Sasikumar vs State and Others

S. Nagamuthu, J.

The petitioner in all these revisions is one and the same person. All these revisions have arisen out of a common order made by the learned Judicial Magistrate No. VI, Madurai in Crl.M.P. Nos.1262 of 2015, 972 of 2015 and 1305 of 2015. Since common issues are involved, all these revisions were heard together and disposed of by means of this common order.

The facts of the case in brief would be as follows:

One Suriya finance, which is a partnership Firm is having its business place at 701 Karpagam Nagar, 7th Street, K.Pudur, Madurai. One Mr.K.Thangavel, the 2nd respondent herein in all these revisions claims to be a partner. Mr. Thangavel made a complaint to the first respondent police alleging that one Mr. Rajendran, Sathish, Manickam, Karthick and Kumar have stolen away the movable properties belonging to the Firm including cash to the tune of Rs. 21,19,000/- together with certain registers, cheque books etc. On the said complaint, the first respondent registered a case in Crime No. 160 of 2005 under Section 381 Cr.P.C.

2.1. During the course of investigation, the first respondent arrested the petitioner herein based on a confession given by one of the named accused and then recovered a sum of Rs. 90,000/- from him. In connection with the same case, the first respondent recovered a sum of Rs. 60,000/- from one Mr. Saravanan, who is the landlord of the petitioner. Similarly, on the confession of the petitioner, the first respondent arrested one Mr. Karuppasamy (7th accused) and from him, he recovered a sum of Rs. 18,44,650/-. The petitioner was arrayed as 6th accused and Mr. Karuppasamy was arrayed as 7th accused. They were later on remanded to judicial custody. The above said cash recovered from the petitioner, the 7th accused and Mr. Saravanan were produced before the learned Judicial Magistrate No. VI, Madurai.

2.2. Subsequently, the second respondent herein filed Cr.M.P. Nos.972 of 2015 under Section 451 Cr.P.C. for return of Rs. 18,44,650/-, which was recovered from the 7th accused. Similarly he filed Cr.M.P. No. 1305 of 2015 under Section 451 Cr.P.C. for return of Rs. 1,50,000/-, which was recovered from the petitioner and Mr. Saravanan and also for certain other properties. The petitioner herein filed a memo of objection for the return of these properties to the 2nd respondent. That memo of objection was treated as a Criminal Miscellaneous Petition and numbered as Cr.M.P. No. 1262 of 2015. In the said petition, the petitioner herein claimed that the entire amount recovered from all the three persons, belong to a partnership Firm known as Jeyamurugan Finance, which has got nothing to do with the Suriya Finance. The learned Judicial Magistrate No. VI, Madurai, by a common order dated 10.04.2015 allowed Cr.M.P. No. 972 of 2015 and 1305 of 2015 thereby returning the entire cash to the 2nd respondent and dismissed the Cr.M.P. No. 1262 of 2015. Challenging the said common order, the petitioner has come up with these revisions.

I have heard the learned Senior counsel for the petitioner, the learned Government Advocate (Crl. Side) for the first respondent and Mr.P.Ganapthi Subramaniam for the 2nd respondent and I have also perused the records carefully.

There is no dispute that a sum of Rs. 90,000/- was recovered from the petitioner and Rs. 60,000/- was recovered from Saravanan and Rs. 18,44,650/- was recovered from the 7th accused. Now, there is a dispute as to whom the money belongs to. As per the settled law, if the learned Judicial Magistrate is not in a position to decide as to whom the money belongs to, the Magistrate is bound to keep the money in safe custody of the Court till the disposal of the case and to make a final adjudication under Section 452 Cr.P.C. later. But in this case, the learned Judicial Magistrate has followed a curious procedure by recording the statement on oath from the petitioner as well as the 2nd respondent. The learned Senior counsel for the petitioner calls it as sworn statement of the partners. I do not understand as to how and under what authority, the learned Judicial Magistrate has recorded such a statement. It is a common knowledge that such a statement may be recorded from a complainant under Section 200 and a witness under Section 202 Cr.P.C., or from the witness under Section 164 of the Code of Criminal Procedure. For the purpose of deciding the issue under Section 451 Cr.P.C., the learned Judicial Magistrate has got no power or authority at all to record such a statement, on oath, from the parties. It is needless to point out that to hold summary enquiry, the Magistrate can permit the parties to lead evidence, which means examining the parties on oath, and permitting the parties to file documents. But, the learned Judicial Magistrate, has followed a strange procedure in simply recording the statement of the parties, on oath, though this procedure is illegal. Therefore, the common order based on the same deserves to be interfered with. Not only on the above stated ground, the learned Judicial Magistrate ought to have dismissed all these petitions on several other grounds as dealt with infra.

Admittedly, as per the FIR, the cash was stolen from Suriya Finance, which is a partnership Firm. The partnership Firm is a legal entity. If at all anybody can claim the amount, the partnership should make a claim and not the 2nd respondent. On this score, the claim made by the 2nd respondent should have been dismissed. Similarly, the petitioner claims that the money belongs to Jeyamurugan Finance, which is yet another partnership Firm. No claim has been made by the said Finance, which is a partnership Firm. It is interesting to note that the petitioner has not even made any claim for return of money. He filed only objection before the Court by filing a memo. That was treated as a Criminal Miscellaneous Petition and numbered as Cr.M.P. No. 1262 of 2015.

A perusal of the said memo would go to show that the petitioner objected to the return of the cash to the 2nd respondent herein and he has not made any claim for return of the same. But the learned Senior counsel would submit that in the statement recorded on oath from him, the petitioner has not made a claim. In my considered view, if at all the petitioner has got any claim for the amount, he would have made appropriate petition under Section 451 Cr.P.C and that should have been disposed of by affording sufficient opportunity to the adverse party. Above all, admittedly, the money to the tune of Rs. 18,44,650/- was recovered from the 7th accused and Rs. 60,0000/- was recovered from Saravanan. Unfortunately, the learned Judicial Magistrate had not issued any notice to them and afforded opportunity. Thus, the learned Judicial Magistrate has committed a grave error in allowing Cr.M.P. Nos.972 of 2015 and 1305 of 2015. Thus, the order of the learned Judicial Magistrate in Cr.M.P. Nos.972 of 2015 and 1305 of 2015 deserves to be set aside.

So far as the order in Cr.M.P. No. 1262 of 2015 is concerned, since the petitioner cannot have any valid claim, as the claim should be only made by the partnership Firm, Jeyamurugan Finance, no interference is required in the order of dismissal of Cr.M.P. No. 1262 of 2015.

In the result,

(I) Crl.R.C.I(MD) No. 191 of 2015 is dismissed and the order in Cr.M.P. No. 1262 of 2015 passed by the trial Court is confirmed.

(ii) Crl.R.C.(MD) Nos. 213 and 214 are allowed and the order in Cr.M.P. Nos.972 and 1305 of 2015 are set aside.

It is made clear that Suriya Finance, which is a partnership firm, Jeyamurugan Finance, which is also a partnership firm, the 7th accused, Mr. Saravanan, or anybody else, who has got rightful claim over the amount shall be permitted by the learned Judicial Magistrate, for making appropriate applications and if any such petition so filed, the learned Judicial Magistrate shall issue notice to the petitioner and all the interested parties, including the persons from whom cash was recovered and then dispose of the said petitions in accordance with law. It is made clear that in the event, the Magistrate is not able to come to the conclusion as to who is entitled for the cash, the learned Judicial Magistrate will be at liberty to retain the amount in the custody of the Court till the disposal of case and finally to dispose of the same under Section 452 Cr.P.C. Consequently connected Miscellaneous Petitions are closed.