Kumara Banu vs Muthoot Finance Limited and Others

Pradeep D. Waingankar, J. - Petitioner has filed this petition under Section 482 of Cr.P.C. to quash the order dated 20.03.2013 passed by the Additional District and Sessions Judge, Dakshina Kannada, in Crl.R.P. No. 63/2011.

Petitioner lodged a complaint before Surathkal Police Station against one Mayyadi and his wife Jubeda for the offences punishable under Sections 407 and 420 of IPC which came to be registered in Crime No. 41/2011. It is alleged in the complaint that the accused persons known to her. They requested her to give her gold ornaments for the purpose of their business. They promised to give commission to the petitioner out of the profits earned by them in their business. They also told the petitioner that they would return the gold ornaments within one month. Believing the words of accused, the petitioner parted with her gold ornaments to the accused. The accused failed to return the gold ornaments even after one month. On the other hand, they left the village without informing the petitioner. Petitioner lodged a complaint and thereby aforesaid crime came to be registered.

During the course of investigation, the police arrested the accused and based on their voluntary statement, recovered gold ornaments from the possession of respondent No.2-Muthoot Finance Limited Branch at Kavur in Mangalore. The seizure was reported to the Chief Judicial Magistrate at Mangalore. The petitioner filed an application under Sections 451 and 457 of Cr.P.C. for the interim custody of the gold ornaments seized. So also, the respondent Nos. 1 and 2-Muthoot Finance Limited filed an application under Sections 451 and 457 of Cr.P.C. for interim custody. Both the applications were heard by the Chief Judicial Magistrate who inturn allowed the application filed by the petitioner while rejecting the application filed by the respondent Nos. 1 and 2. The Magistrate ordered to handover the gold ornaments to the custody of the petitioner on the ground that it is at the instance of the complaint filed by the petitioner, the gold ornaments were recovered. Aggrieved by the order of rejection of the application filed by the respondent Nos. 1 and 2 by order dated 30.04.2011, the respondent Nos. 1 and 2 preferred Criminal Revision Petition before the II Addl. District and Sessions Judge, Mangalore. The learned Sessions Judge upon hearing the parties, partly allowed the revision petition and ordered to keep the ornaments in safe custody till the conclusion of the trial by order dated 20.03.2013.

It is this order passed by the Sessions Judge is sought to be quashed by the petitioner/complainant on the ground that it is perverse and opposed to established principles of law.

Heard the learned counsel for the petitioner, learned counsel for respondent Nos. 1 and 2 and learned Government Pleader for respondent No. 3/State.

During the course of arguments, the learned counsel for the petitioner placing reliance on the decision of this Court in CRP No. 516/2013 dated 30.12.2014 and Crl.P. No. 7048/2011 dated 26.06.2015 would submit that in view of the aforesaid decisions, the petitioner is entitled for the custody of the gold ornaments and therefore the impugned order passed by the Sessions Judge is liable to be quashed.

I have perused the both the decisions. They cannot be made applicable to the facts of this case. In both the decisions the learned Magistrate had allowed the application filed by the petitioner/complainant for interim custody of the gold ornaments in a similar type of cases. But the order passed by the Magistrate was confirmed by the Sessions Judge. But here in this case the order passed by the magistrate is set aside by the learned Sessions Judge.

Admittedly, the gold ornaments were pledged by the accused to respondent No. 2 from whom the accused obtained loan amount. The respondents cannot be called as receiver of the stolen property. The accused are known to the petitioner. The gold ornaments were parted by the petitioner to the accused for the purpose of their business. She was assured of commission by the accused out of the profits derived from their business. The ornaments were recovered from the possession of respondent No. 2. The petitioner did not produce any documents to show her ownership over the ornaments. Under such circumstances, since the ornaments were seized from the possession of respondent No. 2, respondent No. 2 is entitled for interim custody of the ornaments. Be that as it may, now the learned Sessions Judge set aside the order passed by the Magistrate by exercising the discretion and has ordered to keep the gold ornaments in safe custody till the conclusion of the trial. Under these circumstances and having regard to the fact that the petitioner has not produced any documentary evidence to show her ownership and that the ornaments were seized from the possession of the respondent No. 2, it appears that the learned Magistrate proceeded on the assumption that the respondent Nos. 1 and 2 are the receivers of stolen property. But in fact they are not. By pledging the ornaments loan amount has been obtained by the accused. The learned Magistrate lost sight of this advancement of loan by the respondent No. 2 and the recovery of the loan. For all these reasons, I do not find merit in the petition filed by the petitioner.

Accordingly, the petition is dismissed.