Baby Joju @ Joju K.B vs Komalavalli
2021 Latest Caselaw 17454 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                     THE HONOURABLE MR. JUSTICE K.HARIPAL
     THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
                          W.P.(C.) NO. 13724 OF 2021
PETITIONER:

            KOMALAVALLI
            AGED 58 YEARS
            W/O.PREMACHANDRAN, GOKULAM (H),
            VIJAYANAGAR, THANAVU,
            OLAVAKKODE, PALAKKAD.

            BY ADV. L.RAJESH NARAYAN


RESPONDENTS:

    1       STATE POLICE CHIEF
            POLICE HEAD QUARTERS,
            THIRUVANANTHAPURAM - 695 001.

    2       DISTRICT POLICE CHIEF
            DISTRICT POLICE OFFICE,
            YAKKARA ROAD,
            NEAR KSRTC BUS STAND,
            PALAKKAD - 678014.

    3       SUPERINTENDENT OF POLICE
            DISTRICT POLICE OFFICE,
            YAKKARA ROAD,
            NEAR KSRTC BUS STAND,
            PALAKKAD - 678 014.

    4       SUB INSPECTOR OF POLICE,
            PALAKKAD TOWN NORTH POLICE STATION,
            MARKET ROAD, POLICE QUARTERS,
            VADAKKANTHARA,
            PALAKKAD - 678 001.

            BY SRI. RENJITH T.R., SENIOR PUBLIC PROSECUTOR



     THIS     WRIT    PETITION   (CIVIL)   HAVING   BEEN   FINALLY   HEARD   ON
24.08.2021, ALONG WITH Crl.M.C.1720/2021, THE COURT ON 26.08.2021
DELIVERED THE FOLLOWING:
 W.P.(C.)No.13724 OF 2021 &

Crl.M.C. No. 1720 OF 2021            2




             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE K.HARIPAL
     THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
                      CRL.M.C. NO. 1720 OF 2021
     CRIME NO. 64/2021 OF PALAGHAT TOWN NORTH POLICE STATION,
                                  PALAKKAD
PETITIONER/ACCUSED NO. 1:

           BABY JOJU @ JOJU K.B.
           AGED 51 YEARS
           S/O. K.O. BABY, KODIAYATH HOUSE, VIJAYAPURAM COLONY,
           THIRUNELLAYI P.O, PALAKKAD.

           BY ADV. V.A.JOHNSON (VARIKKAPPALLIL)


RESPONDENTS/DEFACTO COMPLAINANT & STATE:

     1     KOMALAVALLI
           AGED 60 YEARS
           W/O. PREMACHANDRAN,
           GOGULAM HOUSE, VIJAYANAGAR,
           THANAVU, OLAVAKKODE,
           PALAKKAD-678 002

     2     STATE OF KERALA,
           REPRESENTED BY PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA,
           ERNAKULAM-682 031

           R1 BY ADV.L.RAJESH NARAYAN
           R2 BY SRI. RENJITH T.R., SENIOR PUBLIC PROSECUTOR



      THIS CRIMINAL MISC. CASE HAVING HAVING BEEN FINALLY HEARD
ON   24.08.2021,   ALONG   WITH   W.P.(C.).13724/2021,   THE   COURT   ON
26.08.2021 DELIVERED THE FOLLOWING:
 W.P.(C.)No.13724 OF 2021 &

Crl.M.C. No. 1720 OF 2021           3




                              JUDGMENT

Since common questions are involved, both these matters

were heard together and are disposed of by this common

judgment.

2. W.P.(C.) No. 13724/2021 is filed under Section 226 of

the Constitution of India by the informant in Crime No. 64/2021

of Palghat Town North Police Station which was registered

against the petitioner in Crl. M.C.No.1720/2021, hereinafter

referred to as the first accused, and another alleging offence

under Sections 406, 420 read with Section 34 of the Indian Penal

Code. The petitioner wants to issue a writ in the nature of

mandamus commanding respondents 1 to 3 to initiate action on

Ext.P3 complaint filed before the third respondent and handover

investigation to the Crime Branch. On the other hand Crl. M.C.

No. 1720/2021 is filed by the first accused in the said crime for

quashing the proceedings pursuant to the registration of the

crime. In other words, the reliefs sought for by the parties are

somewhat cutting each other.

W.P.(C.)No.13724 OF 2021 &

3. The petitioner says that she is in utter financial straits;

her husband is a returnee from the Persian Gulf; she has two

daughters; the husband of the first daughter was suffering from

acute cancer, for the treatment they had to incur huge liabilities;

they had pledged gold ornaments, 1861.20 gms in Ahalya Money

Exchange and Mini Muthoot. Later her son-in-law passed away

due to cancer; her second daughter is a divorcee, she has to look

after the daughters and their children. As they incurred huge

liabilities, they decided to sell off the residential house and the

property, thus one Hamsa, the second accused in the crime,

introduced the first accused to them and he agreed to purchase

the property. Meanwhile, he agreed to facilitate release of

1861.20 gms of gold pledged in two financial institutions and

those gold ornaments were taken by him. The agreement was

that when the sale of the property takes place, after adjusting the

sale proceeds, gold ornaments will be given back to them. The

grievance of the petitioner is that even though the gold

ornaments were released from the financial institutions, the first

accused backed out from the agreement to purchase the property W.P.(C.)No.13724 OF 2021 &

and the house and thus cheated them. The crime was registered

on that basis alleging offence under Sections 406, 420 read with

34 of the Indian Penal Code. The argument of the petitioner is

that the first accused is highly affluent and influential, under his

influence, investigation is not moving on proper direction,

accused are not being arrested and thus she wants investigation

to be transferred to the Crime Branch.

4. As directed by this Court, the District Police Chief filed

a detailed statement. From the statement dated 26.07.2021, it is

clear that two crimes have been registered against the first

accused, one is Crime No. 752/2020 in Hemambika Nagar police

station under Sections 448, 427 and 506(i) of the Indian Penal

Code; on completion of investigation, charge sheet has already

been laid; now the case is pending as C.C. No. 482/2021 before

the Jurisdictional Magistrate. The second is the present crime

i.e., Crime No. 64/2021 of Palghat Town North police station.

From the statement, it is evident that the first accused had got

released 1861.2 gms of gold ornaments pledged by the petitioner

in two financial institutions by incurring Rs.65 lakhs, which is W.P.(C.)No.13724 OF 2021 &

now kept by him.

5. The total market price of the said gold is estimated

Rs.83.5 lakhs; the first accused paid Rs.65 lakhs and thus the

actual loss sustained by the petitioner is Rs.18.5 lakhs.

According to the District Police Chief, the investigation is in

progress, more documentary evidence have to be collected, that

the accused could not be arrested. He could not collect any

evidence connecting the involvement of the second accused, the

said Hamsa. He has further stated that he has no objection to

handover the investigation to the Crime Branch as prayed for.

6. The Crl. M.C., as already stated, is for quashing the

entire proceedings in Crime No. 64/2021 of Palghat Town North

police station. By an interim order, this Court had directed the

Investigating Officer not to seize the gold ornaments from the

first accused.

7. I heard the learned counsel for the petitioner, the first

accused and also the learned Senior Public Prosecutor.

8. The learned counsel for the petitioner submitted that the

1st accused was introduced to her family by the 2 nd accused as a W.P.(C.)No.13724 OF 2021 &

big businessman running jewelleries and investments in business

concerns, he has high connections and using the clout,

investigation is being subverted by him. On the other hand, the

learned counsel for the 1st accused submitted that the petitioner

has numerous cheating cases to her credit, that he is being

intimidated with the help of anti-social elements, that he is

interested only in getting back the money expended by him in

releasing the gold from the financial institutions.

9. In the nature of the contentions of the parties, I do not

think it necessary to delve deep into the merits of the matter.

Now the broad facts are very clear. The petitioner and her family

are in dire financial straits. In connection with the treatment of

her son-in-law, huge quantity of gold ornaments had to be

pledged. Her son-in-law passed away and they were unable to

take back the gold ornaments; at that time, they thought of even

selling the residential house and the property and the first

accused was introduced to her in such a situation, who had

promised to purchase the property and the building. Whatever it

may be, that did not get through. Now it is clear that he had W.P.(C.)No.13724 OF 2021 &

helped the petitioner in getting the gold released from the

financiers. 1861.20 gms of gold pledged by the petitioner were

released from the financiers by paying Rs. 65 lakhs by the first

accused. The gold is now in the possession of the first accused.

This Court does not make any observation with regard to the

legality or otherwise of keeping that gold by the first accused.

But it is quite patent that he had to expend a big amount of Rs.65

lakhs for releasing the gold from the financiers; that could be

possible only at the instance and junction of the petitioner who

had actually pledged the gold. Questions whether he had

committed criminal breach of trust etc., are at the realm of

investigation. Let the Investigating Officer take a call on it

basing on materials collected by him.

10. Having considered rival contentions and materials, it

seems that there is no harm in handing over the investigation to

the Crime Branch, as agreed to by the District Police Chief.

11. Therefore, the writ petition is allowed to that extent.

As a necessary corollary, the prayer for quashing the

investigation proceedings is out of place. Let the investigation W.P.(C.)No.13724 OF 2021 &

be continued by the Crime Branch.

12. During the course of argument, it was suggested that

the matter can be referred for mediation; the first accused is also

prepared to give back the gold provided the amount incurred by

him is repaid by the petitioner. It seems that the petitioner is not

in a position to arrange so much money. In the circumstances, the

apprehension of the first accused that if the gold is seized during

investigation, he will be deprived of the gold as well as the

money, have to be given due weight. It has also come out from

the statement of the Investigating Officer and the District Police

Chief that all necessary documents have been collected with

regard to the quantity of gold released by the first accused from

the financiers. In other words, there is proper account of the gold

taken possession by the first accused, which no doubt belongs to

the petitioner. So long as there is proper account of the gold and

since the contentions of the parties are mutually exclusive, it

does not seem that during investigation the gold need be

recovered by the police. All the same, police shall ensure that

the subject matter is preserved during the course of investigation. W.P.(C.)No.13724 OF 2021 &

Subject to the above, the writ petition and the Crl. M.C. are

disposed of.

Sd/-

K.HARIPAL

JUDGE

DCS/25.08.2021 W.P.(C.)No.13724 OF 2021 &

APPENDIX OF W.P.(C.)NO. 13724/2021

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 1/12/2020.

EXHIBIT P2 TRUE COPY OF THE COMPLAINT DATED 6/1/2021.

EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED 11/2/2021.

EXHIBIT P4 TRUE COPY OF THE COMPLAINT DATED 11/2/2021 BEFORE THE MINISTER.

EXHIBIT P5 TRUE COPY OF THE COMPLAINT DATED 11/2/2021 BEFORE THE COLLECTOR.

EXHIBIT P6 TRUE COPY OF THE FIR NO.64/2021 DATED 12/2/2021 WITH FIS.

W.P.(C.)No.13724 OF 2021 &

APPENDIX OF CRL.M.C. NO.1720/2021

PETITIONER'S ANNEXURES:-

ANNEXURE A CERTIFIED COPY OF THE F.I.R NO.64/2021 OF PALGHAT TOWN NORTH POLICE STATION, PALAKKAD ALONG WITH F.I. STATEMENT.

ANNEXURE B TRUE COPY OF THE BANK STATEMENT OF A/C. NO.

0940053000001596 FOR THE PERIOD FROM 1.10.2020 TO 30.11.20 ISSUED FROM THE SOUTH INDIAN BANK OF PALLIPPURAM BRANCH.

ANNEXURE C CITIZEN COPY OF F.I.R NO. 752/2020 OF HEMAMBIKANAGAR POLICE STATION DATED 13.12.2020.

ANNEXURE D TRUE COPY OF THE COMPLAINT DATED 13.02.2021 SUBMITTED BEFORE POLICE CHIEF, PALAKKAD.