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2020 Supreme(Ker) 659
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. Somarajan, J.
Mrs. Suja, W/o. Danaseelan – Petitioner
Versus
Sub Inspector of Police, North Parur Police Station and Anr. – Respondents
WP(C).No.11009 of 2020(A)
Decided On : 16-09-2020
Advocate Appeared:
For the Petitioner: Sri.G.Hariharan, Sri.Praveen.H., Smt.K.S.Smitha, Sri.G.Siji, Sri.V.R.Sanjeev Kumar, Adv.
For the Respondent: Sri.E.C.Bineesh, Government Pleader
IMPORTANT POINTS
The pendency of civil suit for return of the advance amount based on contract for sale would prima facie show admission of contractual obligation arising out of the said contract and it will not constitute an offence of cheating. The existence of some other criminal cases against the husband of the petitioner may not be a sufficient ground to exhaust Section 102 Cr.P.C. in the instant case.
Headnote:
Criminal Procedure Code-Section 102;; Indian Penal Code- Section 406, 420, 468, 471 r/w Section 34-Non-performance of part of contract by the accused in a contract for sale of immovable property-Crime was registered - Mere receipt of amount by way of advance in furtherance of a contract for sale-Failure to execute the sale -Would not itself bring the matter within the sweep of offence punishable under Section 420 IPC-Prohibiting operation of an account or seizure of any property must satisfy the compliance of requirement
Statement of facts:
Ext.P7 order issued by the investigating officer prohibiting the operation of the bank account maintained by the petitioner, her husband and son is under challenge. The crime was registered on the allegation of offences punishable under Sections 406, 420, 468 and 471 r/w Section 34 IPC in connection with the execution of a sale agreement between the parties.
Finding of the court:
The forgery of the signature as that of the defacto complainant, his son and wife in a subsequent agreement Ext.P3 is a subsequent event, by which no money transaction was effected. The bank account maintained by the petitioner, her husband and son has no direct nexus with Ext.P3 and the allegation of forgery. Hence Ext.P7 order is hereby set aside
Result: Writ petition is allowed
JUDGMENT :
Ext.P7 order issued by the investigating officer prohibiting the operation of the bank account maintained by the petitioner (the 2nd accused), her husband and son is under challenge. The crime was registered on the allegation of offences punishable under Sections 406, 420, 468 and 471 r/w Section 34 IPC in connection with the execution of a sale agreement between the parties.
2. Two statements were filed by the Public Prosecutor stating that the accused had collected an amount of Rs.45 lakhs on different occasions and lastly Rs.20 lakhs from the defacto complainant out of the sale consideration agreed, but did not register the property in the name of the defacto complainant. A civil suit-O.S.No.107/2019 was filed by the defacto complainant against accused Nos. 2 and 3 before the Sub Court, North Parur for return of the amount. It was also alleged that the signatures of the defacto complainant, his wife and son were forged in a subsequent agreement (Ext.P3). It is also reported that the husband of the petitioner, accused No.1, is involved in 26 cases in different police stations.
3. Section 102 Cr.P.C. is extracted below for reference:
“Section 102-Power of Police Officer to seize certain property
1. Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the Commission of any offence.
2. Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.
3. Every police officer acting under Sub-Section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be, conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same. Provided that where the property seized under Sub-Section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of sections 457and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.”
4. For the purpose of Section 102 Cr.P.C., the bank account or the postal account of the accused or any of his relatives would be a “property” within the meaning of Section 102 Cr.P.C. and it is permissible to seize any amount or the account or to prohibit its operation by the police officer in the course of investigation.
5. In State of Maharashtra v. Tapas D Neogi [(1999) 7 SCC 685], the Apex Court had the occasion to consider whether the bank account of the accused would constitute “property” within the meaning of Section 102 Cr.P.C., whether a prohibition not to operate the account would constitute “seizure” for the purpose of that section and the circumstances under which the power can be exercised. The legal position was settled that the account maintained in a bank would constitute “property” within the meaning of Section 102 Cr.P.C. and that the police officer who investigates the commission of offence can either seize the property or prohibit its operation by virtue of the power under that section.
6. Then comes the question under what circumstance the power under Section 102 Cr.P.C. can be exercised and whether it can be extended to all kinds of properties belonged to the accused or his relatives. To exhaust the power under Section 102 Cr.P.C., it must be a property alleged or suspec
