000/-. Though the crime was registered and charge sheet was laid after investigation and the above C.C. is pending before the Magistrate's Court, the accused who belonged to U.P. are still absconding. An amount of Rs. 20,600/- was recovered from the accused by the investigating officer during the course of investigation and the same was produced before the Court. The petition filed by the petitioner seeking release of the amount of Rs. 20,000/- under S.451 of the Cr.P.C. was dismissed on 27.12.1996, since the amount produced before the Court is Rs. 20,600/- and the amount sought to be released by the petitioner being Rs. 20,000/-, the amount cannot be split up from the total amount produced. Thereafter the amount has been lying in court. 3. The petitioner filed C.M.P. 3825/99 before the Trial Court for release of Rs. 20,000/- out of the amount produced in court. That petition is dismissed by the Trial Court by order dated 13.10.1999 holding that if the amount is returned to the petitioner at present, he should return the very same currency notes at the time of trial in this case and therefore, the petitioner cannot use the money as currency even if the amount is returned to him. Though the petitioner challenged that order in Crl. R. P. 113/99 before the Sessions Court, Thiruvananthapuram, the same was dismissed by the Sessions Court holding that the order passed under S.451 of the Cr.P.C. is not revisable under S.397(2) of the Cr.P.C. and in view of Circular No. 19/61 dated 2.8.1961 issued by this Court, even if the amount is returned to the petitioner with a direction to produce the same at the time of trial, no useful purpose will be served to the petitioner by obtaining interim custody of the property in the form of cash. 4. 4. It has to be noted that apart from the petitioner there is no rival claimant for the money produced before the Court. The petitioner has only sought for interim custody of the amount under S.451 of the Cr.P.C. Since the accused are prosecuted for the offences punishable under S.420 and allied offences, the identification of the currency as in the cases of theft etc. does not arise in this case. The circular No. 19/61 dated 2.8.1961 issued by this Court referred to by the Sessions Court pertains to receipt and disposal of the case properties produced in the form of cash before the Court. That circular does not fetter the hands of the court with regard to the disposal of the property under S.451 and 452 of the Cr.P.C. It is a direction mainly with regard to the accounting of the property before the Court in the form of cash. Therefore, that circular is not a bar in returning the amount to the petitioner in this case. 5. Under the circumstances I find that the petitioner is entitled to the return of Rs. 20,000/- produced before the Trial Court in this case. Hence the learned Magistrate is directed to return Rs. 20,000/- to the petitioner on obtaining proper security and on the undertaking to produce the amount of Rs. 20,000/- in court as and when required for the purpose of trial in this case. The Crl. M. C. is allowed accordingly.