Sidharthan vs State of Kerala

K. Ramakrishnan, J.—This is an application filed by the petitioner who is the accused in Crime No. 289/2014 of Wadakkanchery Police Station challenging the order in Crl.M.P.No.1526/2014 of Judicial First Class Magistrate Court, Wadakkanchery under Section 482 of Code of Criminal Procedure.

It is alleged in the petition that petitioner is the sole accused in Crime No/289/2014 of Wadakkanchery Police Station alleging commission of the offence under Section 3 and 4 read with Section 17 of Kerala Money Lenders Act. The allegation is that on 15.02.2014 at about 11.30 a.m, the District Superintendent of Police (Rural), Thrissur got information that unauthorised money lending is being done from the house of Devaky and on that basis, they conducted a search and seized an amount of Rs.5,23,970/- and also other impugned documents and registered the above crime. The petitioner was arrested and thereafter, produced before court. Later, he was released on bail. The amount was obtained by him for the purpose of conducting his business and he was not engaged in money lending business as alleged. The same was obtained by taking loans from several banks. So, he filed an application as Crl.M.P.No.1526/2014 before the Judicial First Class Magistrate Court, Wadakkanchery for interim custody of the amount. But, the learned magistrate, by the impugned order, dismissed the application. This is being challenged by the petitioner by filing this petition.

Heard the Counsel for the petitioner and the learned Public Prosecutor.

The Counsel for the petitioner submitted that the court below was not justified in dismissing the application as such because there is no dispute regarding the fact that he is the person entitled to possess that amount and even the prosecution has no case that he is not the owner of the amount. So, the source of the amount is not a criteria to be considered for the purpose of releasing the amount for interim custody.

The learned Public Prosecutor opposed the application on the ground that the amount will be used for the purpose of continuing with the illegal money lending for the purpose of which the above case has been registered. So, according to the learned Public Prosecutor, there is no necessity to interfere with the order of the court below.

It is an admitted fact that on the basis of the search conducted by the Deputy Superintendent of Police, Rural, Thrissur with his team from the house of the petitioner, an amount of Rs.5,23,970/- was seized along with certain impugned documents which according to the prosecution is obtained by the petitioner from several persons as security for doing money lending business in an unauthorized manner and it is also an admitted fact that on the basis of the impugned articles seized, a crime was registered as Crime No. 289/2014 of Wadakkanchery Police Station against the petitioner alleging offences under Section 3 and 4 read with Section 17 of Kerala Money Lenders Act, 1958. The amount as well as the impugned articles seized from the house were produced before the court. Later, the petitioner filed an application for releasing the amount as interim custody as Crl.M.P.No.1526/2014 and he had produced several documents before the court below to show that the amounts were obtained by him by taking loans from different banks in connection with his business. He had produced Ext.P1 agreement to show that he is the authorized dealer for an Ice Cream Company at Kochi which is dealing with manufacture and sale of Ice Cream and other allied articles and according to the petitioner, the amounts were collected by him by taking loans from several banks, names of which have been mentioned in the petition itself and also produced certain documents to show that there are certain entries in the pass book showing withdrawal made by him on several occasions. But, that was disbelieved by the court below on the ground that, in none of the passbooks produced, so much amount was seen withdrawn on a particular day in a lumpsum near to the date of seizure and he had not given any explanation for the source of the amount as well. It may be mentioned here that, even assuming that he is doing money lending business, the source of amount is not a criteria, but the question is whether the amount was seized from his possession and he is entitled to get that amount as interim custody. Other things are not relevant for the purpose of considering this fact. Further care must be taken when such an amount is released as an interim custody, that this amount should not be used for such illegal purposes as well. Further, in the decision reported in Sasikumar Vs. State of Kerala, , this court has held that even if the amount is seized alleging offences under the Money Lenders Act, no purpose will be served by keeping the amount in court and that can be released as interim custody to the person from whose possession it was seized on deposit of sufficient security before the trial court. This court has in another decision considered the question of sufficient security before the court and held that it need not be necessarily cash security always and property security also can be provided to the satisfaction of that court making that property as a charge for the amount for releasing the amount and that will be sufficient. So, under the circumstances and also in view of the principles laid down in the above decision, the order of the lower court dismissing the application for interim custody of the amount is unsustainable in law and the same is liable to be set aside and the petition has to be allowed. But, the amount can be released on certain conditions. So, the petition is allowed and the order of the learned magistrate in Crl.M.P.No.1526/2014 is set aside and the application is allowed on following conditions:

i) The magistrate is directed to release the amount of Rs.5,23,970/- which is seized from the possession of the petitioner on executing a bond for Rs.5,25,000/- with two solvent sureties for the like sum each to the satisfaction of that court and also on furnishing property security for the amount of Rs. 5,23,970/-to the satisfaction of that court by executing a bond showing the property in the schedule as a security for this amount and the court making the property as a charge for this amount and the lower court is directed to inform the creation of such charge in the property to the concerned Registrar''s office so as to enter the same in the encumbrance register maintained in that office.

ii) That the petitioner shall file an undertaking in the form of an affidavit that he will produce the equivalent amount if ultimately he is liable to produce the amount before the court as and when directed by the court and also that he will not dispute the fact of seizure of the amount at the time of trial from his possession, so that, this can be used as an evidence at the time of trial to prove the seizure of the amount.

iii) Before releasing the amount, the magistrate is directed to get the details of the currency that has been produced taken down in the form of an inventory and keep it in the file for using this as part of evidence to prove the identity of the amount that has been seized in the search.

iv) The petitioner shall not use this amount for any illegal purpose.

With the above directions and observation, the petition is disposed of.

Office is directed to communicate this order to the concerned court immediately.