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HIGH COURT OF BOMBAY
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
The court ruled that delays in seeking restoration of attached property may be excused if a justifiable reason is provided, ensuring adherence to justice rather than rigid timeframes.
Headnote:(A) Criminal Procedure Code, 1973 - Sections 83 and 85 - Release and restoration of attached property - Petitioners' application for lifting attachment after two years denied by Magistrate - Court holds that delay can be excused if justifiable cause is shown - Proper service of notice considered essential for exercising jurisdiction - Impugned order quashed to enable magistrate to decide on merits (Paras 12, 16, 17)
(B) Jurisdiction - The purpose of an attachment is to compel appearance, hence the magistrate must exercise discretion to consider delayed applications if justified (Paras 16, 17)
Facts of the case:
Petitioners sought the release of property attached under Section 83 of Cr.P.C. due to pending civil proceedings and a misappropriated title claim after a compromise was reached. The Magistrate rejected their application for not filing it within two years.
Findings of Court:
The court ruled that the two-year limitation could be exceeded if substantial cause for the delay was demonstrated. The original order was deemed to overlook circumstances preventing timely application.
Issues: Whether the right to seek release under Section 85 of Cr.P.C. beyond two years is extinguished without justifiable reason.
Ratio Decidendi: The court emphasized that applications filed beyond the two-year period may still be entertained if sufficient grounds are provided, highlighting the need to uphold justice over strict adherence to time limits.
Result: Impugned order quashed, petitioners directed to reapply for the lifting of attachment.
| Table of Content |
|---|
| 1. pending attachment and civil litigation surrounding property. (Para 4 , 5 , 6) |
| 2. question of whether the right to seek property release under cr.p.c. can be exercised after two years. (Para 10 , 11 , 12) |
| 3. importance of justifiable cause for delay in applications for lifting attachment. (Para 13 , 14 , 15 , 16) |
| 4. court's directive to revisit and decide on merits of petitioners’ application. (Para 17 , 18 , 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 the
