( 1 ) BOTH the revision petitions are directed against the common order of the learned III Additional Sessions Judge, Belgaum, dated 28-2-2002 in cri. A. Nos. 120 of 1996 and 122 of 2001 relating. to the delivery of the property.

( 2 ) THE brief facts of the case are that; Thammanna Shivalingappa teli, petitioner herein, lodged a complaint with the police stating that on 2-11-1985 gold articles were stolen from his house. The police took up investigation. One Appasaheb Chavan was arrested on 22-4-1986. Consequent upon the voluntary statement made by Appasaheb Chavan, several articles including gold ornaments were recovered from the possession of Ganeshmal Bhagwanji Rathod, 2nd respondent herein. When the properties were produced before the Court, the petitioner filed an application on 17-4-1989 for interim custody of the property, however, that application was not decided. On completion of investigation, the police filed charge-sheet against Appasaheb Chavan. The case was tried by the learned Judicial Magistrate First Class, athani, in C. C. No. 795 of 1986 for offences under Sections 457 and 380 of the IPC and the accused was convicted.

( 3 ) THE gold ornaments were recovered by the police from the possession of the 2nd respondent. On conclusion of the trial, the petitioner filed another application for release of the gold articles to his interim custody. The second respondent also made an application for custody of the articles. The 2nd respondent who was examined as P. W. 3 in the case, in his evidence before Court denied any recovery of the material objects from his possession. The learned Magistrate held that the petitioner and the second respondent should establish their title to the properties in the Civil Court and then the properties should remain in the custody of the Court. The petitioner aggrieved by the said order of the Trial Court filed on appeal in Cri. A. No. 120 of 1996 under Section 454 of the Cr. P. C. and the 2nd respondent also filed an appeal in Cri. A. No. 122 of 2001 before the III Additional Sessions Judge, Belgaum. The learned Sessions Judge by his common order dated 28-2-2002. rejected the appeal filed by the petitioner and allowed the appeal filed by the 2nd respondent. Dissatisfied with the order of the learned Sessions Judge dated 28-2-2002 dismissing Cri. A. No. 120 of 1996 the petitioner has preferred this revision. The petitioner has also filed Cri. R. P. No. 286 of 2002 challenging the order dated 28-2-2002 passed in Cri. A. No. 122 of 2002 allowing the appeal of the 2nd respondent.

( 4 ) I have heard the learned Counsels appearing for the parties and the learned High Court Government Pleader for the State.

( 5 ) LEARNED Sessions Judge in passing the order impugned held that the police have seized about 400 grams of gold, whereas the complainant had lost more than 900 grams of gold ornaments and the seized gold in this case is not the property in respect of which an offence has been committed and that the identity of the property is lost. He also held that though second respondent who was examined as P,w. 3 was declared hostile in a criminal case, it does not affect his right to claim the property and admittedly, the property was seized under a mahazar from the possession of P. W. 3, who is a licence holder to deal in gold and silver articles and he need not produce any documentary evidence to show his title. He also held that there was no charge against the second respondent that he had received the stolen articles from the accused knowing fully well that the said articles were stolen property and the 2nd respondent is not made as accused in the criminal case and therefore, ordered return of the property to the respondent. In coming to the conclusion, learned Sessions Judge has relied upon a decision in case of State Bank of India v Rajendra Kumar Singh and Others, wherein, it has been held thus. " (B) Criminal Procedure Code, 1898, Sections 517 and 520 bank receiving currency