Partly allowed

Rehna Sainan v. State of Kerala

Kerala HC26 Jun 2019Crl.MC/2553/2019

Case brief

AI extract

What is this about?

Petitioner challenged additional conditions imposed by Sessions Court requiring sureties to provide bank guarantee or title deeds as security for bond execution. Court relied on precedent to modify conditions allowing release on production of third-party title deeds with affidavit.

What did the court decide?

Modified impugned order to allow petitioner to produce original title deeds of specific immovable property of complainant or third party as security instead of strict bank guarantee requirement.

Rehna Sainan Vs State of Kerala — Money Laundering | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941

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Crl.MC.No.2553 of 2019

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AGAINST THE ORDER/JUDGMENT IN CRRP 87/2013 of ADDITIONAL DISTRICT COURT (ADHOC), ERNAKULAM DATED 28-11-2013

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PETITIONER/S:

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REHNA SAINAN, AGED 45 YEARS WIFE OF SAINAN, THURUTHU VEETIL, KOTTEKKAVU, POOYAPPILLY, VADAKKEKKARA, NORTH PARAVUR, ERNAKULAM DISTRICT.

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BY ADV. SRI.L.RAJESH NARAYAN

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031

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2 MUTHOOT FINCORP LIMITED,

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REP. BY ITS SENIOR AREA MANAGER, PRAVEEN BABU, EMMY SQUARE, NEAR DREAM HOTEL, ERNAKULAM, VYTTILA, COCHIN-682 019

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OTHER PRESENT:

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SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.2553 of 2019

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ALEXANDER THOMAS, J .

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Crl.M.C.No.2553 Of 2019

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Dated this the 26^th day of June, 2019.

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O R D E R

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The prayer in the above Criminal Miscellaneous Case filed

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under Sec.482 of the Code of Criminal Procedure is as follows:

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“.......... to scale down inappropriate and harsh conditions imposed in Annexure A2 order and allow the petitioner/claim petitioner to execute the bond by production of original title deeds of third party, in the interest of justice. ”

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The petitioner has filed a claim petition before the jurisdictional Magistrate Court concerned (Judicial First Class Magistrate Court-I, Ernakulam), in respect of the matter in Crime No.978/2012 of Palarivattom Police Station, seeking grant of interim custody of the gold ornaments seized in connection with the said crime wherein she is the defacto complainnt. According to the petitioner, the accused person in the said crime had obtained the gold ornaments of the petitioner to be pledged with the 2^nd respondent-finance company and thereby the accused persons had cheated the petitioner by not returning the gold ornaments. Apart from the said petition, a Claim Petition was filed by the finance company. The learned Magistrate as per the impugned

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Crl.MC.No.2553 of 2019

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Anx-A1 common order dated 27.7.2013 has allowed the Claim Petition filed by the petitioner herein and had dismissed the Claim Petition filed by the 2^nd respondent herein. The Claim Petition was allowed as per Anx-A1 order with the following conditions in paragraph 26 which reads as follows:

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“26. In the result, the interim custody of the gold ornaments is granted to the petitioner in 4574/2012 subject to the order in CMP No.665/2013 and upon the following conditions.

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1. Petitioner shall execute a bond for Rs.10,00,000/- with two solvent sureties each for the like sum.

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2. Petitioner shall not make any alteration to the gold ornaments sought to be released and shall return it in the same condition as described in the seizure mahazar.

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3. The petitioner shall not sell or otherwise dispose of the gold ornaments.

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4. Petitioner shall produce the aforesaid gold ornaments before this court as and when required.

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5. Petitioner shall furnish colour photograph of the gold ornaments clearly depicting its patters and design.

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6. The petitioner shall produce Original identity proof for verification and shall submit the true copy of the same.”

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Anx-A1 order was challenged in revision by the 2^nd respondent before the Sessions Court which has ended in dismissal as per Anx-A2. Further as per Anx-A2 a further condition was imposed that the sureties shall produce bank guarantee for the bond amount or title deeds of their immovable properties together with documents which are sufficient to prove that the properties are free from charge, litigation, attachment, mortgage or any other liability. The petitioner's limited grievance is directed only against that stipulation. According to the learned

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Crl.MC.No.2553 of 2019

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counsel for the petitioner the actual release of the gold ornaments stands impossible due to the nature of the condition newly stipulated in Anx-A2 order issued by the revisional Sessions Court. The said impugned conditions are given in the final paragraph of Anx-A2 order given on page 7 thereof reads as follows:

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“In the result, this revision petition is allowed in part and the order passed by the lower court giving interim custody of the gold ornaments to the defacto complainant/petitioner in Crl.M.P.4574/2012 is confirmed subject to an additional condition that the sureties shall produce bank guarantee for the bond amount or title deeds of their immovable properties together with documents which are sufficient to prove that the properties are free from charge, litigations, attachment, mortgage or any other liability.”

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The petitioner essentially places reliance on Anx-A-3

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order dated 27.3.2017 rendered by this Court in Crl.M.C.No.612/2014 in a similar case, wherein this Court had relaxed such similar condition by holding that deposit of title deeds by the defacto complainant could be acted upon and had thus directed release of gold ornaments on production of title deeds of third parties as well. It will be pertinent to refer to the final paragraph (para 10) of Anx-A3 order dated 27.3.2017 rendered by this Court in Crl.M.C.No.612/2014 (given on pages 6-7 thereof), which reads as follows:

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“10. Having regard to this, revisional court was perfectly justified in imposing an additional condition that the petitioner herein shall furnish either a bank guarantee or shall furnish sufficient property security to cover the value of the property, to satisfy all claims that arise in this transaction. Having considered

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Crl.MC.No.2553 of 2019

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this, I feel that the impugned order of the trial court as modified by the Sessions Court is liable to be confirmed with certain clarifications. It is made clear that the de facto complainant shall produce either a bank guarantee for the bond amount or produce the original title deed of a specific immovable property having value covering the bond amount either belonging to the de facto complainant or that of any other third party, provided an affidavit is filed by the person having interest over the property, offering Crl.M.C.Nos.612/14. 1758/14 and 1759/14 7 the property as security towards any liability that may arise in the above loan transaction. It is made clear that for fixing the approximate value of the security offered, it will not be essential to produce a valuation certificate, but Court can rely on the valuation mentioned in the affidavit and the other facts like the extent and nature of property. Court below has not confined to bank guarantee alone but it has given an option to the de facto complainant to offer property security, which I feel will serve the interest of justice.”

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It is beyond any dispute that this case is identical or almost similar to the one covered by Anx-A3 order. Accordingly, it is ordered that the impugned directions issued by the revisional Sessions Court as given on final paragraph of Anx-A2 order will stand modified in terms of the directions issued by this Court in para 10 of Anx-A3 order. In other words, it is ordered that the directions and orders given by this Court in para 10 of Anx-A3 order will regulate the present case as well. Accordingly, it is made clear that the de facto complainant will be at liberty to either produce bank guarantee for the bond amount or produce the original title deed of a specific immovable property having value covering the bond amount either belonging to the de facto complainant or that of any other third party, provided an affidavit is filed by the person having interest over the property, offering

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Crl.MC.No.2553 of 2019

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the property as security towards any liability that may arise in the above loan transaction. It is further made clear that for fixing the approximate value of the security offered, it will not be essential to produce a valuation certificate, but Court can rely on the valuation mentioned in the affidavit and the other facts like the extent and nature of property. Accordingly, the impugned conditions in AnxA2 order rendered by the revisional Sessions Court will stand modified as above.

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With these observations and directions, the above Crl.M.C will stand finally disposed of.

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Sd/ALEXANDER THOMAS, Judge.

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bkn/-

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Crl.MC.No.2553 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF THE COMMON ORDER PASSED BY JFCM -II (IN CHARGE OF JFCM-I), ERNAKULAM IN CRL.M.P. NOS 4574/2012 AND 1960/2013 DATED 27.07.2013

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ANNEXURE A2 TRUE COPY OF THE ORDER DATED 28.11.2013 PASSED IN CRL. RP NO. 87/2013 PASSED BY THE ADDITIONAL SESSIOS JUDGE (AD-HOC-I), ERNAKULAM. ANNEXURE A3 TRUE COPY OF THE ORDER DATED 27.03.2017 PASSED BY THIS HON'BLE COURT IN CRL.MC. 612/2014

Rehna Sainan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rehna Sainan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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