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2019 DIGILAW 383 (KER)

K. Ummer v. State of Kerala

2019-05-23

MARY JOSEPH

body2019
ORDER : Order dated 28.03.2018 passed by the Special Judicial First Class Magistrate Court (N.I. Act cases), Kozhikode (for short, 'the court below') in C.M.P.No.1427 of 2018, is sought to be quashed in the proceedings on hand. Petitioner is accused in S.T.No.2200 of 2016 filed by the second respondent before the court below under Section 142 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act'). 2. C.M.P.No.1427/2018 was dismissed by the court below mainly for two reasons as follows: (i) Satisfactory evidence was not adduced by the petitioner before the court below to show that he was not deliberately absconding or evading process. (ii) Two years time as contemplated by Section 85 Cr.P.C for getting the property lifted from attachment has been elapsed. 3. According to Sri.J.R.Prem Navaz, the learned counsel for the petitioner, the court below is perfectly unjustified in dismissing the application seeking to lift his immovable property from attachment. According to him, Sections 82 and 83 Cr.P.C are not of penal nature and meant only for procuring the presence of the petitioner before the court. Petitioner was never absconding or concealing himself for the purpose of avoiding execution of warrant issued against him. According to him, once the petitioner surrenders before the court and non-bailable warrant pending against him stands cancelled, he cannot be treated as an absconder. The learned counsel invited this Court's attention to sub-section (3) of Section 85 Cr.P.C to contend that on moving a formal application, the properties under attachment or the sale proceeds thereof will be released to the petitioner, whose properties have been attached. According to him, the courts are bound to consider the application filed under sub-section (3) of Section 85 Cr.P.C on merits and the direction issued to approach the Government and to request for a release of the property, will amount to divesting the powers of the court. According to him, in the aforesaid circumstances Annexure A2 order dated 28.3.2018 in C.M.P No.1427/2018 in S.T. No.2200/2016 passed by the Special Judicial First Class Magistrate, (N.I. Act Cases), Kozhikode is liable to be quashed. 4. According to Sri.Prem Navaz, the learned counsel for the petitioner, the accused appeared before the court after five years of the order of attachment and that delay was not caused wilfully. 4. According to Sri.Prem Navaz, the learned counsel for the petitioner, the accused appeared before the court after five years of the order of attachment and that delay was not caused wilfully. According to him, he came to know about the order of attachment of the property only when the court has ordered his acquittal after facing trial and immediately he applied for lifting of the same. Thereupon, he was informed that permission from the court is required and accordingly he has applied before the Special Judicial First Class Magistrate Court (N.I Act Cases), Kozhikode, for obtaining the same by filing C.M.P No.1427/2018. 5. According to the learned counsel, when the petitioner appeared after receiving process issued against him in the prosecution on hand, he was enlarged on bail. Evidence was adduced by the complainant and the accused was examined under Section 313(1)(b) Cr.P.C. Thereafter, the case was transferred to Judicial First Class Magistrate Court II (Mobile), Kozhikode and was taken on file as S.T.No.5587/2010. On his failure to appear there, non-bailable warrant was issued against him. When he continued to remain absent, despite issuance of non-bailable warrant against him, steps under Sections 82 and 83 Cr.P.C were also ordered against him. The report of the Village Officer was obtained and on its basis, immovable property of 11.88 cents, comprised in Re.Sy.No.33/84 of Karuvanthuruthy village belonging to the petitioner was ordered to be attached on 20.02.2011 by the District Collector. Consequently, the property was attached on 18.10.2011 and ultimately the case against the petitioner was transferred to the register of long pending cases as L.P.No.7/2012. The petitioner was abroad all throughout the above proceedings of the case. He got knowledge about the proceedings much later and therefore, made his appearance before the trial court voluntarily on 22.9.2016 and the case was refiled as S.T.No.6797/2016. He was released on bail and the case was made over to Special Judicial First Class Magistrate (N.I Act Cases), Kozhikode as per order dated 26.10.2016 of Chief Judicial Magistrate, Kozhikode. Both the prosecution and the defence were heard and the trial court has arrived at a finding that the accused is not guilty of commission of the offences alleged against and acquitted him under Section 255(1) Cr.P.C on 14.06.2017 vide judgment, true copy of which is appended to the petition on hand as Annexure A1. Both the prosecution and the defence were heard and the trial court has arrived at a finding that the accused is not guilty of commission of the offences alleged against and acquitted him under Section 255(1) Cr.P.C on 14.06.2017 vide judgment, true copy of which is appended to the petition on hand as Annexure A1. Only after passing of Annexure A1 judgment acquitting the petitioner, he was informed of the order of attachment pending against his property. Thereupon, he applied for lifting the same and was directed to obtain permission from the court. C.M.P.No.1427/2018 was filed for the purpose, but was dismissed for reasons stated above. 6. According to the learned counsel, steps under Sections 82 and 83 Cr.P.C are directed for procuring the presence of the persons before the court and are not penal in nature. The court below had enlarged the petitioner on bail on the date of his surrender on 22.9.2016 itself on getting convinced that he was not absconding wilfully to evade the proceedings of the court. Section 85 Cr.P.C. being relevant is extracted hereunder: “ 85. Release, sale and restoration of attached property- (1) if the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment. (2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed of under that section; unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner, in either of which cases the Court may cause it to be sold whenever it thinks fit. (3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale, and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him.” As per Sub-Section(1), if the proclaimed person appears within the time stipulated in the proclamation, the court shall pass an order releasing his property from attachment. As per Sub-Section(2), if he doesn't appear within the time stipulated in the proclamation, the property under attachment shall be at the disposal of the State Government (for short 'the Government'). It shall not be sold by the Government until expiration of six months from the date of attachment and until any claim made by any party against the attached property under Section 84 has been disposed of, if the attached property is not liable for speedy and natural decay. Sub-Section (3) provides that if within two years period from the date of order of attachment, the property is at the disposal of the Government, and the accused if appears voluntarily or is apprehended and brought before the court and proved to the satisfaction of the court that he was not absconding or concealing himself for the purpose of avoiding execution of the warrant, the court by whose order the property was attached, or the court to which it is subordinate, the property itself or if it is sold, the sale proceeds thereof, be delivered to him. 7. 7. It is not clear from the order under challenge or from the materials produced before this court by the petitioner, whether the immovable property under attachment has now been left at the disposal of the Government or whether it was already disposed of and only the sale proceeds are available with them. 8. Since two years' period has already been elapsed from the date of issuance of the order of attachment as contemplated by sub-section (2) of Section 85, the properties undoubtedly will be at the disposal of the Government. Only when the accused surrenders within two years from the date of order of attachment and convinces the court that he was not absconding or evading from attending the court, then, the property will be delivered to him. 9. In the case on hand the order of attachment was passed on 20.2.2011 and the property of the petitioner was attached on 18.10.2011. Thereafter several orders were issued by the Chief Judicial Magistrate, transferring the case to various courts and as on date of attachment it was pending before the Special Judicial First Class Magistrate (N.I Act Cases), Kozhikode. In the meantime, the petitioner had also faced trial and was acquitted for the offence punishable under Section 138 N.I Act. The petitioner has also successfully convinced the court that he was not wilfully concealing or evading from attending the prosecution and thereupon, the court concerned had enlarged him on bail. Sub-Section (3) of Section 85 provides that the petitioner needs to convince the court about the reason for his non-attendance before the court and apply for getting his immovable property released from attachment within two years from the date of order of attachment. As indicated from the argument of the learned counsel, the petitioner was abroad and only at the time when the case was posted for trial that he came to know about the order of attachment pending against his property and by the time two years' period was already elapsed. Therefore, the petitioner has a genuine reason of non-awareness for not filing application for lifting his property from attachment within two years. 10. Therefore, as contemplated under sub-section (2), the property is at the disposal of the Government and the petitioner needs to approach it for getting his grievance redressed. Therefore, the petitioner has a genuine reason of non-awareness for not filing application for lifting his property from attachment within two years. 10. Therefore, as contemplated under sub-section (2), the property is at the disposal of the Government and the petitioner needs to approach it for getting his grievance redressed. The court below has observed accordingly and absolutely no reason is made out to view the order passed as illegal, improper and infirm. The immovable property of the petitioner, which was attached by the court is now at the disposal of the Government. Therefore, the remedy of the petitioner lies with the Government. The petitioner has to approach the Government and file appropriate application seeking to lift the property from attachment or if it was already sold, to deliver the sale proceeds to him. The court below has rightly observed that the petitioner has to approach the Government and seek for getting the relief. Solely for the reason that two years' period have already been elapsed, the claim of the petitioner who had proved himself to be non-negligent or out of wilful latches, shall not be defeated. The claim of the petitioner in the case on hand, being found by the trial court as a non absconder having been enlarged on bail, permitted to face trial, found not guilty of the offences charged against him by a court of law and ultimately acquitted for the offence under Section 138 N.I Act, to get his attached immovable property, released from attachment, needs to be treated differently. The elapse of two years now stands as a bar against the grant of relief to the petitioner. The trial court has already been convinced that the petitioner was not absconding or evading from attending the court wilfully. On such a finding being arrived at, eventhough two years' period has already been elapsed, without laches or negligence on the part of the petitioner, interest of justice demands consideration of the claim of the petitioner in his favour. In the result, the petition on hand stands allowed. Petitioner shall move application for the purpose before the Government. On such application being moved, the Government shall consider the same and pass appropriate orders disregard of the factum that his application is out of time ie. later than two years from the date of order of attachment. In the result, the petition on hand stands allowed. Petitioner shall move application for the purpose before the Government. On such application being moved, the Government shall consider the same and pass appropriate orders disregard of the factum that his application is out of time ie. later than two years from the date of order of attachment. The application shall be considered expeditiously and orders for lifting the property from attachment and releasing the same in favour of the petitioner or in case if it is already disposed of, releasing the sale proceeds thereof to him, shall be passed within a period of six months from the date on which the application is filed. The petitioner shall move an application as directed before the Government within two weeks from the date of receipt of a copy of this order.