Allowed

Subhash Basheer v. State of Kerala

Kerala HC28 Oct 2020WP(C)/15244/2020

Case brief

AI extract

What is this about?

The petitioner challenged the freezing of his bank account via a direction under Section 102 Cr.P.C. by the investigating officer in a money-laundering case involving a disputed sale deed and civil agreement for re-conveyance. The court held that since the dispute is civil and the account balance is not integral to the offence, Section 102 Cr.P.C. does not apply.

What did the court decide?

The order/direction to freeze the bank account of the accused was set aside.

Subhash Basheer Vs State of Kerala — Money Laundering | Kerala HC (2020)

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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 P.SOMARAJAN

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WEDNESDAY, THE 28TH DAY OF OCTOBER 2020 / 6TH KARTHIKA, 1942

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WP(C).No.15244 OF 2020(E)

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PETITIONER:

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SUBHASH BASHEER, AGED 42 YEARS, S/o BASHEER, KULAPPURATH HOUSE, PARAKKODE P O, ADOOR, PATHANAMTHITTA DISTRICT - 691554.

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BY ADVS.SRI.MATHEW KURIAKOSE

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SRI.J.KRISHNAKUMAR (ADOOR)

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.

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2 THE COMMISSIONER OF POLICE, POLICE COMMISSIONERATE, KOCHI, ERNAKULAM- 682031.

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3 INSPECTOR OF POLICE (SHO), ERNAKULAM TOWN NORTH POLICE STATION, KACHERIPPADY, ERNAKULAM 682018.

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4 SOUTH INDIAN BANK LTD, EZHAMKULAM BRANCH, EZHAMKULAM, PARACODE P O, PATHANAMTHITTA DISTRICT- 691554, REPRESENTED BY THE BRANCH MANAGER.

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5 THE BRANCH MANAGER, SOUTH INDIAN BANK LTD, EZHAMKULAM BRANCH, EZHAMKULAM, PARACODE P O, PATHANAMTHITTA DISTRICT- 691554.

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ADDITIONAL R6 IMPLEADED

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R6 T.P.NANDAKUMAR, AGED 59 YEARS, S/o DAMODARAN NAIR, THIRUVATHIRA HOUSE, VAIRELIL NANE, PALLIPARAMBUKAVU ROAD, THRIPUNITHURA - 682301, ERNAKULAM.

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ADDL.R6 IS IMPLEADED AS PER ORDER DATED 20.08.2020 IN IA 1/2020 IN WP(C) NO.15244/2020.

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W.P.(C) No.15244 of 2020

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R6 BY ADVS. SRI.MANU TOM SRI.K.R.JITHIN SHRI.BALAMURALI K.P. SHRI.SHAJI T.M. R4 & R5 BY ADV. SRI. GEORGE VARGHESE R1 TO R3 BY PUBLIC PROSECUTOR SMT. V. SREEJA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.10.2020. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.15244 of 2020

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JUDGMENT

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The accused No.1 came up against the order/direction issued by the investigating officer under Section 102 Cr.P.C. for freezing the account of accused No.1 with a bank. A crime was registered alleging offence under Sections 406, 420 and 120B r/w Section 34 IPC and Section 17 of the Kerala Money Lenders Act, 1958. The allegation is that the defacto complainant executed a sale deed in favour of accused Nos.1 and 2 in the year 2016 so as to avail a bank loan. On the same day, an agreement for re-conveyance was also entered into by which they agreed to re-convey the property on payment of the loan. Ignoring the said agreement, in the year 2018, the property was sold to accused No.3 by accused Nos.1 and 2.

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The scope and impact of Section 102 Cr.P.C. is settled by this court in Suja v. Sub Inspector of Police, North Parur Police Station and another [2020 (5) KHC 368].

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It is not permissible either to seize or to freeze an account with the post office or with a bank unless the same would constitute an integral part of the offence committed.

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The test to be applied is to find out whether the investigation would stand incomplete or defective on

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account of the non seizure of the said property under

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W.P.(C) No.15244 of 2020

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Section 102 Cr.P.C. If the answer is affirmative, certainly the investigating officer can invoke the power under Section 102 Cr.P.C.

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What is involved is the execution of a sale deed and an agreement entered into subsequently for re-conveying the said property is the breach of obligation to perform the respective part of the contract. The fact that the property was subsequently sold to accused No.3 by accused Nos.1 and 2 was challenged in a civil suit and it is pending consideration. What is involved is really a dispute of civil nature. The amount stands in the name of accused No.1 with a bank, hence will not come under the purview of Section 102 Cr.P.C.

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Strange enough that a contention was raised by the

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respondents that the petitioner can invoke Section 451 Cr.P.C. to get interim custody of the property instead of lifting the freezing of the account. Section 451 Cr.P.C. would come into play only when there is physical seizure of the material. Freezing of a bank account not amounts to physical seizure of the material, but there is only a prohibition in operating the bank account. That does not mean that there is a physical seizure of the amount from the bank by the investigating officer. Hence there is no

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W.P.(C) No.15244 of 2020

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scope for invoking Section 451 Cr.P.C.

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The order/direction to freeze the bank account of the accused hence set aside. Writ petition is allowed

accordingly.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

W.P.(C) No.15244 of 2020

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APPENDIX OF WP(C) 15244/2020

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PETITIONER'S EXHIBITS:

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EXHIBIT P1		TRUE COPY OF THE DEED NO.4073 OF 2	RELEVANT PAGES OF SALE 016 OF SRO ERNAKULAM.
EXHIBIT P2		TRUE COPY OF THE 01.06.2016 PASSED OF MANOLOKAM GROU LTD.	RESOLUTION DATED BY THE BOARD OF DIRECTORS P PUBLISHING COMPANY PVT.
EXHIBIT P3		TRUE COPY OF THE OF ERNAKULAM TOWN	FIR IN CRIME NO. 958/2018 NORTH POLICE STATION.
EXHIBIT P4		TRUE COPY OF THE 2018 ON THE FILES MUNSIFF'S COURT,	PLAINT IN OS NO.1040 OF OF THE PRINCIPAL ERNAKULAM.
EXHIBIT P5		TRUE COPY OF THE BAIL APPL. NO.378 COURT.	ORDER DATED 13.07.2020 IN 9 OF 2020 OF THIS HON'BLE
EXHIBIT P6		TRUE COPY OF THE 22.07.2020 IN CRI ERNAKULAM TOWN NO	SEARCH LIST DATED ME NO. 958 OF 2018 OF RTH POLICE STATION.
EXHIBIT P7		TRUE COPY OF THE ISSUED BY THE CHA MANAGEMENT AUTHOR	ORDER DATED 20.07.2020 IRMAN, DISTRICT DISASTER ITY, PATHANAMTHITTA.
EXHIBIT P8		TRUE COPY OF THE PASS BOOK ISSUED REGARDING ACCOUNT	FIRST TWO PAGES OF THE BY THE FOURTH RESPONDENT NO.0382083000000170.
EXHIBIT P9		TRUE COPY OF THE 23.07.2020 ISSUED TO THE PETITIONER	COMMUNICATION DATED BY THE FIFTH RESPONDENT .
RESPONDENTS'	EXHIBIT	: NIL

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// TRUE COPY//

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P.A. TO JUDGE

Subhash Basheer v. State of Kerala

Case brief

What is this about?

What did the court decide?

Subhash Basheer v. State of Kerala

Case brief

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What did the court decide?

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