[Cites 7, Cited by 0]
Kerala High Court
C.Vijayalakshmi vs Bank Of India on 7 January, 2026
2026:KER:574
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
WEDNESDAY, THE 7TH DAY OF JANUARY 2026 / 17TH POUSHA, 1947
CRL.MC NO.5527 OF 2020
AGAINST THE ORDER OF ADDITIONAL SESSIONS COURT II,
KOZHIKODE DATED 21.10.2020 IN CRP NO.60 OF 2009 OF JUDICIAL
MAGISTRATE OF FIRST CLASS - V, KOZHIKODE, IN CMP 1351/2019
IN C.C.NO.638/2009
PETITIONER/REVISION PETITIONER/ ACCUSED:
C.VIJAYALAKSHMI
AGED 66 YEARS, WIFE OF RAVEENDRAN, KADATHIL HOUSE,
NALLUR P.O., KOZHIKODE DISTRICT.
BY ADVS.
SRI.M.PROMODH KUMAR
SMT.MAYA CHANDRAN
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 BANK OF INDIA
REPRESENTED BY BRANCH MANAGER, BAPOOR,
KOZHIKODE DISTRICT.
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
BY ADV.
SRI.RENJIT GEORGE - SR.PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
07.01.2026, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2026:KER:574
Crl.M.C.No.5527 of 2020
-2-
G. GIRISH, J.
--------------------------------
Crl.M.C.No.5527 of 2020
------------------------------------
Dated this the 7th day of January, 2026
ORDER
Aggrieved by the refusal of the Judicial First Class Magistrate
Court - V, Kozhikode, and the Sessions Court, Kozhikode, to lift the
attachment ordered over the property of the petitioner under Section
83 of the Code of Criminal Procedure, the petitioner has approached
this Court with this petition under Section 482 Cr.P.C.
2. The petitioner was the accused in C.C.No.638 of 2009, a
case relating to the commission of the offence under Section 138 of
the Negotiable Instruments Act. The learned Magistrate initiated
proceedings under Sections 82 and 83 Cr.P.C. against the petitioner,
since she did not appear at the initial stages of the proceedings in
the said case. Accordingly, the 4.75 cents of land belonging to the
petitioner, comprised in Survey No.77 and Re-Survey No.431/2 of
Feroke Village, was attached as per the directions of the learned
Magistrate under Section 83 Cr.P.C. However, the petitioner later on
surrendered before the learned Magistrate and abided by the due
2026:KER:574
process of law. She also paid the entire amount due to the
complainant and settled the issue involved in that case. Accordingly,
the learned Magistrate permitted the withdrawal of the complaint
and acquitted the petitioner as per Annexure 1 - order on
14.09.2009. However, the petitioner omitted to alert the learned
Magistrate about the need to lift the attachment ordered over her
property at the initial stages of the proceedings in that case. It was
only in the year 2015 that she realised that her property still
remained under attachment, and that the aforesaid encumbrance
was reflected in the documents maintained by the authorities
concerned. Accordingly, the petitioner filed CMP No.1351 of 2019
before the learned Magistrate with a prayer to lift the attachment.
The aforesaid petition was dismissed by the learned Magistrate for
the reason that the petitioner did not approach the court within the
period of two years from the date of attachment for lifting the
attachment, and hence no order could be passed in that regard.
Though, the petitioner challenged the aforesaid order in revision
before the Court of Sessions, Kozhikode, the learned Sessions Judge
also declined the prayer of the petitioner stating the reason that
2026:KER:574
after the expiry of two years from the date of attachment, only the
Government could pass appropriate orders lifting the attachment.
Aggrieved by the aforesaid verdicts of the courts below, the
petitioner has approached this Court with this petition.
3. Heard the learned counsel for the petitioner, the learned
counsel for the 1st respondent - Bank and the learned Public
Prosecutor representing the State of Kerala.
4. The learned counsel for the 1st respondent - Bank
submitted that the Bank has absolutely no objection in lifting the
attachment ordered over the property of the petitioner since the
petitioner had cleared the entire liability with the Bank as early as
2009. The learned Public Prosecutor obtained a letter from the
District Collector about the present stage of the property attached in
this case. As per the letter dated 03.01.2026 of the District Collector,
Kozhikode, addressed to the learned Advocate General, it is stated
that the property still remains under the possession of the petitioner,
and that even the land tax for the 2025-2026 financial year has been
remitted by the petitioner under her Thandaper. Thus, it is made
clear by the District Collector in the aforesaid letter that the property
2026:KER:574
had not been sold or otherwise disposed of by the Government
consequent to the attachment effected in this case.
5. It is true that Sub Section 3 of Section 85 of the Code of
Criminal Procedure (Section 88(3) BNSS) stipulates a period of two
years for the person whose property has been attached to seek
orders towards restoring the property after convincing the court that
he did not abscond or conceal himself to evade the process of the
court. As far as the present case is concerned, the property of the
petitioner was attached on 12.12.2008. However, Annexure 1 - order
of the learned Magistrate would reveal that the issue was settled
with the complainant and the case was withdrawn, after the
appearance of the petitioner, as per the order dated 14.09.2009 of
the said court. Thus, it is clear that the petitioner had appeared
before the learned Magistrate even within a period of one year from
the date of attachment and got the matter settled by making
payment of the amount due to the complainant / 1st respondent -
Bank. The aforesaid conduct of the petitioner would make it clear
that she had not deliberately evaded the process of the court by
absconding or concealing herself. It is true that the petitioner
2026:KER:574
omitted to alert the court about the need to lift the attachment even
after the expiry of eight years from the withdrawal of the said case.
But, it would amount to travesty of justice, if the request of the
petitioner to lift the attachment is not allowed stating the reason
that she did not move an application for lifting the attachment within
the aforesaid period after the withdrawal of the case. It is pertinent
to note that the letter of the District Collector, Kozhikode, would
reveal that the property still remained under the possession and
enjoyment of the petitioner, and that she has been remitting land tax
for the said property even now. In the above circumstances, the
refusal of the courts below on technical grounds to lift the
attachment of the property of the petitioner, was not proper.
Needless to say, the prayer of the petitioner to set aside the orders
of the courts below and to release the attachment over her property,
deserves to be allowed.
In the result, the petition stands allowed as follows:
(i) Annexure 3 - order of the Judicial First Class
Magistrate Court - V, Kozhikode, and Annexure 4 -
judgment of the Court of Sessions, Kozhikode, disallowing
2026:KER:574
the request of the petitioner to lift the attachment over
her property, stand set aside.
(ii) The attachment ordered by the Judicial First
Class Magistrate Court - V, Kozhikode, and given effect
through the District Collector, Kozhikode, over the 4.75
cents of land of the petitioner comprised in Survey No.77
and Re-Survey No.431/2 of the Feroke Village, Kozhikode,
is hereby lifted.
(iii) The Judicial First Class Magistrate Court - V,
Kozhikode, is directed to issue the necessary
communications to the authorities concerned about the
lifting of the attachment ordered in this case.
Sd/-
G. GIRISH
JUDGE
ded/07.01.2026
2026:KER:574
APPENDIX OF CRL.MC NO. 5527 OF 2020
PETITIONER ANNEXURES
ANNEXURE 1 THE TRUE COPY OF THE ORDER OF JUDICIAL FIRST
CLASS MAGISTRATE COURT V, KOZHIKODE IN CC
638/2009 DATED 14.09.2009.
ANNEXURE 2 THE TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
OF THE PETITIONER'S PROPERTY DATED
29.08.2015.
ANNEXURE 3 THE TRUE COPY OF THE ORDER OF JUDICIAL FIRST
CLASS MAGISTRATE COURT V, KOZHIKODE IN CMP
1351/2019 CC 638/2009 DATED 20.07.2019.
ANNEXURE 4 THE CERTIFIED COPY OF THE ORDER OF
ADDITIONAL SECTIONS COURT II, KOZHIKODE,
DATED 21.10.2020 IN CRIMINAL REVISION
PETITION 60/2019.
