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TMI Blog2017 (9) TMI 1959X X X X Extracts X X X X X X X X Extracts X X X X ..... the said cheque bounced case has been transferred from the file of the learned Judicial Magistrate, Thiruthuraipoondi to the file of the learned District Munsif-cum-Judicial Magistrate, Vedaranyam and renumbered as C.C. No. 834 of 2008. 2. On 08.12.2012, the complaint was dismissed as withdrawn in Crl.M.P. No. 694 of 2012. Under such circumstances, the attachment of the property, pursuant to the proclamation was not made known to the petitioner for long time, till he applied for encumbrance certificate from the third respondent, the Sub-Registrar, Vedaranyam. Having come to know about the attachment in the case, which has already been ended in dismissal, the petitioner has filed Crl.M.P. No. 3973 of 2016, to lift the attachment and intima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment; but it shall not be sold until the expiration of six months from the date of the attachment or until any claim preferred or objection made under Section 84 Cr.P.C. Sub-clause (3) of Section 85 Cr.P.C., which is relevant for the present case is that if within two years from the date of attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had no such notice of the proclamation as to enable him to attend within the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the Court and makes his submission that he was not voluntarily absconded or concealed to avoid execution of the warrant, then, the Court shall order for lifting the attachment. 8. In M.C. Babu v. State of Kerala, one of the judgment relied by the trial Court, the learned Judge has discussed at length whether Section 5 of the Limitation Act is applicable to Section 85 (3) of the Code of Criminal Procedure. Since, the two years period mentioned in the said sub-section is a condition precedent, while holding in negative, the learned Judge has observed as under:- "16. I stated that the period mentioned in sub sec. (3) of Sec. 85 of the Code is not a period of limitation. It is one of the twin conditions precedent for the person pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sec. (3) of Sec. 85 of the Code cannot any more be exercised, it is open to the petitioner to request the Government to release the property, if it is not already sold and the residue in case any portion is sold or the sale proceeds to him. If the Government are satisfied that the plea of the petitioner is correct and that the justice of the case requires that the property (or the residue) or sale proceeds less costs incurred, as the case may be should be restored to the petitioner, it is open to the Government to do accordingly (see also Gurunath Narayanan Betgori In Re, supra) I leave petitioner to that remedy. If Petitioner makes a such request to the Government in that regard, the Government shall look into the mater and pass appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (3) of Section 85 of Code of Criminal Procedure, petitioner has not contended that he was not absconding and that he did not receive notice of proclamation, which are mandatory to get the property released even within the period of two years from the date of attachment. But, as the petition itself is not maintainable, it can only be dismissed, as has been done by the courts below. Revision fails and it is dismissed. Dismissal of the petition will not affect the rights of the petitioner, if any, to approach the civil court." 10. With great respect to the learned Judges who have rendered the above cited judgments, this Court wish to state while the attachment of the accused property is made pursuant to a judicial order suggesting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The two years period referred for lifting the attachment cannot be read literally to say the belated application are not maintainable, even if there is a justifiable cause for not appearing before the Court or for not seeking relief of raising the attachment after two years. If the petitioner makes out a justifiable cause for filing the present application after 12 years of attachment and able to convince the trial Court that he has not absconded himself wantonly, then, the Court has every right to consider the application and lift the attachment. Procedure is hand maid of justice. The endeavour of the Court should be to render justice by appropriate interpretation of statute. 12. In the facts and circumstances of the case, the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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