IMPORTANT POINT
Case property cannot be released when there is possibility of rival claims.

JUDGMENT

SANJAY KAROL J,

Leave granted

2. The appellant-accused has challenged a judgment passed by the learned Single Judge of the High Court of Gujarat at Ahmedabad in R/Special Criminal Application (Quashing) No. 1955 of 2024, dated 4th December 2024 whereby release of case property (cash) [Hereinafter ‘muddamal’] in connection with First Information Report being CR No. 11206078220159 of 2022 was allowed by the Court. The said application before the High Court was preferred against orders dated 1st August 2023 and 30th December 2023 passed by the Additional Chief Judicial Magistrate of Unjha, in Criminal Case No. 366 of 2022 and by the Additional Sessions Judge, Mahesana Visnagar, respectively.

3. The facts, leading up to the impugned judgment, as can be understood from the judgments of the Courts below are that one Chiragkumar Dilipbhai Natwarlal Modi, lodged a complaint before the PS Unava, District Mahesana on 9th April 2022 alleging that the appellant-accused ran a proprietary firm by the name of Jay Gopal Trading Company and had conducted business with the complainant worth Rs. 44,53,714/- in castor seeds on different dates and various cheques given in respect of this amount were returned due to insufficient balance. It was also alleged that the said Company had done business with other concerns totalling Rs.3,49,07,073/- (including the payment of the complainant) and had similarly not paid the amounts due. The police completed its investigation and presented chargesheet on 5 June 2022 under Sections 406, 420 and 120-B Indian Penal Code, 1860. Therein, in support of its case the State listed a total of 41 witnesses and respondent no. 2 herein / the petitioner before the High Court was listed at serial no. 4 in the said list.

4. Respondent No. 2 filed an application before the Additional Chief Judicial Magistrate, Unjha in Criminal Case No. 366 of 2022 seeking release of ‘muddamal’ i.e., cash amount of Rs. 50,00,000 was seized during the investigation, on the ground that the said amount pertained to him for the goods he had sold through his concern namely Bhadrakali Tobacco to the Company of the appellant-accused and in that regard he has produced a copy of the bill, the audit report and ledger account. The learned Trial Judge, however, refused such prayer observing as follows:

“… on perusing the charge-sheet, it appears at the present stage that in allegation against the accused of this case is that of committing cheating and breach of trust with the complainant and the witnesses stated in the charge-sheet and in that when objection of all the witnesses are not obtained on behalf of the applicant, then in that case, when the case proceedings are pending and it has become a matter of evidence as to whom the muddamal be handed over at this stage and hence, it does not appear to be proper and just to take any decision regarding muddamal…”

5. In an appeal filed under Section 397 of the Code of Criminal Procedure, the Additional Sessions Judge, Mahesana at Visnagar confirmed that the order of the court below observing:

“… In this case, it has revealed during the investigation that the accused has committed cheating and breach of trust with so many merchants over and above the complainant. The investigating Officer has seized the above amount during the investigation as proceeds of crime money.

Moreover, no any supporting evidence is produced on behalf of the applicant/accused by which it can be believed prima facie that the amount seized by the Investigating Agency is the amount prior to occurrence of the offence. Moreover, the list of victims is very lengthy as stated by the complainant in the complaint. It is the subject matter of evidence as to who lost how much amount from amongst the victims. In this way, this amount of relating to the proceeds of crime and hence, question of returning the said amount to the accused at this stage does not arise… Hence, it cannot be said to be just to return this amount to anyone from amongst th