Madras High Court
K.Chitra vs The Superintendent Of Post ... on 6 October, 2021
WP.No.23498 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.10.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.23498 of 2018
and
W.M.P.No.27429 of 2018
K.Chitra ... Petitioner
Vs
1.The Superintendent of Post Offices,
Department of Posts,
Namakkal Division,
Namakka; - 637 001.
2.The District Registrar,
Namakkal - 637 003,
Namakkal District.
3.The Joint Sub Registrar II,
Sub Registrar Office,
Mohanur Road,
Namakkal - 637 001. ... Respondents
Prayer :- Writ Petition is filed under Article 226 of the Constitution of India
praying to issue a writ of certiorarified mandamus, calling for the records
relating to the impugned orders dated 07.02.2018, 08.03.2018 and
06.06.2018 made in F1/IV-2/15-16 passed by the 1st respondent quash the
same and consequently direct the respondents 2 and 3 to delete entry of the
1/16
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WP.No.23498 of 2018
encumbrance created over the petitioner's property measuring 4182 3/4
sq.ft., comprised in S.No.22/3A (New S.No.22/3A1B) Kondichettipatti
Village, Namakkal District.
For Petitioner : Mr.N.Manokaran
For Respondents : Mr.G.Ilangovan
Central Govt.Senior
Standing Counsel for R1
Mr.M.R.Gokul Krishnan,
Govt.Advocate for R2 & R3
ORDER
The writ petition has been filed to issue a writ of certiorarified
mandamus, calling for the records relating to the impugned orders dated
07.02.2018, 08.03.2018 and 06.06.2018 made in F1/IV-2/15-16 passed by
the first respondent, quash the same and consequently direct the respondents
2 and 3 to delete entry of the encumbrance created over the petitioner's
property measuring 4182 ¾ sq.ft., comprised in S.No.22/3A (New
S.No.22/3A1B) Kondichettipatti Village, Namakkal District.
2. The case of the petitioner is that the petitioner and her husband
served as Small Savings Agents in the Postal Department. On the complaint
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WP.No.23498 of 2018
lodged by one Mrs.Thilagavathi, dated 18.10.2021, the case was registered
in Crime No.43 of 2012 for the offences under Sections 417, 420, 468 and
471 of IPC, in which the petitioner's husband is arrayed as first accused and
the petitioner is arrayed as fourth accused. After completion of the
investigation, the Inspector of Police, District Crime Branch, Namakkal,
filed a final report and the same has been taken cognizance for the offences
under Sections 406, 408, 465, 471 and 420 read with 120 B of I.P.C.
However, the petitioner filed petition in C.M.P No.7495 of 2017 for
discharge from the prosecution under Section 239 Cr.P.C., and the same was
allowed. Though it was set aside by the first Appellate Court, again by an
order dated 10.02.2021 in Crl.O.P No.2210 of 2021, this Court restored the
order passed by the learned Judicial Magistrate No.I, Namakkal. However,
considering the same, the first respondent has issued impugned proceedings
dated 07.02.2018 directing the second respondent to take necessary action
to freeze the property stood in the name of accused persons to prevent any
sale, mortgage etc. In the said order, insofar as the petitioner is concerned,
no details of the property was mentioned. However by the impugned
proceedings, the third respondent has treated the petitioner's property
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WP.No.23498 of 2018
comprised in S.No.22/3A (New S.No.22/3A1B) measuring 4182 ¾ sq.ft.,
situated at Kondichettipatti Village, Namakkal, which was settled by her
husband by the Settlement Deed dated 01.02.2013 vide registered
Document No.427 of 2013 in favour of the petitioner. The said property has
no nexus with the offences alleged in C.C.No.111 of 2017. In fact, even
assuming that the property involved in the crime, the petitioner was
discharged from all the charges. Therefore, the petitioner had sent a detailed
representation to the second respondent to remove encumbrance entry made
by the third respondent in respect of the suit property. The second
respondent has requested the first respondent to pass a consequential order
for removal of the entries made in the encumbrance certificate. However,
the first respondent has passed the impugned proceedings dated 06.06.2018,
by reiterating the earlier orders. Again the petitioner has sent a
representation to remove the encumbrance and the said request was rejected
by an order dated 19.07.2018.
3. The learned counsel for the petitioner would submit that the
respondents have no power to proceed as against the property under Section
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WP.No.23498 of 2018
3 of the Criminal Law Amendment Ordinance, 1944. The Government alone
is the Competent Authority to initiate action by approaching the District
Judge of the jurisdiction where the accused ordinarily resides or carries on
business. Therefore, neither the Police Officer nor the respondents have no
role to play in this regard. The impugned order has been passed without
giving opportunity of hearing or serving a copy of an order and it is
violative of principles of natural justice. The right of the property cannot be
infringed except in compliance with the procedure contemplated under
Article 300 A of the Constitution of India. Therefore, the impugned orders
are arbitrary exercise of power, which is nothing but violative of Article 14
and 21 of the Constitution of India.
3.1. The learned counsel for the petitioner further submitted that
the statement of second accused reveals that he categorically admitted the
guilt insofar as the deposit made by one, R.Subramanian, to the tune of
Rs.11,00,000/-. He fabricated pass-book and disbursement of interest.
Further he admitted that one Srinivasan and Rajakokila also were issued
passbook without depositing amount with Post Office and admitted the
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WP.No.23498 of 2018
guilt. Therefore, the petitioner and her husband namely the first accused did
not commit any offence as alleged by the prosecution. Though the first
accused purchased the subject property on 16.11.2007, the alleged crime
occurred only in the year 2012 and as such the property was not purchased
from the crime proceeds. The said property was purchased by the first
accused with lawful ordinance and duly settled in favour of the petitioner
herein on 01.02.2013. In support of his contentions, he relied upon the
following judgments:
1. Nevada Properties Private Ltd., vs. State of Maharastra & Ors
reported in 2019 (20) SCC 199
2. Opto Circuit India Ltd., vs. Axis Bank & Ors
reported in 2021 (6) SCC 707
3. Sudhir Vasant Karnataki vs. State of Maharastra
reported in Manu/MH/1561/2010 FB
4. V.Sundaram & Another vs. The DSP, EOW, Kancheepuram & Anr.
in W.P.No.11221 of 2015
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4. Per contra, the learned counsel for the first respondent filed
counter and submitted that the first accused was being the postal agent had
committed fraud by misusing postal deposits and the fraud was committed
in the year 1997. They were functioning as MPKBY & SAS agents
appointed by the District Collector, Namakkal, for mobilizing deposits from
the public under the Small Savings Scheme and attached to Namakkal Head
Office and its Sub-Offices. The licenses granted to them were cancelled by
the District Collector, Namakkal, vide letter dated 17.10.2012 and
22.02.2013 following the complaint of frauds committed by them. One
Mrs.Thilagavathy, lodged a complaint on 18.10.2012 alleging that the
amount to the tune of Rs.4,05,000/- given to the agents were not deposited
in Post Office. She categorically made allegations as against A1 to A3
namely the petitioner's husband and two others. The husband of the
petitioner is the prime accused. After registration of the crime, charge-sheet
filed and also taken cognizance by the trial Court in C.C.No.111 of 2017 on
the file of the Judicial Magistrate No.1, Namakkal and it is pending for trial.
Though the petitioner was discharged from the charges only from the crime
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proceeds, the subject property was purchased by the first accused on
16.11.2007. After registration of FIR, to escape from the liability, the first
accused cleverly executed settlement deed in favour of the petitioner herein
on 01.02.2013. He further submitted that there are totally 13 victims and all
are senior citizens. They also approached the District Consumer Redressal
Forum, Namakkal and by an order dated 05.07.2019 in C.C.No.60 of 2013,
complaint was allowed and complainant is entitled to refund of
Rs.11,00,000/- with interest at 9% per annum from the opposite parties. The
accused persons and others are jointly liable to pay the said amount. Though
the petitioner was discharged from the criminal liability, the property which
was settled in her favour is the only property to realise the misappropriated
amount from her husband and the petitioner herein. Therefore, the action
has been taken under the Revenue Recovery Act. Accordingly, the second
respondent was addressed by the first respondent by letter dated 07.02.2018
and requested to take necessary action to freeze the properties stood in the
name of the accused persons. Therefore, the first accused to avoid the
attachment of the subject property, executed settlement deed in favour of the
petitioner herein. Therefore, he prayed for dismissal of the writ petition.
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5. Heard Mr.N.Manokaran, learned counsel appearing for the
petitioner and Mr.G.Ilangovan, learned Central Government Senior
Standing Counsel for the first respondent and Mr.M.R.Gokul Krishnan,
learned Government Advocate for respondents 2 & 3.
6. The petitioner and her husband are working as postal agents
appointed by the District Collector for mobilizing deposits from the public
under the Small Savings Scheme and attached to Namakkal Head Office and
its Sub-Offices. On the complaint received from Mrs.Thilagavathi, The
Inspector of Police, District Crime Branch, Namakkal, registered FIR under
Crime No. 43/2012 for the offences under Sections 417, 468, 471 and 420
IPC against the three accused persons, in which the first accused is none
other than the husband of the petitioner herein and after completion of the
investigation, final report was filed in Crime No.43 of 2012 and the same
has been taken cognizance in C.C. No.111 of 2017 on the file of Judicial
Magistrate-I, Namakkal. The petitioner was also arrayed as 4th accused.
Though the petitioner was discharged from the charges, the subject property
which was purchased by the first accused namely the husband of the
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petitioner herein by the registered sale deed dated 16.07.2007 was settled in
favour of the petitioner herein by the settlement deed dated 01.02.2013. As
per Rule 17 (9) (iii) of Post Office Savings Bank Manual Volume II, in the
event of any misappropriation of investors money by an agent appointed by
the Officer of a State Government, that State Government will bear the loss.
Therefore, the releasing of the property will hamper settlement of the claims
of the victims who had placed their faith on the State Government and lost
their hard earned money. Therefore, the first respondent is directed to freeze
the subject property so as to prevent any sale, mortgage etc., by the
petitioner.
7. The victims had filed consumer complaint before the District
Consumer Disputes Redressal Forum, Namakkal, as against the accused
persons, Postal Departments and also the State Government for settlement
of their claims. The petitioner and her husband namely the first accused are
shown as opposite parties and by an order dated 05.07.2019 in C.C.No.60 of
2013, held that the opposite parties are jointly and severally liable to pay the
amount which was deposited by each victim with interest @ 12% and also
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ordered a sum of Rs.50,000/- towards mental agony and Rs.10,000/-
towards cost. Thereafter, the licenses of the agents including the petitioner's
husband were cancelled and directed to seize the properties of the accused
and also issued necessary direction for recovery of loss through Revenue
Recovery Act.
8. On perusal of charge sheet in C.C.No.111 of 2017 revealed that
the victims have deposited their hard earned money in the year 2005 itself.
The accused persons had received the huge amount and without depositing
the said amount under the Post Office Savings Scheme, they
misappropriated the entire amount and fabricated deposit receipt and
account statements, thereby misappropriated huge sum from several victims.
The subject property was purchased by the first accused on 16.11.2007, by
the registered sale document No.3598 of 2007 and the rectification deed
dated 18.03.2009 vide document No.897 of 2009. In the year 2012, one of
the victim lodged a complaint and the same was registered in Crime No.43
of 2012 for the offences under Sections 417, 420, 468 & 471 IPC on the file
of the Inspector of Police, District Crime Branch, Namakkal.
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WP.No.23498 of 2018
9. While pending investigation, the first accused settled the
subject property in favour of the petitioner by the settlement deed dated
01.02.2013 registered under the Document No.427 of 2013 on the file of the
third respondent to escape from the clutches of recovery proceedings.
Therefore, according to the first respondent, the said property was
purchased from the crime proceeds and after registration of the FIR it was
settled in favour of the petitioner in order to avoid attachment proceedings.
10. The learned counsel for the petitioner heavily relied upon that
the Government alone is the competent to initiate action by approaching the
District Judge of the Jurisdiction where the accused ordinarily resides or
carries on business. Neither the Police Officer nor the respondents have no
role to play. The respondents have no right to proceed against the property
on a stretch even under Section 3 of the Criminal Law Amendment
Ordinance, 1944.
11. In support of his contentions, he relied upon the judgment of
Hon'ble Supreme Court of India in the case of Nevada Properties Pvt., Ltd.,
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vs. State of Maharastra & Ors reported in 2019 (20) SCC 119. The Hon'ble
Supreme Court held that when any Court has reasonable grounds to believe
that any property has been obtained by any person directly or indirectly
from the commission of an offence, the Court can make an order for
attachment or forfeiture of such property. The power of attachment and
forfeiture is given to Courts and not to Police Officer.
12. He also relied upon the Order of this Court in W.P.No.11221
of 2015, in the case of V.Sundaram & Anr., vs The DSP, EOW,
Kancheepuram & Anr, wherein, this Court held that the provisions of the
Criminal Law Amendment Ordinance, 1944 can be invoked in the State of
Tamil Nadu for attaching the properties of the offender. The Ordinance
provides for procedure to effect attachment. Under Section 3 of the
Ordinance, it is only the State Government or the Central Government that
can initiate action by approaching the District Judge of the area where the
accused ordinarily resides or carries on business. The Police Officer has no
role to play in this. He can, at the most, submit a report to the State
Government or Central Government requesting to initiate action under the
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Ordinance and he cannot arrogate to himself to the power to issue such
veiled threats to the Sub Registrar.
13. In the case on hand, no Police Officers have directed the
second and third respondents to keep the subject property in freezed
condition. The first respondent is being the Superintendent of Post Office,
directed the second and third respondents to take necessary action to keep
the subject property in freezed condition so as to prevent any sale, mortgage
etc. Therefore, the above judgments are not helpful to the case on hand. On
the letters received by the State Government Authorities in connection with
the seizing of the properties, action has been taken under the Revenue
Recovery Act. Therefore, on behalf of the State Government, the first
respondent issued the letter to the respondents 2, 3 and 4 to take necessary
action to keep property in freezed condition so as to prevent any sale,
mortgage etc. That apart, there is evidence to show that the first accused had
purchased the subject property from the crime proceeds and after
registration of the F.I.R., the first accused settled the property in favour of
the petitioner herein. Therefore, the transaction appears to be a calculated
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design to defeat the recovery with motive of putting the property out of
reach of the authorities. Though the petitioner was discharged from the
charges, A1 to A3 have committed very serious offences against general
public and as per Rule 17 (9) (iii) of Post Office Savings Bank Manual
Volume II, in the event of any misappropriation of investors money by the
agent appointed by an Officer of a State, that State Government will bear
the loss. Therefore, the first respondent rightly directed the second and third
respondents to keep the subject property in freezed condition.
14. In view of the above, this Court finds no infirmity or illegality
in the orders passed by the first respondent and this writ petition is liable to
be dismissed. Accordingly, the writ petition stands dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
06.10.2021
Pns
Index:Yes/No
Internet:Yes/No
Speaking/Non speaking
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WP.No.23498 of 2018
G.K.ILANTHIRAIYAN,J.
Pns
To
1.The District Collector,
Krishnagiri District.
2.The Sub Collector,
Hosur, Krishnagiri.
3.The Tahsildar,
Hosur, Krishnagiri District.
4.The Village Administrative Officer,
Bathalappali, Hosur Taluk,
Krishnagiri District.
W.P.No.23498 of 2018
06.10.2021
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