Sivaraj and Others vs The State

Mr. Justice P.R. Shivakuma

Heard the submissions made by learned Senior Counsel representing the counsel on record for the petitioners and also the submissions made by Mrs. S. Prabha, learned Government Advocate (Crl.Side) representing the respondent. The revision petitioners in all these revision cases, who are eight in number, filed separate petitions before the learned Judicial Magistrate No. VI, Madurai in Crime No. 169 of 2011, praying for an order directing return of the cash that was available with the Court on the premise that the amount came to be recovered from one Vivekanandan @ Venkatesan, who had been arrayed as accused No. 1 in the said Crime Number on the file of the Inspector of Police, Thirunagar Police Station, Madurai. Each one of the revision petitioners claims to be entitled to an amount ranging from Rs. 5 lakhs to Rs. 15 lakhs. Admittedly, the case is still under investigation. The revision petitioners contended to be entitled to the amount as per their claims made in the petitions filed before the learned Judicial Magistrate No. VI, Madurai u/s 451 of Criminal Procedure Code, based on the allegation that they were cheated by the first accused/Vivekanandan @ Venkatesan with the help of his wife Brinda/A2 and his brother-in-law/Kevin/A3.

During the course of investigation, the first accused/Vivekanandan @ Venkatesan was allegedly arrested by the respondent on 01.05.2011 at Daligoa within the territorial jurisdiction of Panaji Police Station and based on his alleged confession, a sum of Rs. 1,22,00,000/- was allegedly recovered. Along with the said cash, three gold biscuits weighing one Kg. 100 gms and 100 gms respectively, three cars and a motor cycle also were said to have been recovered. But there is some difference between the total amount of cash mentioned in the alleged confession statement and the Recovery Mahazar. The petitioners in these revision petitions on the basis of their contention that each one of them was cheated of a sum ranging from Rs. 5 lakhs to Rs. 15 lakhs and the said amount forms part of the cash recovered from the first accused, sought entrustment of interim custody of the cash to them. Of course, all the revision petitioners had stated that they would execute necessary bonds and furnish necessary securities. Still the learned Judicial Magistrate chose to turn down their request and dismiss the petitions filed by them namely, Crl.M.P. Nos. 4027, 4028, 4034, 4031, 4029, 4032, 4033 and 4030 of 2011 in Crime No. 169 of 2011, stating that the property, interim custody of which was sought for, was not a perishable one and all the petitioners would not suffer loss if the same was allowed to be at the disposal of the court, since the amount had already been invested in Fixed Deposits and that it would not be in the interest of justice to assume that the property, namely, cash recovered from the first accused belonged to the petitioners.

The learned Judicial Magistrate seems to have taken such a stand taking into account the fact that none of the accused persons is now available and all of them including those who were allegedly arrested and by virtue of whose confession statement recoveries were made are at large. How they were allowed to flee is not known. If at all, it could be true that the accused would have cheated the petitioners, it cannot be said that the petitioners alone could have been the victims of such an offence. There may be several other persons who fell a pray to the trap, if any, laid by the accused persons, to make easy money by cheating them. In fact, hot cash of Rs. 1,22,00,000/- has been referred to in the confession statements as the cash available in the Paejero car, which the first accused was ready to identify and hand over to the police. But, unfortunately the Mahazar shows only a sum of Rs. 48,00,000 + Rs. 27,00,000/- + Rs. 9,85,000/- = Rs. 84,85,000/- to be the cash recovered from the first accused. In addition, three gold biscuits, totally weighing 1200 gms of four biscuits were also allegedly recovered. The same would account for at least Rs. 25 lakhs on the date of the alleged seizure. Three cars (with the marks Paejero, Cheverlot and Benz) and a two wheeler were also allegedly recovered. If the values of those properties are also taken into account, the amount would come more than the amount claimed by the persons who have lodged complaints at present. In such circumstances, that too, when the investigation is in the initial stage, as rightly held by the learned Judicial Magistrate, it shall not be in the interest of justice to entrust the interim custody of the cash to the petitioners.

The learned Senior Counsel appearing for the petitioners before this Court has submitted that the Court can consider the request of the petitioners as they are even prepared to give bank guarantee for the cash to be released in their favour. It is a known fact that if a person is to get a bank guarantee, either he should have an equal amount deposited in the bank or give security to the satisfaction of the banker to the extent of the bank guarantee. Of course, in the former case, a person getting the bank guarantee will get the benefit of earning interest for the deposit, whereas, in the later case, such benefit will not be there. Even if the amount is to be released in favour of the petitioners on condition that they must give bank guarantee, the benefit they are going to derive is only the interest out of the investment to be made for getting the bank guarantee, which shall be compensated by the interest that will accrue to the amount as the same has already been invested in Fixed deposits by the Court. Under such circumstances, this Court does not find any defect or infirmity, much less illegality in the impugned orders passed by the learned Judicial Magistrate and that the said orders need not be interfered with by this Court in exercise of its revisional power, especially, when the investigation is yet to be completed.

While coming to the conclusion that all the Criminal Revision Cases fail and they are bound to be dismissed, this Court heeds to the request of the learned Senior Counsel appearing for the revision petitioners and deems it appropriate to direct the Investigating Officer to make all efforts to secure the accused, complete the investigation and submit the final report at an early date, preferably within a period of three months from the date of receipt of a copy of this order. With the above direction, the Criminal Revision cases are dismissed.