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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sandeep K. Shinde, J.
M/s. J.b.d. Finance And Investment Ltd & Ors. - Appellants
Versus
State Of Maharashtra & Ors. - Respondents
Writ Petition No. 6104, 6105, 6106, 6107 of 2019
Decided On : 16-11-2021
Article 227 - Release, sale and restoration of attached property - Code of Criminal Procedure, 1973, Section 83, Section 84, Section 85
Fact of the Case:
The petitioner company's property was attached under Section 83 of the Code of Criminal Procedure, 1973, due to complaints under Section 138 of the Negotiable Instruments Act. After settling the dispute with the complainant, the petitioner sought release and restoration of the property, which was rejected by the Metropolitan Magistrate. The petitioner appealed under Article 227 of the Constitution of India read with Section 482 of Cr.P.C.
Finding of the Court:
The court found that the petitioner's right to seek release of the property under Section 85 of Cr.P.C. beyond two years from the date of its attachment was not extinguished. The court held that the application under Section 85(3) should be considered on its merits, even if filed after two years, if a sufficient cause is shown for the delay.
Issues: The main issue was whether the petitioner's right to seek release of the property under Section 85 of Cr.P.C. beyond two years from the date of its attachment stands extinguished.
Ratio Decidendi: The court held that the two years period referred for lifting the attachment cannot be read literally to say the belated application is not maintainable, if there is a justifiable cause for not seeking release of raising the attachment after two years. The court emphasized that the application should be considered on its merits, if a sufficient cause is shown for the delay.
Final Decision: The impugned order dated 21st November, 2019 was quashed and set aside, and the learned Metropolitan Magistrate was directed to decide the petitioner's application on merits, in accordance with the judgment.
JUDGMENT
Sandeep K. Shinde, J. - Rule.
2. Rule made returnable forthwith. Heard, finally with the consent of the parties.
3. These petitions under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, are directed against the order dated 21st November, 2019 (a common order) by which the Petitioners application, for release and the restoration of property attached under Section 83 of the Code of Criminal Procedure, 1973, has been rejected by the Metropolitan Magistrate 28th Court at Esplanade Mumbai.
4. Background facts are ;
The Respondent No.2 M/s Sampark Marketing Advertising Solution Pvt. Ltd. filed complaints under Section 138 of the Negotiable Instruments Act against the Petitioner Company, being Case Nos. CC/447/SS/2005; CC/448/SS/2005; CC/449/SS/2005; CC/450/SS/2005; CC/451/SS/2005; CC/27/SS/2013. In these complaints proclamation was issued against Dinesh Singh Lakra, director of the Petitioner Company, followed by order attachment under Section 83 of Cr.P.C. of the property, being Flat No.302, at Golden Empire Co.Op. Housing Society Ltd., Mira Road, Dist. Thane (Property for short). Pursuant thereto, on 28th January, 2008, a District Collector, Thane was authorized to attach the property in the manner specified in Clause (a) or Clause (b) or both of Subsection (4) of Section 83 of the Cr.P.C. The order was acted upon by taking possession of the property. Be that as it may, pending attachment, the Respondent No.2 (Complainant) instituted a summary suit in the City Civil Court, Mumbai against the Petitioners, seeking money decree in the sum of Rs. 45,74,716/-. Pending suit and the attachment (under Section 83 of Cr.P.C.), accused Dinesh Singh Lakra executed a registered agreement in respect of the said property in favour of his wife Mrs. Sonia Rajpal Singh. Whereafter Mrs. Sonia Sing moved an application, seeking release and restoration of the said property. Her application was rejected and the revision against that order also met with the same fate. Both the Courts concurrently held that Mrs. Sonia Singh had no locus to seek release and restoration of the said property. It may be stated that in the summary suit instituted by the Respondent No.2 in Notice of Motion No. 3537/2012, said property was attached in before judgment.
5. Pending Civil and Criminal Proceedings, Complainant and the Petitioners compromised the dispute. Whereafter, the Complainant sought permission to withdraw the complaints on the ground that the accused have settled all matters including the proceedings in the summary suit instituted by him. The learned Metropolitan Magistrate upon verifying the applications permitted the Complainant to withdraw the complaints and disposed of the same. In consequence, vide order dated 19th October, 2019, Petitioners-accused were acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act in all aforesaid complaints. Well before withdrawing the complaints, the Complainant and the Petitioners had also filed the consent terms in the summary suit on 10th October, 2019. Whereafter, the attachment was lifted by the City Civil Court and directed the Registrar, to hand over possession of the said property to Dinesh Lakra, director of the Petitioners-Company.
6. In the backdrop of aforestated facts, the Petitioners herein, moved an application under Section 85 of the Cr. P. C. in CC/447/SS/2005; CC/448/SS/2005; CC/449/SS/2005; CC/450/SS/2005; CC/451/SS/2005; CC/27/SS/2013, to lift the attachment, release and restore the said property to them. The Complainant (Respondent No. 2 herein), recorded his no objection for releasing and restoring the said property to the Petitioners. These applications were heard and rejected by order dated 21st November, 2019 on the following grounds;
(i) On previous occasion, identical application was rejected and the order was upheld in revision.
(ii) the Court has no power to review earlier order.
(iii) the Court has no jurisdic
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