Andhra Pradesh High Court - Amravati
M/S Manappuram Finace Ltd vs The State Of Andhra Pradesh on 1 May, 2024
1
APHC010643362023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
WEDNESDAY, THE FIRST DAY OF MAY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
CRIMINAL REVISION CASE NO: 1206/2023
Between:
M/s Manappuram Finace Ltd ...PETITIONER
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. S PRANATHI
Counsel for the Respondent(S):
1. PUBLIC PROSECUTOR (AP)
2. AKULA VAMSI KRISHNA
3. AKULA VAMSI KRISHNA
4. AKULA VAMSI KRISHNA
The Court made the following ORDER:
1. This Criminal Revision Case is filed by the Petitioner/Defacto
Petitioner
Complainant under Sections 397 and 401 of Cr.P.C.
Cr.P.C. seeking to modify the
order dated 04.12.2023, to the extent of conditions No. (i) (as modified vide
order dated 07.12.2023 in Memo and also condition No.(iii) passed in
Crl.M.P.No.454 of 2023 in Crime No.342 of 2023 ('impugned order') on the file
of V Additional Metropolitan Magistrate, Vijayawada (for short, "the trial Court").
2. The Petitioner/Defacto Complainant has filed a petition vide
Crl.M.P.No.454 of 2023 in Crime No.342 of 2023 before the V Additional
Metropolitan Magistrate, Vijayawada (for short, "the trial Court") seeking
interim custody of the 360 packets of gold items and 22 empty packets, 400
packets of gold items, 50 packets of gold items, and 46 packets of gold items
which were seized from the possession of the Respondents 2 to 5 to the
Petitioner/Defacto Complainant. The trial Court, through its order dated
04.12.2023, granted the Petitioner's request with certain conditions. Following
this, the Petitioner submitted a Memo dated 07.12.2023 before the trial Court,
seeking permission to provide a Bank Guarantee instead of a Fixed Deposit.
The trial Court granted the Petitioner's request to furnish a bank guarantee in
place of a Fixed Deposit.
3. It is apposite to refer the two conditions, which are as under:
"(i) Petitioner to give bank guarantee instead of fixed deposit
(as per Memo dated 07.12.2023).
(iii) The Petitioner/Defacto complainant is at liberty to return
the gold items to the concerned owner who pledged the gold
items when the customer discharges the loan amount availed
by them to the petitioner/complainant with a direction that not
to sell the gold items and not to alter the physical features
and with a further direction to the customer to produce gold
items positively, if the Court orders to be produced."
4. The case of the prosecution, in brief, is that the Petitioner/Defacto
Complainant operates as a Non-Banking Financial Company with its
registered office at "Manappuram House" in Kerala. A "M/s.Manappuram
Finance Limited" branch was established in Kankipadu, Krishna District,
catering to approximately 670 customers. When customers apply for gold
loans and submit the required documents, a list of pledged items is prepared
and provided to the customer, with a copy kept in the branch's records. In
October 2023, there was a theft of gold from the Petitioner's branch, allegedly
committed by company employees. The Area Head and Auditor of the
company confirmed that 951 gold packets were missing from the branch's
inventory out of a total of 1477 recorded as of October 7, 2023. The estimated
value of the missing gold is approximately Rs.3.87 crores, along with some
cash amounting to approximately Rs.2,30,627/-.A complaint was lodged by
the Area Head, leading to the registration of a criminal case for the alleged
offences. During the investigation, the Police, in the presence of mediators,
seized the following items: (1) From the 2ndrespondent: 360 packets with gold
items and 22 empty packets; (2) From the 3rd respondent: 400 packets with
gold items; (3) From the 4th respondent: 50 packets with gold items; and (4)
From the 5th respondent: 46 packets with gold items. The Petitioner is the
custodian of all the seized goods and is responsible for returning them to
customers upon request or clearance of their loans.
5. Considering the submissions made by learned counsel appearing on
both sides, the trial Court passed the impugned order. Aggrieved by the same,
the Petitioner/Defacto Complainant preferred this revision.
6. I have heard the learned Counsel for the Petitioner/Defacto
Complainant and learned counsel for the respondent Nos.2 to 5.
7. Perused the material on record.
8. Learned counsel for the Petitioner/Defacto Complainant argues that the
amount of Rs.4 Crores is substantial, and in cases like the present one
involving the return of goods, only the Petitioner itself can provide the bank
guarantee; the requirement for a surety to accompany the bank guarantee is
burdensome and challenging to fulfill; the directions for surety should only be
issued under Chapter XXXIII, typically when granting bail to the accused
individuals; instead, the trial Court should have considered directing the
Petitioner to issue the Bank Guarantee without requiring a surety; the
Petitioner, as a custodial of the gold articles, cannot impose conditions when
returning them to their owners. Furthermore, the learned counsel argues that
mandating the production of the gold items upon the trial Court's orders
contradicts the ruling of the Hon'ble Supreme Court in Sunderbhai Ambalal
Desai vs the State of Gujarat. They assert that modern technology allows for
property preservation through secondary evidence, negating the necessity to
maintain the original property for evidentiary purposes. Therefore, adequately
recorded documentation describing the features of the property, such as a
panchanama, would suffice.
9. From the arguments presented in the Revision and the submissions
made by both parties, it is evident that the Petitioner is aggrieved by the two
conditions imposed by the trial Court, as mentioned earlier.
10. The Petitioner's counsel contends that the learned Magistrate's directive
to provide a surety of Rs.4 crores, citing the difficulty in finding someone
willing to furnish such a substantial amount. The investigation is ongoing, and
a charge sheet has not yet been filed. Consequently, the Magistrate deemed it
necessary to issue a directive to produce the property as and when required.
11. In Sunderbhai Ambalal Desai V. State of Gujarat1, the Hon'ble Apex
Court held that:
7. In our view, the powers under Section 451 CrPC should be exercised
expeditiously and judiciously. It would serve various purposes, namely:
1. owner of the article would not suffer because of its remaining unused or
by its misappropriation;
2. court or the police would not be required to keep the article in safe
custody;
3. if the proper panchnama before handing over possession of the article
is prepared, that can be used in evidence instead of its production before
the court during the trial. If necessary, evidence could also be recorded
describing the nature of the property in detail; and
4. this jurisdiction of the court to record evidence should be exercised
promptly so that there may not be further chance of tampering with the
articles.
11. With regard to valuable articles, such as, golden or silver ornaments or
articles studded with precious stones, it is submitted that it is of no use to
keep such articles in police custody for years till the trial is over. In our view,
this submission requires to be accepted. In such cases, the Magistrate
should pass appropriate orders as contemplated under Section 451 CrPC at
the earliest.
(2002) 10 SCC 283
12. For this purpose, if material on record indicates that such articles belong
to the complainant at whose house theft, robbery or dacoity has taken place,
then seized articles be handed over to the complainant after:
(1) preparing detailed proper panchnama of such articles;
(2) taking photographs of such articles and a bond that such articles would
be produced if required at the time of trial; and
(3) after taking proper security.
13. For this purpose, the court may follow the procedure of recording such
evidence, as it thinks necessary, as provided under Section 451 CrPC. The
bond and security should be taken so as to prevent the evidence being lost,
altered or destroyed. The court should see that photographs of such articles
are attested or countersigned by the complainant, accused as well as by the
person to whom the custody is handed over. Still however, it would be the
function of the court under Section 451 CrPC to impose any other
appropriate condition.
12. Thus, power is available to the criminal courts under Section 451
Cr.P.C., to permit the owner or the persons entitled to sell the case
property even pending enquiry or trial, if the property is subject to speedy
and natural decay or, in other words, in the facts and circumstances of the
case, if the Court is of the view that such permission is required to be
granted. But, at the same time, in property offences and other types of
offences where the property is involved, the facts and circumstances of the
case may need the production of them as material objects as physical
evidence during the trial, reading Sections 451 and 452 of Cr.P.C., it is
seen that a converted form of such physical evidence may also be
produced before the Court at the time of trial. In Sunderbhai Ambalal
(supra), the Honourable Apex Court enabled the production of such
converted form of evidence of case properties.
13. The Hon'ble Apex Court in Sunderbhai Ambalal (supra) permitted
photographing of the material object and obtaining the signature of the
complainant and also of the accused thereon and keep them in the case-
records to be exhibited at the time of trial. Under this category video
graphing also will come.
14. In Sunderbhai Ambalal (supra), the Hon'ble Apex Court also
visualized a situation where the accused may refuse to sign/endorse. This
Court is of view that in a case where the accused disputes that he is not
involved in the alleged incident and no article was found from him then
such endorsement be taken on the photograph and his signature shall be
obtained. Thus, the interest of the prosecution, the interest of the property
owner, the need of the prosecution to produce it as evidence during trial
and the right of the accused will be protected.
15. The learned counsel representing the Revision Petitioner argues that
"Manappuram Finance" is a legally registered entity and is considered a
separate individual under the law. Furthermore, they contend that once the
jewels are returned to Manappuram Finance, it becomes obligatory for the
company to return the gold jewels to their respective owners in the event of
liability discharge. Therefore, the condition imposed by the trial court in the
impugned order is deemed impracticable and burdensome.
16. It is crucial to highlight that the power granted under Section 451 of
Cr.P.C., should be exercised expeditiously and judiciously, particularly during
the trial proceedings. This involves considering several factors:
a. Ensuring that the owner of the articles does not suffer due to its remaining
unused or being subject to misappropriation.
b. Avoiding the necessity for the court or police to keep the articles in safe
custody.
c. Ensuring that a proper panchanama (document detailing the terms and
conditions of the possession of property) is prepared before handing over
possession of the articles.
By taking these factors into account, the court can effectively and fairly
exercise its powers under Section 451 of the Cr.P.C.
17. Indeed, the trial court appears to have yet to consider that the
petitioner/finance company is registered under the Companies Act. Moreover,
it seems that the jewels were pledged with them, making the Petitioner the
"bailor" and the individuals who pledged their jewels the "bailee". In light of
this contention, the gold jewellery said to be recovered is in the Petitioner's
custody. Considering that they were stolen from the Petitioner/finance
company and later recovered along with cash by the Police, it is reasonable to
assert that the Petitioner/finance company is legitimately entitled to stake its
rightful claim for interim custody of the jewels.
18. Since neither the prosecution nor the accused have raised objections to
the impugned order, the order issued by the learned Magistrate regarding the
interim custody of the property cannot be deemed faulty in the facts of the
case.
19. A thorough examination of the conditions imposed by the trial court
reveals that the Petitioner is restricted from dealing with the jewellery in any
manner. Consequently, this Court acknowledges the validity of the Petitioner's
counsel's argument that these conditions will severely prejudice the Petitioner,
mainly since the Petitioner is engaged in the jewellery business and should be
allowed to deal with the jewellery during business. To demonstrate their good
faith, the Petitioner is willing to furnish a bank guarantee equivalent to the
value of the jewellery involved in the case. Given these circumstances, this
Court is inclined to modify the conditions as requested by the Petitioner.
However, a complication arises as the order of the learned Magistrate needs
to be more vocal regarding whether it has complied with the judgment of the
SUNDERBHAI AMBALAL case (cited supra) regarding the documentation of
the case property through photographs or videographs. Additionally, while the
accused persons did not object to the return of the property before the learned
Magistrate, they have taken a different stance in the revision proceedings. In
light of these facts, it is uncertain whether the production of the case property
at the time of trial is necessary or not.
20. As seen from the impugned order, it is apparent that A.1 to A.3 have
asserted that the allegations made against them by the petitioner/claimant are
false and far from the truth. They allege that these accusations were
fabricated solely to file the present petition and delay the legal proceedings,
mainly to prevent the issuance of bail orders.
21. Based on the material available on record, it is still being determined
whether the accused persons have provided a specific stance regarding
recovering the case property from them. Given this ambiguity, this Court
deems it appropriate to direct that the accused persons be directed to take a
clear position in the case. If the accused persons assert that they are not
involved in the alleged incident and that no articles were retrieved from them,
they shall be instructed to affix their signatures on the photographs of the case
property. These signed photographs shall be documented and marked as
evidence during the trial proceedings.
22. It's worth noting that a court of law can take photographs of valuable
articles as evidence. These photographs can be attested or counter-signed by
the complainant, accused, and the person to whom custody of the articles is
granted. Additionally, in cases involving valuable items such as gold
ornaments, possession should ideally be restored to the individuals from
whom they were taken through criminal acts like theft. This ensures fairness
and accountability in the legal process.
23. At this juncture, this Court believes that the Petitioner/Finance Company
has a legitimate entitlement to assert its rightful claim for interim custody of the
jewels in question. In this regard, the trial court should primarily consider the
aspect of possession and right of possession alone. From this perspective, the
impugned order in Crl. M.P.No.454 of 2023 in Crime No.342 of 2023, passed
by the trial court imposing the conditions mentioned above, seems
burdensome and onerous from the Revision Petitioner's point of view.
24. It is evident from the impugned order that the trial court did not adhere
to the directions provided by the Hon'ble Apex Court in the Sunderbhai
Ambalal Desai case (cited supra) before ordering the return of the property
with certain conditions. The trial court passed the impugned order without
following the guidelines set forth. Before passing the said order, the learned
Magistrate should have stated the reasons for evaluating the necessity of
production of the property during the trial proceedings. This failure to comply
with procedural requirements raises concerns regarding the legality and
appropriateness of the order.
25. In light of the preceding discussion, this Court deems it appropriate to
remand the matter with a directive to the learned Magistrate to adhere to the
procedural guidelines outlined in the Sunderbhai Ambalal Desai case. The
Magistrate should then pass suitable orders concerning the conditions
challenged in this proceeding, considering the established legal principles.
26. As a result, the Criminal Revision Petition is allowed, the impugned
order, dated 04.12.2023- to the extent of condition No. (i) (as modified
videorder dated 07.12.2023 in Memo and condition No. (iii) passed in
Crl.M.P.No.454 of 2023 in Crime No.342 of 2023 ('impugned order') on the file
of V Additional Metropolitan Magistrate, Vijayawada, is hereby set aside. The
trial Court is directed to restore Crl.M.P.No.454 of 2023 in Crime No.342 of
2023, on its file and to pass a reasoned, speaking order by considering the
principles laid down in the Sunderbhai Ambalal Desai case.
The trial Court is hereby directed to pass fresh orders in Crl.M.P.No.454
of 2023 in Crime No.342 of 2023 with utmost expediency. The trial Court
should impose necessary and reasonable terms and conditions as it deems
appropriate, considering the facts and circumstances of the case and following
the settled legal principles.
Miscellaneous applications pending, if any, shall stand closed.
_________________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 01.05.2024
MS / SAK
THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
CRIMINAL REVISION CASE NO.1206 OF 2023
Date: 01.05.2024
SAK
