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2010 DIGILAW 499 (KER)

Usha Kumari v. State of Kerala

2010-07-06

V.RAMKUMAR

body2010
Judgment : In this petition filed under Section 482 Cr.P.C, the petitioner herein, who was examined as PW2 in C.C.No.553/2001 on the file the of J.F.C.M-I, Neyyattinkara, challenges Annexure 4 order dated 1.07.2008 passed by the Magistrate dismissing her application filed as C.M.P.No.3354/2006 under Section 452(5) and 456 Cr.P.C to confiscate, sell by public auction and pay to the petitioner the sale proceeds in respect of the 13 cents of property purchased by the 2nd respondent/accused(Nagendran) as per document No.109/99 of sub Registry Officer, Kunnathukal by utilising the cash worth Rs.2 lakhs and a portion of the sale proceeds of the jewellery stolen by him from the house of the petitioner’s late father Balakrishna Pillai (CW2). The de facto complainant in the case is the petitioner’s husband, Suresh Babu, examined as PW1. 2. In C.C.No.553/2001 before the J.F.C.M-I, Neyyattinkara, the prosecution case was as follows:- On 14.1.1999 at about 2 am the accused Nagendran committed lurking house trespass by night in the house of the father-in-law of Suresh Babu, the de facto complainant by name Kadichal Padmavilasam situated on the eastern side of Moonnukallinmoodu – Kodangavila road at Ooruttukala after breaking open the locks of the front grill and southern room of the house using a crowbar. Thereafter the accused committed theft of currency notes worth Rs.2 lakhs kept in a brief case and gold ornaments kept in the drawer of a cupboard in the southern room. A portion of the jewellery (10.5 Sovereigns) stolen from the aforesaid house was sold in a jewellery shop by name Aswathi Fashion Jewellers, run by one Surendran (PW10) at Neyyattinkara and by utilizing the sale proceeds he purchased 13 cents of property at Kunnathukal village for a total consideration of Rs.40,500/- but showing only Rs.13000/- in MO6 sale deed as the total consideration. The accused has thereby committed offences punishable under Sections 467, 461 and 380 IPC. 3. The learned Magistrate, after trial, as per judgment dated 03.02.2006, found the 2nd respondent not guilty of the offence punishable under Sections 461 IPC but convicted him of the offences punishable under Section 457 and 380 IPC. For the conviction under Section 357 IPC, the 2nd respondent was sentenced to rigorous imprisonment for two years and to pay a fine of Rs.2,000/- and on default to pay the fine to suffer imprisonment for one month. For the conviction under Section 357 IPC, the 2nd respondent was sentenced to rigorous imprisonment for two years and to pay a fine of Rs.2,000/- and on default to pay the fine to suffer imprisonment for one month. For his conviction under Section 380 IPC he was sentenced to rigorous imprisonment for three years and to pay a fine of Rs.3,000/- and on default to pay the fine to suffer imprisonment for two months. The substantive sentences were directed to run consecutively. With regard to the final disposal of the property under Section 452 Cr.P.C., the trial court observed as follows: “It is highly necessary in this case to have a comprehensive order regarding the disposal of the property produced in this case. Mos.1 to 4 gold ornaments are in the interim custody of PW1 which shall become absolute after the expiry of period of appeal. The bond executed thereof shall stand cancelled. MO5, the broken piece of lock shall be destroyed after expiry of period of appeal. It is found that the property comprised in resurvey 293/18 of Kunnathukal village covered by MO6 sale deed No.109/99 dated 21.1.99 of Kunnathukal Sub Registry was acquired by the accused making use of the proceeds of the booty in this case. Therefore the said property is liable to be confiscated. It is, therefore, ordered that the property under MO6 sale deed shall be disposed of in public auction and the sale proceeds thereof shall be retained in government account, subject to the claim of the persons who are entitled to get the share of the same by way of restitution. The claimants, if any, can file separate applications before this court within a period of 3 months from today which shall be disposed of after conducting proper enquiry regarding their entitlement. It is subject to the order, if any, that may be passed by the Appellate court.” 4. Aggrieved by the conviction entered and sentence passed by the trial court, the 2nd respondent filed an appeal before the Sessions Court, Thiruvananthapuram as Crl.Appeal No.146/2006. As per judgment dated 7.10.2006 the learned Sessions Judge confirmed the conviction entered and the sentence passed by the trial court. The only modification made was that the substantive sentence were directed to run concurrently. As per judgment dated 7.10.2006 the learned Sessions Judge confirmed the conviction entered and the sentence passed by the trial court. The only modification made was that the substantive sentence were directed to run concurrently. With regard to the trial court’s order for confiscation of the immovable property acquired by the 2nd respondent by utilizing a portion of the sale proceeds of the stolen property, the lower appellate court also observed as follows:- “Point No.3:- Turning to the impugned order of the lower court confiscating the immovable property covered by MO6 document. I am of the view that the aforesaid order has also to be affirmed in the facts and circumstances of the case. PWs.3 and 4 are the vendors of MO6 property. It is in evidence that the accused sold the stolen gold ornaments to PW.10 immediately after the occurrence of theft on 15.1.1999. MO6 document is dated 21.1.99. The sale consideration shown in the document is Rs.13000/-. PW.10 who purchased the stolen gold ornaments from the accused testified before court that the sale proceeds of the gold ornaments was Rs.25,000/-. On a perusal of the evidence of PWs.3 and 4 and that of PW.10 I find that the court below was perfectly justified in holding that the accused purchased MO.6 property utilizing the sale proceeds of the stolen articles. The property is therefore liable to be confiscated, as ordered by the trial court, subject of course to any legal claim on the sale proceeds of that immovable property. The impugned order of the trial court in that regard is therefore found unassailable in the facts and circumstances of the case. The point is answered accordingly.” 5. The 2nd respondent took up the matter further in revision before this Court by filing Crl.R.P.No.2040/2007. As per order dated 30.10.2007, this Court confirmed the conviction entered and the sentence passed. The impugned order of the trial court in that regard is therefore found unassailable in the facts and circumstances of the case. The point is answered accordingly.” 5. The 2nd respondent took up the matter further in revision before this Court by filing Crl.R.P.No.2040/2007. As per order dated 30.10.2007, this Court confirmed the conviction entered and the sentence passed. However, in paragraph 10 of the order of this Court made a passing remark as follows:- “While in the case of acquisition of immovable property as per MO6 sale deed, there is no acceptable evidence to conclusively show that the said property was acquired with the sale proceeds of the four items of ornaments (MOs.1 to 4) stolen from the house of PWs.1 and 2, the recovery evidence in relation to MOs.1 to 4 clearly proves the case of the prosecution that it was the accused who had stolen those gold ornaments.” But the fact remains that this Court also confirmed the conviction entered and the sentence passed concurrently by the courts below and did not interfere with the order for final disposal of the properties under Section 452 Cr.P.C. Thereafter, the petitioner herein who is the wife of the de facto complainant and who was examined as PW2 before the trial court filed an application under Section 452(5) read with Section 456 Cr.P.C. as C.M.P.No.3354/2006 seeking the relief of confiscation mentioned earlier. As per Annexure IV order dated 1.06.2008, the learned Magistrate dismissed the application. Hence this petition. 6. Eventhough notice was served on the 2nd respondent he has not chosen to enter appearance. 7. As mentioned earlier, eventhough this Court made a passing observation while confirming the conviction entered and the sentence passed against the 2nd respondent that there was no acceptable evidence to conclusively show that the immovable property was acquired with part of the sale proceeds of the stolen properties this Court did not interfere with or dislodge the direction issued by the courts below under Section 452 Cr.P.C. with regard to the mode of disposal of the immovable property acquired by the accused by utilising a part of the ill-gotten gains made out of the crime. In fact, this Court had overlooked the fact that apart from the jewellery, cash worth Rs.2 lakhs had also been stolen from the house of the petitioner and the findings recorded by the courts below were to the effect that it was by utilising the said cash as well as part of the sale proceeds of the stolen jewellery that the 2nd respondent/accused purchased 13 cents of land comprised in re-survey No.293/18 of Kunnathukal village as per MO6 sale deed dated 21.1.1999 registered as document No.109/99 of SRO Kunnathukal. This Court was also labouring under a mistaken impression that the immovable property was acquired by the accused with the sale proceeds of MOs.1 to 4. Actually MOs.1 to 4 are the ornaments which could be recovered in specie and there were other items of jewellery besides the cash worth Rs.2,00,000/- which could not be recovered. 8. Sub-section 5 of Section 452 Cr.P.C. reads as follows:- “In this Section, the term “property” includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.” Thus, property which has been converted or exchanged or acquired by any such conversion or exchange will also be covered by the expression “property” liable for final disposal under Section 452 Cr.P.C. It was taking into account this legal position that the courts below had directed confiscation of the said property and the sale of the same in public auction and sale proceeds thereof to be retained in Government Account subject to the claim of the persons who were entitled to get their shares by way of restitution. Admittedly the petitioner was the only claimant. Admittedly the petitioner was the only claimant. The reasons given by the learned Magistrate for dismissing C.M.P.No.3354/2006 are that his Court while disposing of the revision filed by the accused had recorded a factual finding that there was no evidence to conclusively establish that the 13 cents of land was acquired by the accused by utilising the sale proceeds of the stolen property and that there was no finding by any of the Courts that the accused (2nd respondent herein) had committed theft of the cash worth Rs.2,00,000/- from the house of PW3. Both the aforesaid reasons are wrong. A casual observation by this Court without delving deep into the evidence on record cannot be characterised as a factual finding. Secondly, the courts below had factually found that besides jewellery the accused had also committed theft of currency notes kept in a suit case as alleged by PW1 (vide paragraph 17 of the trial court’s judgment and paragraph 6 of the appellate court’s judgment). Thus, the court below was not justified in dismissing the application filed by the petitioner. Hence Annexure IV order dated 1.7.2008 passed by the trial court is set aside. But it is made clear that from out of the proceeds of the auction sale, the petitioner will be entitled only to the extent of the actual loss sustained by her father late Balakrishna Pillai who died prior to the trial. This is because there is a house also constructed by the 2nd respondent/accused in the 13 cents of land in question and in the order passed by the trial court for restitution, it has been made clear that the sale proceeds of the auction sale shall be retained in Government Account subject to the claims of all persons who are entitled to get their shares by way of restitution. This Crl.M.C. is accordingly allowed as above.