IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.06.2011
CORAM:
THE HONOURABLE MS.JUSTICE R.MALA
Crl.R.C.Nos.1290 and 1291 of 2007
& M.P.Nos.1 and 1 of 2007
1. M.Ragu
2. A.Chandran .. Petitioners in both the Crl.R.Cs..
Vs.
1. S.Kumaresan
2. The Inspector of Police,
B/5, Singanallur Police Station,
Coimbatore-641 005.
(Crime No.456/2005) .. Respondents in both the Crl.R.Cs.
Criminal Revision Case No.1290 of 2007 to call for records and set aside the order dated 6.8.2007 made in Crl.M.P.No.557 of 2007 in C.C.No.14 of 2007 on the file of the Judicial Magistrate No.4, Coimbatore.
Criminal Revision Case No.1291 of 2007 to call for records and set aside the order dated 6.8.2007 made in Crl.M.P.No.558 of 2007 in C.C.No.14 of 2007 on the file of the Judicial Magistrate No.4, Coimbatore.
For petitioners : Mr.P.M.Duraiswamy
For respondents: Mr.K.R.Shankaran for R-1
Ms.MF.Shabana and Mr.C.Emalias,
Govt. Advocates (Criminal Side) for R-2
ORDER
The Crl.R.Cs. have been filed against the impugned orders passed in Crl.M.P.Nos.557 and 558 of 2007 in C.C.No.14 of 2007 on the file of the Court of Judicial Magistrate No.4, Coimbatore, directing the revision petitioners to return the material objects/properties and handed over to them for interim custody.
2. The averments in the petitions filed in Crl.M.P.Nos.557 and 558 of 2007 in C.C.No14 of 2007, are as follows:
The second respondent herein filed a case in Cr.No.456 of 2005 for the offence under Section 420 IPC against one Prakash and seized the properties (material objects), namely Silambu Rattinam (rpyk;g[ ,uhl;ozk;) and Pinky train and the same were produced before the Court on the basis of the complaint given by the petitioners and the first respondent herein. The petitioners and the first respondent herein are the partners and they have filed applications for interim custody of the properties and as per the order dated 20.6.2005 passed in Crl.M.P.No.4063 of 2005, the interim custody of Silambu Rattinam was granted in favour of the petitioners and the first respondent herein and they were directed to execute a bond for Rs.10 lakhs and similarly, by order dated 24.6.2005 passed in Crl.M.P.No.4469 of 2005, the interim custody of Pinky Train was granted in favour of the petitioners and the first respondent herein and they were directed to execute a bond for Rs.5 lakhs and further, with a direction that they should not alter or sell the properties. The petitioners and the first respondent herein complied with the said conditions and took away both the said properties and since the said properties were not under the custody of the first respondent herein, he has come forward with the applications to direct the petitioners herein (respondents 1 and 2 before Court below) to produce the properties and prayed for return of the properties.
3. The gist and essence of the counter affidavit in Crl.M.P.Nos.557 and 558 of 2007 in C.C.No14 of 2007, are as follows:
If any condition has not been complied with, action would be initiated only under Section 446-A of Cr.P.C., and the petitions are not maintainable. The first respondent is only name lender with regard to the properties and he has not invested even a single pie for the properties. The petitioners herein paid entire sum of Rs.5,10,000/- to the accused in this case. There is no breach of condition by the petitioners herein (respondents 1 and 2 before the Court below) and the Court has no jurisdiction to entertain the applications. The first respondent has to move the Civil Court for his grievance if any. Hence, the petitioners (respondents 1 and 2 before Court below) prayed for dismissal of the applications.
4. The trial Court, after considering the arguments of both sides’ counsel and after cancelling the bail bond, gave a direction to hand over the properties, namely pinky train and Silambu Ratinam to the Court, against which, the present Crl.R.Cs. have been preferred.
5. This Court heard the arguments of both sides’ counsel. It is admitted that the petitioners and the first respondent herein purchased the properties, namely Silambu Rattinam and Pinky Train from one Prakash, who is the accused in this case. Since he has not handed over the possession of the properties, i.e. Silambu Rattinam and Pinky Train, the petitioners and the first respondent preferred a complaint against the said Prakash and the second respondent herein registered a case in Cr.No.456 of 2005 for the offence under Section 420 IPC. During investigation, the said properties have been seized and produced before Court. The petitioners and the first respondent herein who are the partners, filed application for interim custody of the properties. After hearing the arguments, the trial Court ordered interim custody with the condition to execute the bond for Rs.10 lakhs, for Silmabu Rattinam and Rs.5 lakhs for Pinky Train, with condition that the petitioners and the first respondent herein shall not alter or alienate the said properties. In pursuance of the said order, both the petitioners and the first respondent executed the bond for Rs.10 lakhs and Rs.5 lakhs for the respective properties. The properties have been handed over to both the petitioners and the first respondent, but admittedly, now the properties are in possession of the petitioners herein. So, the first respondent herein has come forward with the applications before the Court below, for return of the properties.
6. The only point to be decided is as to whether the first respondent herein as a petitioner before the Court below, is entitled to file applications seeking direction for return of properties, which are the material objects in C.C.No.14 of 2007, from the petitioners herein.
7. Admittedly, both the petitioners and first respondent herein have earlier filed applications for interim custody and in pursuance of the order passed by the Court below, on the basis of the bond executed by the petitioners and the first respondent, the properties were handed over to both the petitioners and first respondent herein, which shows that joint possession has been given to the petitioners and the first respondent herein. Admittedly, now the first respondent herein is not in possession of the properties. The petitioners alone are in possession. So, the trial Court considered this aspect and when once possession has been given to all the three, and one of them, namely the first respondent herein was not in possession, and hence, the trial Court directed the petitioners herein to return the material objects before Court.
8. At this juncture, it is appropriate to consider the arguments advanced by learned counsel for the petitioners stating that the first respondent herein is only the name lender with regard to the properties and he has not parted with any amount, for purchase of the properties (material objects) and if at all he is having any grievance, he shall move the Civil Court for dissolution of the partnership and accounting, but he is not entitled to file applications seeking direction to the petitioners to return back the properties to the Court.
9. I do not find any force in the said argument, because the properties are seized in the criminal case and interim custody has been granted only on the basis of the applications filed by the petitioners and the first respondent herein, and on execution of the bond executed by all the three, i.e. the petitioners and the first respondent herein. At the time of granting interim custody of the material objects of the criminal case, the Court is empowered to impose conditions. If any condition is violated, the Court is empowered to cancel the earlier order and direct the parties to return the material objects before Court. In this case, on the basis of the complaint given by the petitioners and the first respondent herein, a case had been registered and material objects were seized and on the applications filed under Section 451 Cr.P.C., interim custody of the properties had been given to the petitioners and the first respondent with conditions.
10. Admittedly, the first respondent herein is not in possession of the properties. The petitioners herein alone are in possession. In such circumstances, the petitioners are not obeying the conditions imposed by the Court. Since the bond had been executed by all the three, namely the petitioners and the first respondent herein, and because of the violation of the order of Court, the petitioners are not entitled to retain the properties (material objects). The trial Court in the impugned orders, specifically mentioned that the interim custody of the material objects had been given to all the three, namely the petitioners and the first respondent herein, and the first respondent herein is not in possession of the properties and if any damage is caused to the material objects, it will cause hindrance to the trial of the criminal case and it would be very difficult to fix the liability as to who caused such damage to the properties. In such circumstances, the trial Court has cancelled the earlier order and cancelled the bail bond executed by all the three and directed the petitioners herein to return the properties.
11. Learned counsel appearing for the petitioners submitted that the Court is empowered to cancel the bond by invoking the provisions of Section 446-A of Cr.P.C. While perusing Section 446-A of Cr.P.C., it is seen that if any condition is not complied with, the Court can suo motu cancel the bond and bail bond. In this case, one of the parties, namely the first respondent herein, who is aggrieved by the activities of the revision petitioners (respondents 1 and 2 before lower Court), has come forward with the applications, and those applications are maintainable. So, the defence raised by the revision petitioners that the applications are not maintainable, does not merit acceptance.
12. Another argument advanced by learned counsel for the revision petitioners is that the first respondent herein ought to have filed a suit for dissolution of partnership. The material objects have been handed over to all the three, i.e. the petitioners herein and the first respondent herein. Admittedly, the properties are in possession of the petitioners herein, which gave rise to the cause of action for filing the applications before lower Court. In such circumstances, the argument advanced by learned counsel for the petitioners that the first respondent herein has remedy only before Civil Court by filing suit for dissolution of partnership and accounting, does not merit acceptance.
13. Considering the facts and circumstances of the case, I am of the view that the impugned orders of the trial Court do not warrant any interference.
14. Hence, the Crl.R.Cs. are dismissed as devoid of merits. The Miscellaneous Petitions are closed.
cs
To
1. Judicial Magistrate No.4, Coimbatore.
2. The Inspector of Police,
B/5, Singanallur Police Station,
Coimbatore-641 005. (Crime No.456/2005)
3. The Public Prosecutor, High Court,
Madras
