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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 3912 OF 2019

Gumanmal Bakhtavarmal Rathod

]

Aged 44 years, Residing at 64/64/A,

]

Shaikh Memon Street, 3^rd floor,

]

Near Bhagat Tarachand, Mumbai – 400 002.

]

… Petitioner

V/s.

1.

Nilesh Fatechand Porwal

]

Tarabaug, Sapna Apartment,

]

Ground floor, Love Lane, Byculla,

]

Mumbai – 400 027.

]

2.

Mukesh Tulsichand Jain

]

Residing at Shivaml Building,

]

“B” Wing, 2^nd floor, Room No.218,

]

10^th Kamathipura, Mumbai – 400 008.

]

3.

The State of Maharashtra

]

4.

Heena Mukesh Jain

]

Residing at Shivaml Building,

]

“B” Wing, 2^nd floor, Room No.218,

]

10^th Kamthipura, Mumbai – 400 008.

]

… Respondents

Mr. Ganesh Bhujbal for Petitioner.

Mr. Kamlesh Jain for Respondent No.1.

Mr. Rajesh Jain for Respondent No.2.

Ms. Sharmila S. Kaushik, A.P.P. for Respondent No.3-State.

Mr. Prabhanjay Dave a/w. Mr.Ankit Rajput i/b. Mr.Manoj Vishwakarma for

Respondent No.4.

CORAM : A.S. GADKARI, J.

DATE : 13^th June 2022.

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ORAL JUDGMENT :-

1.

By the present Petition under Article 227 of the Constitution of

India, the Petitioner, first informant has impugned Judgment and Order dated

28^th June 2019 passed in Criminal Revision Application No. 102 of 2018,

dismissing the said Revision preferred by the Petitioner, thereby confirming

the Order dated 1^st November 2017, rejecting his Miscellaneous Application

No. 42 of 2016 filed under Section 451 of the Criminal Procedure Code (for

short, ‘Cr.P.C.) for return of property seized by the Police.

2.

Heard Mr.Ganesh Bhujbal, learned Advocate for the Petitioner,

Mr.Kamlesh Jain, learned Advocate for Respondent No.1, Mr.Rajesh Jain,

learned Advocate for Respondent No.2 and Ms.Kaushik, learned A.P.P. for

Respondent No.3 and Mr.Dave, learned counsel for Respondent No.4. Perused

record.

3.

Record indicates that, on the basis of the First Information Report

lodged by the Petitioner, a crime bearing No.200 of 2016 was lodged on 31^st

May 2016 with L.T. Marg Police Station, Mumbai, under Section 408 and 411

of the Indian Penal Code. After completion of investigation, police submitted

chargesheet in the Court of Metropolitan Magistrate, 28^th Court, Esplanade,

Mumbai. Respondent Nos.1 & 2 are the accused persons in the said crime.

Respondent No.4 is the wife of Respondent No.2.

4.

It is the prosecution case that, the Petitioner had given 1180

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grams and 500 milligrams of gold ornaments to Respondent No.1 for its sale.

However, he sold the said ornaments to Respondent No.2, committed criminal

breach of trust and defalcated the said property. During the course of

investigation, 405.520 grams of gold ingot was recovered at the instance of

Respondent No.2 from his house. It is the said stolen property of which

interim custody is claimed by the Respondent No.4 i.e. wife of Respondent

No.2.

5.

Petitioner therefore filed M.A. No. 42 of 2016 and Respondent

No.4 filed M.A. No. 55 of 2016, under Section 451 of Cr.P.C. for return of the

said seized property during the pendency of trial. Trial Court by its common

Order dated 1^st November 2017 rejected both the applications. Petitioner

thereafter preferred aforestated Criminal Revision Application No. 102 of

2018 against the Order of trial Court, which has been dismissed by the

Revisional Court by its impugned Judgment and Order dated 28^th June 2019.

6.

Mr.Bhujbal, learned Advocate for the Petitioner submitted that,

the Petitioner is the informant and the said property belonging to him has

been seized by the police during the course of investigation. That, the

Petitioner had given ornaments to the Respondent No.1 for its onward sale.

However, Respondent No.1 committed criminal breach of trust and defalcated

it. He submitted that, in view of the law laid down by the Hon’ble Supreme

Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujrat, reported in

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