Partly allowed

Benny Varghese v. the State of Kerala

Kerala HC28 Nov 2016Crl.MC/4434/2016

Case brief

AI extract

What is this about?

In a criminal miscellaneous matter regarding proceeds of crime, the High Court directed release of cash seized from an accused cheated of a loan to the petitioner, the buyer of the fraudulently sold vehicle, subject to a bank guarantee, while remanding consideration of utility for a seized scooter.

What did the court decide?

The Learned Magistrate directed to release the cash seized from the 2nd respondent to the petitioner subject to furnishing a bank guarantee; the scooter case remanded for fresh consideration regarding

Benny Varghese Vs the State of Kerala — Cheating and Forgery | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

¶4

MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938

¶5

Crl.MC.No. 4434 of 2016 ()

¶6

CRIME NO. 1271/2015 OF ERNAKULAM TOWN SOUTH POLICE STATION, ERNAKULAM

¶7

PETITIONER/PETITIONER:

¶8

BENNY VARGHESE AGED 51 YEARS, S/O. T.T VARGHESE, THOTTIPARAMBIL HOUSE, THANIKKAL-KEERTHI NAGAR ROAD, ELAMAKKARA P.O, KOCHI 682 026 WORKING AS MANAGER, MAGNA AUTOMOTIVE USED CAR SHOW ROOM PALARIVATTOM P.O KOCHI 682 025,ERNAKULAM

¶9

BY ADVS.SRI.C.HARIKUMAR SRI.RENJITH RAJAPPAN

¶10

RESPONDENTS/RESPONDENT/COMPLAINANT AND PETITIONERS IN CONNECTED CASES:

¶11

---------------------------------------------------------------1. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA THROUGH S.I OF POLICE ERNAKULAM 682 031 2. STATE BANK OF INDIA ERNAKULAM SOUTH BRANCH, S.A ROAD PANAMPILLY NAGAR, ERNAKULAM 682 036 A BODY CORPORATE CONSTITUTED UNDER THE STATE BANK OF INDIA ACT ARUN C S/O. CHANDRABALAN KOCHI 682 025,ERNAKULAM

¶12

3. VIBIN A S/O. VENUGOPAL, AGED 27 YEARS, NOW RESIDING AT ROOM NO 6 CROWN PLAZA, MARADU ERNAKULAM 682 304

¶13

R BY SRI. BOBAN PALAT BY PUBLIC PROSECUTOR SRI.T.R.RENJITH BY SRI.TOM K.THOMAS

¶14

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 2811-2016,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶15

Crl.MC.No. 4434 of 2016 ()

¶16

APPENDIX

¶17

PETITIONER(S)' ANNEXURES

¶18

--------------- ANNEXURE A1	-------- THE TRUE COPY OF THE ELECTION IDENTITY CARD DATED 29-1-2011 OF THE PRELEEJ PHILIP ZACHARIA
ANNEXURE A2	THE TRUE COPY OF THE INSURANCE COVER NOTE ISSUED BY THE NATIONAL INSURANCE COMPANY DATED 18-09-2015
ANNEXURE A3	THE TRUE COPY OF THE VEHICLES SALE AGREEMENT DATED 10-10-2015
ANNEXURE A4	THE TRUE COPY OF THE NO OBJECTION CERTIFICATE FOR TERMINATION OF HYPOTHECATION WITH BANK ISSUED BY THE 2ND RESPONDENT AND CONTAINING ITS SEAL
ANNEXURE A5	THE TRUE COPY OF THE RC BOOK OF THE CAR BEARING REG. NO KL-28 B 9882
ANNEXURE A6	THE TRUE COPY OF THE SALE CERTIFICATE DATED 18-09- 2015
ANNEXURE A7	THE TRUE COPY OF THE ROAD TAX TOKEN DATED 1-10-2015
ANNEXURE A8	THE TRUE COPY OF THE POWER OF ATTORNEY DATED 18-02- 2016 ISSUED BY THE OWNER OF THE VEHICLE IN FAVOUR OF THE PETITIONER FOR THE TRANSFER OF THE HONDA ACTIVA SCOOTER BEARING REG. NO KL 7 BP 3921
ANNEXURE A9	THE TRUE COPY OF THE FIR NO 935 OF 2015 ALONG WITH THE F1 STATEMENT OF THE KUMARAKAM POLICE STTION, KOTTAYAM DATED 21-10-2015
ANNEXURE A10	THE TRUE COPY RECEIPT ISSUED BY THE S.I OF POLICE, KUMARAKOM ON SEIZURE OF THE VEHICLE VOLKS WAGON POLO CAR BEARING REG. NO KL 28 B 9882 DATED 21-10- 2015 FROM THE PETITIONER
ANNEXURE A11	THE TRUE COPY OF THE REPORT FILED BY THE S.I OF POLICE E.T SOUTH POLICE STATION DATED 05-02-2016 BEFORE THE HON'BLE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT (E.O), ERNAKULAM
ANNEXURE A12	THE TRUE COPY OF THE PETITION IN C.M.P NO 395 OF 2016 IN CRIME NO 1271 OF 2015 ON THE FILE OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT (E.O) ERNAKULAM DATED 4-3-2016
ANNEXURE A13	CERTIFIED COPY OF THE COMMON ORDER DATED 8-4-2016 IN CRL MP NO 206 OF 2016 ,C.M.P NO 395 OF 2016 AND CMP NO 420 OF 2016 IN CRIME NO 1271 OF 2015 OF THE E.T SOUTH POLICE STATION, ERNAKULAM ON THE FILE OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT (E.O) ERNAKULAM

¶19

PTO

¶20

RESPONDENTS ANNEXURES:

NIL

/TRUE COPY/

VPS PS TO JUDGE

RAJA VIJAYARAGHAVAN.V, J

¶25

----------------------------------------

¶26

Crl.M.C. No.4434 of 2016

¶27

-----------------------------------------

¶28

Dated this the 28^th day of November, 2016

¶29

O R D E R

¶30

1.The 3^rd respondent herein, Sri.Vipin K., impersonating an individual by name Preeleej Philip Zacharia and with the aid of forged documents, approached the State Bank of India, the 2^nd respondent herein, and availed a loan for a sum of Rs.7,85,000/- for purchasing a Volkswagen Car. Without suspecting any fraud or malpractice, the loan was disbursed on the belief that the documents submitted by the 3^rd respondent was authentic and genuine.

¶31

2.It appears that thereafter the 3^rd respondent approached the petitioner herein and offered to sell the Volkswagen Polo Car bearing registration No.KL-28-B-9882 purchased as aforesaid. They entered into a vehicle sales agreement, which is produced as Annexure-A3, and on the petitioner

¶32

Crl.M.C.4434/2016 2

¶33

paying a sum of Rs.5,25,000/- to the 3^rd respondent towards consideration, the possession of the car was handed over to the petitioner.

¶34

3.While so, the 3^rd respondent was arrested in connection with Crime No. 656 of 2015 of the Kumarakom Police Station registered for offences under sections 380, 461, 468 and 471 of the IPC. In the course of interrogation, the 3^rd respondent confessed about the commission of the Crime involving the car. On its basis, Crime No.935 of 2015 of the Kumarakom Police Station was registered for offences punishable under sections 420, 467, 468, 471 and 472 of the IPC. The crime was later transferred to the Ernakulam Town South Police Station and re-registered as Crime No.1271 of 2015.

¶35

4.When the 3^rd respondent was arrested, a sum of Rs.1,08,080/- was found in his possession. On the basis of the information given by the 3^rd respondent, a sum of Rs.1,00,000/-, which was handed over to his landlord,

¶36

Crl.M.C.4434/2016 3

¶37

was seized by the police, being the proceeds of the crime. A mobile phone and a Hero Honda Activa Scooter were also seized. While the matter was pending as aforesaid, separate claims were raised in respect of cash as well as the scooter, which were seized from the possession of the 3^rd respondent by the accused as well as the petitioner herein. The Bank also raised a claim for the cash seized.

¶38

5.All the three claims were considered together by the learned Magistrate and by a common order, which is produced as Annexure-A13, the claim petitions were dismissed, holding that each of the parties had raised tenable claims over the same. The cash was deposited in the Cr.CD to safeguard the interest of the rightful claimant to be adjudicated at a later stage. The aforesaid order is under challenge in this petition.

¶39

6.Though notice was issued to the 3^rd respondent, the same could not be served. Permission was sought to serve notice on the counsel who appeared for the 3^rd respondent

¶40

Crl.M.C.4434/2016

¶41

¶42

before the court below and a memo has been filed before this court reporting that the notice was served. However, no one appears for the 3^rd respondent.

¶43

7.I have heard the learned counsel appearing for the petitioner, the learned standing counsel appearing for the 2^nd respondent as well as the learned Public Prosecutor.

¶44

The learned counsel appearing for the petitioner at the outset itself referred to Annexure-A3 vehicle sales agreement and Annexure-A9 FIR and forcefully argued that the amount found in the possession of the accused could only be that of the petitioner herein, and in that view of the matter, the learned Magistrate had erred in dismissing the application. It is further asserted that the investigation conducted revealed in clear terms that the amount came into the possession of the accused by defrauding the petitioner and therefore the amount could not have been considered to be the “personal assets” of the accused. It is further urged that the Bank cannot

¶45

Crl.M.C.4434/2016

¶46

¶47

raise a valid claim over the properties as the possession of the Car has already been handed over to the 2^nd respondent by the Court. It is pointed out that this Court in subsequent proceedings challenging the imposition of various conditions had permitted the Bank to dispose of the vehicle and to appropriate its proceeds. In that view of the matter, there is no justification for the Bank to raise any claim over the cash, is the submission advanced. According to the learned Counsel, the Claim of the Bank will be limited to the claim of custody of the hypothecated vehicle which was seized from the possession of the petitioner. The learned Counsel would also rely on the decisions of this Court in Giji V A.K. Gopinathan Nair [1995 (2 ) KLT 695 ], Sunderbhai Ambalal Desai V State of Gujarat [2002 (10) SCC 283 ], Ashok Kumar V State of Kerala [2012 (4)KHC 134] to bring home his point.

¶48

9.The learned counsel appearing for the 2^nd respondent

¶49

Crl.M.C.4434/2016

¶50

¶51

opposed the submissions advanced and contended that it is as a direct consequence of the fraudulent act of the accused, that the bank has suffered a loss of about Rs.8,00,000/-, which is mounting day by day. Even if the vehicle is sold at this particular stage, the bank will be able to realize only less than half the public money disbursed to the accused. The amount of Rs.2,25,080/-, which was recovered from the accused, is clearly the amount which was obtained after selling the car purchased using the loan availed by defrauding the Bank. According to the learned counsel, there is no reason for interference with the considered order of the learned Magistrate. Summing up, it is submitted that the 3^rd respondent is not having any other assets and in that view of the matter, the Bank is likely to sustain huge loss if the cash is handed over to the petitioner.

¶52

10.The learned Public Prosecutor on instructions submits that the learned Magistrate has considered all aspects in

¶53

Crl.M.C.4434/2016

¶54

¶55

its proper perspective and have concluded that the rival claims are not to be entertained at this particular stage.

¶56

11.I have considered the rival submissions and have gone through the materials on record.

¶57

12.The specific case of the prosecution is that after defrauding the Bank, the 2^nd respondent had sold the vehicle to the petitioner and obtained a sum of Rs.5,25,000/-. It is also the admitted case of the parties that the Bank has instituted O.S. No 1407 of 2015 against the 2^nd respondent and others for realization of the amount due to them. There is merit in the submission of the petitioner that the 2^nd respondent, from whom the cash was seized, is not entitled to the same as the money had come into his possession in pursuance to the commission of a crime. The entitlement of the Bank is to realize the amount from the 2^nd respondent for which a suit has already been instituted. The sequence of events and the documents produced by the petitioner clearly

¶58

Crl.M.C.4434/2016

¶59

¶60

would reveal that the money found in the possession of the accused had flown from the hands of the petitioner and none else. In that view of the matter, I am of the considered view that the amount deposited in the Cr.CD by the Court below can be released to the petitioner subject to stringent conditions. It is reiterated that grant of interim release of the cash to the petitioner shall not be construed to mean that the entitlement of the claim of the cash has been finally adjudicated. This order is passed solely for making an arrangement for the proper custody of the amount till the final disposal of the proceeding.

¶61

13.Accordingly, the learned Magistrate is directed to release the cash seized from the possession of the 2^nd respondent to the petitioner subject to appropriate conditions which shall include furnishing of Bank guarantee for the said amount. In respect of the scooter seized, the learned Magistrate has taken the view that the petitioner has not produced any material to establish his contention that he

¶62

Crl.M.C.4434/2016 9

¶63

was entitled to interim custody. In so far as the vehicle is concerned, the Court below is directed to consider the matter afresh and pass appropriate orders as the utility of the scooter will be diminished, if the same is left unused.

¶64

The petitioner will be at liberty to produce all such documents to establish his claim over the same.

¶65

Petition is disposed of as above .

¶66

Sd/RAJA VIJAYARAGHAVAN.V. JUDGE

¶67

vps

Benny Varghese v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Benny Varghese v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Chappan Puthiya Purayil Moosan Kunhi Vs State of Kerala

George Vs State

Binu Krishnan Vs State of Kerala

Mani Vs State of Kerala

Afsal Kalarikettiparambathu Vs the State of Kerala

Prakash Panavelil Vs State of Kerala