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BOMBAY HIGH COURT
SANDEEP K. SHINDE, J
M/s. J.B.D. Finance and Investment Ltd. – Appellant
Versus
State of Maharashtra – Respondent
Writ Petition No. 6107 / 2019 | Writ Petition No. 6104 / 2019 | Writ Petition No. 6105 / 2019 | Writ Petition No. 6106 / 2019
For the Appellants/Petitioners: Mr. Ashok M. Saraogi
For the Respondents: Mr. A.R. Patil, APP
Court may entertain applications to lift property attachments beyond two years if sufficient cause for delay is established, emphasizing justice over strict timelines.
Headnote:(A) Code of Criminal Procedure, 1973 - Sections 83, 84, and 85 - Attachment of property - Petitioners sought release of property attached under Section 83 - Metropolitan Magistrate rejected application due to delay beyond two years - Court held that application may be entertained beyond two years if sufficient cause is shown for delay, emphasizing the objective of ensuring justice rather than strict interpretation of timelines. (Paras 11, 12, 16, and 17)
(B) Attachment of property - Rights of proclaimed person - The Court must consider applications for release on the merits, ensuring that circumstances preventing timely application are properly assessed. (Paras 11 and 16)
Facts of the case:
Petitioners, companies directed by Dinesh Singh Lakra, challenged the rejection of their application for release and restoration of property attached under Section 83, previously in a summary suit for debt recovery, complicating their request.
Findings of Court:
The Court quashed the Magistrate's order for not considering justifiable circumstances for the late application and directed a re-evaluation based on the merits of the case.
Issues: Whether the right to seek release of property under Section 85 is extinguished after two years if sufficient cause for delay is shown.
Ratio Decidendi: The delay in seeking relief under Section 85 does not prevent the Court from considering the application if a justifiable cause for the delay is shown; the aim is to achieve justice.
Result: Petitioners' application under Section 85 is to be decided on merits by the Magistrate.
| Table of Content |
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| 1. background facts of the attachment and relevant proceedings. (Para 4 , 5 , 6) |
| 2. consideration of applications beyond the two-year rule for property release. (Para 11 , 12 , 16) |
| 3. court's directive to the magistrate to re-evaluate the application on merits. (Para 17 , 19) |
Judgment : -
1. 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 Pe
