Bharath Overseas Bank vs Minu Publication

Padmini Jesudurai, J.—The two petitions, are by the Bharat Overseas Bank Limited, which is the complainant in ''X'' Cr. No. 790 of 1986,

pending investigation with the second respondent, registered against one Ramalingam (hereinafter referred to as accused) who is the husband of

Prema Ramalingam, the first respondent in Crl. M.P. No. 8865 of 1987 (hereinafter referred to us the first respondent) and are directed against

the orders passed under S. 451, Crl. P.C. by the Additional Chief Metropolitan Magistrate, Egmore, Madras, in M.P. Nos. 184 of 1987 and 208

of 1987, respectively holding the second respondent''s seizure of the amounts in the accounts of the accused and the first respondent in the

petitioner Bank as illegal, and directing the release of the amounts.

Facts briefly are: On a complaint by the petitioner to the second respondent, alleging that accused Ramalingam, who was employed as an

Officer in the petitioner Bank, had fraudulently collected large some of money from the branches of the Bank at George Town and Thiyagaraya

Nagar, through accounts opened in the name of the fictitious persons, by forging credit advices and other bank records, a case in Cr. No. 790 of

1986 for offence under Ss. 467, 468, 471 and 420, I.P.C. was registered. During investigation accused Ramalingam when examined gave details

of the transactions carried on by him. Investigation revealed that the accused had opened accounts in the different branches of the Bank, in the

names of fictitious persons, had forged credit advices and other documents and collected large sums of money from the Bank. To deploy the funds

so collected, the accused had opened several accounts in the names of himself and his family members in Banks and other Institutions. These

monies totalling Rs. 5,70,000 routed through different Banks, were ultimately paid to the accused, who deposited the same in the accounts opened

by him in his name and in the names of his family members. The second respondent, therefore, issued instructions to the bank not to permit the

accused and his family members to operate these accounts. The amounts, in the above accounts, were freezed.

The accused and his wife, the first respondent filed applications under S. 451, Crl. P.C, before the trial court, for releasing the funds and for

directing the Bank Authorities to permit them to operate their accounts. In both the petitions, the learned Magistrate, holding that under the Crl.

P.C. the police have no right to issue such prohibitory orders regarding bank balance, directed their release. Aggrieved with the above orders, the

petitioner has filed the present applications under S. 482, Crl. P.C. to have the orders of the Magistrate, set aside.

Thiru K. Asokan, learned counsel for the petitioner contended that the learned Magistrate erred in holding that the police had no powers, to

seize bank balance. The powers of seizure under S. 102, Crl. P.C, ought to be read in conjunction with the provisions contained in Chapter 34 of

the Code. According to the learned counsel, if during investigation, the police find, that money in a bank was obtained through the commission of a

crime or that a crime was committed regarding that money, then it is not only the right, but also the duty of a police officer, to freeze the bank

accounts, since that money has to be made available to the Court, for an order under S. 452, Crl. P.C, for restoration to the person entitled to it.

Learned counsel placed reliance upon certain decisions which I shall refer to presently.

Per contra Thiru S. Srinivasan, learned counsel for the first respondent and for the accused Ramalingam contended, that the bank funds are not

property"" and that under the Criminal Procedure Code, the police have no right to freeze bank funds, since the relationship between the bank and

its customer, is that of a debtor and a creditor and the bank is under an obligation to pay back the money, to the customer, as and when required

by the customer and once the money is deposited in the bank, the money loses its character and becomes unidentifiable, and the customer has only

a chose in action, to get back the amount and that, therefore, money in a bank cannot be seized. Learned counsel also contended that in the instant

case, the second respondent had not intimated about the seizure to the Magistrate, as is required under S. 102(3), Crl. P.C. and that, therefore,

there is no valid seizure and the order of the learned Magistrate has to be sustained. Learned counsel also placed reliance upon several decisions,

which I shall refer to presently.

Learned Public Prosecutor for the second respondent contended, that investigation disclosed that the accused had played fraud on a large scale

on the petitioner Bank, and the amounts collected through the commission of this offence, were deposited in the different accounts, standing in the

name of the accused and his family members and since these amounts were really obtained through the commission of a crime, the investigating

officer had to seize the same, as they were required, not only as evidence of the commission of the crime, but, also for enabling the trial court, to

pass consequential orders regarding them, at the conclusions of the trial. The investigating officer, therefore, wrote to the bank, not to permit the

holders of the above accounts to operate on them, since that was the only mode in which such bank balances, could be seized and preserved for

trial.

The short question that arises for consideration is whether money in a Bank account is ""property"" under S. 102, Crl. P.C. which a police officer

could seize during investigation?

S.102, Crl. P.C. dealing with the powers of the police to seize property, could be usefully extracted for an easy appreciation of the legal issue.

S.102, Crl. P.C. Power of Police Officer to seize certain property: (1) Any Police Officer may seize any property which may be alleged or

suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. (2) Such

Police Officer, if subordinate to the Officer-in-Charge of a police station, shall forthwith report the seizure to that Officer. (3) Every Police Officer

acting under sub-S.(1) shall forthwith report the seizure to the Magistrate having jurisdiction and whether the property seized is such that it cannot

be conveniently transported to the Court, he may give custody thereof, to any person on his executing a bond undertaking to produce the property

before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.

The first contention of the learned counsel for the second respondent and the accused, is that the money in a bank is not property within the

meaning of S. 102 and Chapter 34 of the Criminal Procedure Code. The word ""property"" has not been defined in the Criminal Procedure Code.

However, S. 2(y) of the Code assigns to works expressed and not defined, in the Criminal Procedure Code, but defined in the, the meanings

assigned to them in the Indian Penal Code. Even in the Penal Code the word ""Property"" as such, has not been defined, though the term ""moveable

property"" has been defined in S. 22, I.P.C. as follows:

The words ""moveable property"" are intended to include, corporeal property of every description, except land and things attached to the earth or

permanently fastened to anything, which is attached to the earth.

This definition is only inclusive nature but is not exhaustive. It merely indicates what would be included in the term ""moveable property"". The

Supreme Court in R.K. Dalmia Vs. Delhi Administration, , found it possible to hold that the word ""property"" occurring in Ss. 405 and 409, I.P.C,

should be given a wider meaning, since the word ""property"" is not qualified in those sections, by any other expression like ""moveable"". In the above

case, the accused were prosecuted and convicted inter alia for offences under Ss. 405 and 409, I.P.C, in that accused Dalmia, in his capacity as

Chairman of the Board of Directors and the principal officer of the Barath Insurance Company Ltd., and being entrusted with the funds of the

above Company, standing in the accounts of the various banks in which the company had current accounts, diverted the above funds to another

concern, the Bharath Union agencies, which was practically owned by him. To cover up this unauthorised transfer of funds, other offences had also

been committed. A contention, therefore, was raised on behalf of the accused, that the funds of the Bharath Insurance Company in the Chartered

Bank, Bombay which were alleged to have been misappropriated, were not ""property"" within the meaning of Ss. 405 and 409, I.P.C. since

property"", would refer only to moveable property and not to immovable property or to a chose in action. Rejecting the above contention, the

Supreme Court held that the meaning of the word ""property"" in the Indian Penal Code, cannot be restricted to moveable property alone and would

include other kinds of property, depending upon the context in which it occurs. After quoting the following passage from an earlier decision of the

same Court in The Delhi Cloth and General Mills Co. Ltd. Vs. Harnam Singh and Others,

the Supreme Court finally held in R.K. Dalmia Vs. Delhi Administration, that the expression ""funds"" in the charge means, the amounts credited to

the Bharath Insurance Company Ltd. in the accounts of the Bank and this was ""property"" within the meaning of S. 405, I. P.C. The above decision

is an authority for the proposition, that a bank balance, which is a chose in action is nevertheless ""property,"" with the reference to which ""Offences

against Property"" found in Chapter 17 of the Indian Penal Code, could be committed.

The provisions of Chapter 34 of the Criminal Procedure Code, dealing with disposal of the property seized, will also have a bearing on the

interpretation of the term ""property"" in S. 102, Criminal Procedure Code While S. 457 of the Code, deals with orders that could be passed with

reference to property, during investigation and before the commencement of any trial or enquiry, S. 451, Crl.P.C, deals with orders that could be

passed for custody and disposal of property, pending trial or enquiry, and S. 452, Criminal Procedure Code with orders to be passed, after the

conclusion of trial. The limited re-imbursement to persons, who had purchased stolen property without knowing or having reason to believe that

the same was stolen, is provided for, in S. 453, Criminal Procedure Code in that if any money was taken from the possession of the convicted

person at the time of his arrest, the Court could order, that out of such money, a sum not exceeding the price paid by such purchaser, be delivered

to him. S. 456 of Criminal Procedure Code, provides for restoration of possession of immovable property to any person, who has been

dispossessed, by commission of an offence, in which criminal force was used.

It would now be useful to refer to the object behind investing the police with powers of seizure. Seizure and production in court of any

property, including those regarding which an offence appears to have been committed or which appears to have been used for the commission of

any offence or any other property will have a two-fold effect. Production of the above property may be necessary as evidence of the commission

of the crime. Seizure may also have to be necessary, in order to preserve the property, for the purpose of enabling the Court, to pass suitable

orders under S. 452 of the Criminal Procedure Code at the conclusion of the trial. This order would include destruction of the property,

confiscation of the property or delivery of the property to any person claiming to be entitled to possession thereto. It cannot be contended that that

the concept of restitution of property to the victim of a crime, is totally alien to the Criminal Procedure Code. No doubt, the primary object of

prosecution is punitive. However, Criminal Procedure Code, does contain several provisions, which seek to re-imburse or compensate victims of

crime, or bring about restoration of property or its restitution. As S. 452, Crl. P.C, itself indicates, one of the modes of disposing of property at the

conclusion of the trial, is ordering their return to the person entitled to possession thereto. Even interim custody of property under Ss. 451 and 457,

Crl.P.C, recognises the rights of the person entitled to the possession of the properties. An innocent purchaser for value is sought to be re-

imbursed by S. 453, Crl. P.C. Restoration of immovable property under certain circumstances, is dealt with under S. 456, Crl. P.C. Even,

monetary compensation to victims of crime or any bona fide purchaser of property, is provided for under S. 357, Crl. P.C. Wherein when a Court

while convicting the accused imposes fine, the whole or any part of the fine, if recovered, may be ordered to paid as compensation to any person,

for any lose or injury, caused by the offence or to any bona fide purchaser of any property, after the property is restored to the possession of the

person entitled thereto. This two-fold object of investing the police with the powers of seizure, have to be borne in mind, while setting this legal

issues.

Reference can now be made, to some of the decisions relied upon by the learned counsel for the second respondent. In Prafulla Kumar Deb v.

Suresh Chandra Deb AIR 1952 Ass 24, wherein, on a complaint for an offence under Ss. 420 and 406, I.P.C, on the allegation, that the accused

received from the complainant a sum of Rs. 7,025 on a promise that he would pay him half the profits of a contract which he had obtained, and

when contrary to the promise, the accused got payments from the P.W.D. and did not pay the amount to the complainant and had therefore,

committed the offence under Ss. 406 and 420, I.P.C, and the trial court, by an order directed the Executive Engineer, P.W.D. to stop payment of

pending bills to the accused, to the extent of Rs. 7,025 the High Court struck down the above order on the ground, that the order is in the nature

of an attachment before Judgment and in a criminal case, the accused was presumed to be innocent till he was adjudged guilty. The above facts,

have no analogy to the present case.

In In re Lloyds Bank Limited, a Division Bench of the Bombay High Court, quashed the order passed by the trial Court, issuing a search

warrant and recovering Rs. 4,000 from the Bank, on a complaint alleging that the accused had stolen a bank cheque, forged the signature of the

complainant and had withdrawn Rs. 6,000 and had deposited Rs. 5,000 in the Savings Bank Account of the Bank. Here again, the Court found

that the money was no part of the proceeds of the offence and had no real connection with the subject matter of the charge. No doubt, the Court

has also observed, that the accused had a credit for Rs. 4,000, an actionable claim for that amount, and that claim could be proved, but it could

not be produced in Court.

Similarly, in Makkan Lal Charterjee v. Emperor 1937 Cri. L.J. 935, a Division Bench of the Calcutta High Court, set aside a stop-order

served by the Magistrate on the Bank, to prevent the accused from operating on the account, on the ground that there was nothing to show that the

money in the Bank, was part of the proceeds of the cheating or breach of trust and also because the relationship of a banker and a customer, is

that of a debtor and the creditor and the Magistrate therefore could not pass such an order.

The principle that the relationship between a banker and a customer is that of a debtor and a creditor, has been reiterated by a single Judge of

this Court in K.P. Menon and another v. Punithavathi Manian 1987 L.W. Cri. 55 : 1987 1 Cri 891 The learned Judge has referred to several other

decisions which bring out the above principle.

In Attorney General of Canada v. Quebec Province AIR 1947 P.C. 844, the Privy Council held, that money deposited with the bank is not

trust money, on the contrary, it is money that is lent for use to the Bank, and the only obligation under which the Bank lies, is to repay a like sum in

the like currency.

In view of the decision of the Supreme Court, in R.K. Dalmia Vs. Delhi Administration, already discussed above, the rulings relied on by the

learned counsel for the second respondent, would have little or no bearing on the issue.

A division bench of the Punjab and Haryana High Court in Dr. Gurcharan Singh v. The State of Punjab 1978 80 P.L.R. 514, upheld the

prohibitory order issued by the Superintendent of Police, Vigilance, investigating into an offence under S. 5 of the Prevention of Corruption Act,

1947, prohibiting the accused from operating his account in a bank and freezing his fixed deposit amount in another Bank, holding that money in a

bank account is ""property"" capable of being seized under S. 102, Crl.P.C. This, I feel, reflects the correct position of law.

In modern days, where commission of white collar crimes and bank frauds, are very much on the increase and banking facilities, have been

extended to the remotest rural areas, interpreting the term ""property"" in S. 102, Crl.P.C in a way, as to exclude money in a bank, would have the

effect of placing legal hurdles, in the process of investigation into these crimes, which could never have been the intent of the framers of the Criminal

Procedure Code. In view of the wide meaning given to the term property in S. 452(5), Crl. P.C. as including, in the case of property regarding

which an offence appears to have committed, not only such property as was originally in the possession, but also any property into which it might

have been converted or exchanged and also anything acquired by such conversion or exchange, whether immediately or otherwise, to put too

narrow a construction on the term ""property"" occurring in S. 102, Crl. P.C. would be against the very spirit of the Criminal Procedure Code.

Expanding the ratio of R.K. Dalmia Vs. Delhi Administration, and reading it in the light of S. 2(Y), and the provision of Chapter XXXIV of the

Crl. P.C, I feel no difficulty in holding that money in an account in a bank, is ""property"" for the purpose of S. 102, Crl.P.C.

The next consideration would be whether such a bank balance, is capable of being seized by the investigating officer. The only act of

ownership, which the customer of the bank exercise over his bank balance, is operating the account, either by making deposits or by withdrawing

the same, in any mode made available to him by the bank. When corporeal tangible property is seized by taking physical possession and producing

it in Court, the seizure is intended to have the effect, of preventing the person from whom it is seized, from exercising any acts of ownership or

possession over that property. The property, therefore, is physically removed from his possession and is produced before the Court. The Court

takes possession of the property and has thus prevented the person, from exercising acts of ownership or possession over them. The only way, in

which such an effect can be brought about, regarding bank balance, is to issue a prohibitory order, restraining the customer from operating his

account in the bank, either by remittance or by withdrawal. This act of preventing the customer from exercising any right over the bank balance,

constitutes seizure of the bank balance, which in ordinary parlance is described as ""freezing"". The consequences that flow from freezing a bank

balance, following a prohibitory order, are the same, as those that flow from the physical removal of any moveable property, following a seizure.

It therefore follows that money in an account in a bank is ""property"" within the meaning of S. 102, Crl.P.C, which could be seized by

prohibiting the holder of the account, from operating it.

The learned counsel for the first respondent also contended that the seizure of the bank balance by the second respondent is illegal, since the

latter has not reported about the seizure to the Court, as required under S. 102(3), Crl.P.C. Not every blow in investigation, would invalidate

proceedings. It would be premature now, to judge prejudice to the accused. If the second respondent has not reported about the seizure to the

Court yet, he shall do the same forthwith. In the event of a trial, it would be open to the accused to put forward this plea of prejudice in the light of

the facts available.

In the result the orders passed by the learned Magistrate in M.P. No. 184 of 1987 and M.P. No. 208 of 1987 are set aside. The petitions are

ordered accordingly.