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2010 Supreme(Bom) 1200
In the High Court of Bombay at Nagpur
MR. JUSTICE A.P. BHANGALE
Natthusingh son of Sitaramji Bundel
Versus
State of Maharashtra & Another
Criminal Appeal No. 285 of 2009
Decided on: 24-08-2010
For the Appellant:Tiwari, Advocate. For the Respondents:R1, A.R. Taywade, APP, R2, S.S. Sitani, Advocate.
The order for delivery of property under Section 452 of the Code of Criminal Procedure does not conclude the right or title of any person to the ownership of the property.
Headnote:
Retained Property - Criminal Law - Section 392 of the Indian Penal Code - Section 452 of the Code of Criminal Procedure - Summary: The court discussed the retention of seized cash and the right to possession under Section 452 of the Code of Criminal Procedure. It emphasized that the order for delivery of property does not conclude the right or title of any person to the ownership of the property and that the ownership of the property is the domain of the Civil Court. The court also highlighted that when an accused is acquitted of theft, it cannot be said that he was necessarily in lawful possession of the property which was the subject-matter of theft and he is not, therefore, entitled to recover the property.
Fact of the Case:
The appellant contested the retention of seized cash by the complainant, arguing that the amount should have been released in his favor, as the trial resulted in the acquittal of all accused, including the appellant's son.
Finding of the Court:
The court dismissed the appeal, emphasizing that the prosecution had succeeded in proving the looting of the cash, but failed to connect the accused with the charges. It also highlighted that the order for delivery of property does not conclude the right or title of any person to the ownership of the property.
Issues: The issues revolved around the retention of seized cash, the right to possession, and the entitlement to recover the property after acquittal.
Ratio Decidendi: The court emphasized that when an accused is acquitted of theft, it cannot be said that he was necessarily in lawful possession of the property which was the subject-matter of theft and he is not, therefore, entitled to recover the property.
Final Decision: The appeal was dismissed, with liberty granted to the appellant to approach the appropriate Civil Court for recovery of money, if so advised.
Oral Judgment:
1. Appellant is aggrieved by part of the order dated 5.3.2009 made by the Adhoc Additional Sessions Judge-6, Nagpur in Sessions Trial No. 318 of 2008 whereby muddemal viz. cash worth Rs. 24,865,000/- including the amount of Rs. 100,000/-seized from the bank of appellant has been allowed to be retained by PW 1 Manoj Ratan Agrawal, complainant (respondent no.2 herein) which amount was initially released in favour of said Manoj by the Judicial Magistrate, First Class, Nagpur vide order dated 24.3.2008 on his supratnama.
2. Even though the appellant was neither a complainant nor any of the accused persons, it would be useful to narrate the prosecution story in brief for the purpose of deciding the present appeal.
3. Respondent no. 2 Manoj lodged a report with Police Station, Butibori, Nagpur alleging that while he was coming from Chandrapur by car carrying with him cash of Rs. 35 lacs, three persons came in one car and looted that amount from him on the point of knife. On the basis of his report, Butibori Police registered offence under Section 392 of the Indian Penal Code against four unknown persons and started investigating into the matter. Police arrested Manojsingh, son of appellant, alleging that he had hatched conspiracy along with the driver on the car of complainant and in that, other accused persons looted cash amount from the complainant. Manojsingh made disclosure statement that he received Rs. 1,50,000/- from the ransacked amount out of which Rs. 100,000/- were kept in the bank account of appellant. Police seized amount of Rs. 100,000/- from the bank account of appellant. Total amount seized was Rs. 24,86,500/-which, as aforesaid, was released in favour of complainant Manoj Agrawal by the learned Magistrate on his supratnama vide order dated 24.3.2008.
4. It is claimed by the appellant that on his retirement, he received Rs. 99,900/- towards leave encashment on 26.2.2008 and by adding Rs. 100/- to it, he made a deposit of Rs. 100,000/- in his SB Account No. 11205044740 with the State Bank of India, Chhaoni Branch, Nagpur on 27.2.2008 and that amount did not form the part of alleged booty out of the incident dated 24.2.2008.
5. Heard learned counsel for the parties and perused the judgment and order part of which is impugned before this Court as also relevant papers.
6. Learned counsel for the appellant strenuously contends that no notice of hearing was given by the learned Magistrate to the appellant before releasing the amount on the supratnama of complainant Manoj Agrawal. He further made a grievance that learned trial Judge also did not hear appellant even though an order was made on the application of the appellant that his application (exhibit 26) would be considered at the time of conclusion of trial. He points out that appellant’s son Manojsingh had examined in defence Mukunda, cashier in the Police Department who had deposed that the amount of Rs. 99,900/- was released to the appellant on 26.2.2008 towards leave encashment. However, the trial Court did not consider that evidence and has mechanically allowed the complainant to retain the entire amount including the amount of Rs. 100,000/-. Learned counsel has canvassed that the amount of Rs. 100,000/-ought to have been released in favour of the appellant in view of the aforesaid facts coupled with the fact that the trial has culminated in acquittal of all the accused including the son of appellant (Manojsingh).
7. Learned Additional Public Prosecutor for respondent no. 1 and learned counsel appearing for respondent no.2, on the other hand, have supported impugned part of the order. Learned APP has taken me through the seizure memo and confessional statements of accused Manojsingh and appellant which are not disputed by learned counsel for the appellant.
8. Amount of Rs. 100,000/- was seized by the police under seizure memo (exhibit 70) from the appellant from his bank account. Appellant in his statement dated 8.3.2008 confessed tha
