SIVAKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The 2 nd petitioner herein was arrayed as accused No.2 for offence punishable under Sec.138 of the Negotiable Instruments Act in S.T.No. 383/2015 on the file of the Judicial First Class Magistrate's Court-II, Irinjalakuda. The two accused therein were alleged to be partners of a partnership firm, from whose account the dishonoured cheque in question was issued to the complainant therein. According to the accused, they had not received summons. That as the accused persons did not appear before the trial court, non-bailable warrants were issued against them and later the case was included in the long pending case list as L.P.R.No.129/2007 and proceedings under Secs.82 and 83 of the Cr.P.C. were also initiated against the said accused persons. It is not in dispute that, in pursuance of the said proceedings under Secs.82 and 83 of the Cr.P.C., the trial court had ordered attachment of the property said to have been belonging to the 2nd petitioner as per order dated 30.9.2006. Later, the accused persons had settled the disputes with the complainant in relation to the dishonoured cheque in question involved in the complaint and the agreed amount was paid to the complainant and the complainant had filed an application under Sec.257 of the Cr.P.C. to withdraw the complaint. By that time, the case was ref-filed as S.T.No. 8/2014 on the file of the abovesaid Judicial First Class Magistrate's Court. The trial court as per Ext.P-2 order dated 20.10.2014 had allowed the application filed by the complainant as Crl.M.P.No. 128/2014 for withdrawing the complaint and accordingly, the accused persons therein were acquitted under Sec. 257 of the Cr.P.C.

(2.) According to the 2 nd accused, even long prior to the attachment order dated 30.9.2006, he had sold his property as per Ext.P-1 sale deed dated 26.3.2005 in favour of the 1 st petitioner after receiving full consideration thereof, and the said sale deed has been duly registered by SRO, Mathilakam, on 26.3.2005. The 2 nd petitioner would aver that he was not aware about the impugned order of attachment dated 30.9.2006 and moreover, he did not have any contact with the Revenue officials concerned, as he had already sold his property as per Ext.P-1 as early as on 26.3.2005. According to the 1 st petitioner, after the registration on Ext.P-1 sale dated 26.3.2005, his land tax has been accepted by the competent Revenue/Village Officer concerned and that recently, when he wanted to sell his property, he contacted the Village Officer concerned and thereupon, he came to know that the property covered by Ext.P-1 has been attached by the criminal trial court on 30.9.2006 in pursuance of the abovesaid complaint proceedings. Accordingly, the 2 nd petitioner had filed an application as Crl.M.P.No.21/2016 in the abovesaid S.T.No. 8/2014 praying that the attachment order may be lifted, etc. The trial court as per Ext.P-3 impugned order dated 16.8.2016 has rejected the said plea made by the 2 nd petitioner by holding that Sec.85 provides a specific remedy to the 2 nd petitioner and that in terms of the provisions of the statute the 2 nd petitioner should have appeared before the trial court within 2 years from the date of attachment and should have proved that he had not absconded or concealed himself for the purpose of avoiding execution of the warrant and that he had no notice of proclamation to enable him to attend the court within the time specified therein. Accordingly, the trial court has dismissed the application made by the 2 nd petitioner for lifting of the attachment. The trial court also placed reliance on the judgment of this Court in Babu v. State of Kerala, 2011 3 KerLT 383.

(3.) This case was admitted on 22.8.2017, on which day, this Court had directed that status quo as regards the the property, which is referred to in the impugned Ext.P-3 proceedings, shall be maintained by the competent authorities concerned. Further this Court had also directed the learned Prosecutor to get a report from the SRO concerned in respect of Ext.P-1 sale deed said to have been executed on 26.3.2005 and also state whether the said property was conveyed by the 2 nd petitioner to the 1 st petitioner on 26.3.2005. The learned Prosecutor was also requested to ascertain from the competent Revenue authorities concerned whether the property, which was the subject matter of the attachment referred to in Ext.P-3, is the one covered by Ext.P-1 sale deed dated 26.3.2005. The Registry was also directed to get a report from the trial court concerned as to the details of the property which was the subject matter of attachment and the trial court was directed to make available the lower court records.