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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, APP
The court confirmed that justifiable circumstances can allow late applications for property restoration under Section 85 of the Code, emphasizing fair access to justice over rigid time constraints.
Headnote:(A) Constitution of India - Article 227 - Code of Criminal Procedure, 1973 - Section 82, 83, 84, and 85 - Property attachment and restoration - Petitioners sought restoration of property attached under Section 83, claiming sufficient cause prevented timely application under Section 85 - Court clarified that a justifiable cause can allow consideration of applications beyond the two-year limit established by Section 85(3), emphasizing the need for a fair assessment of each case. (Paras 16, 17)
(B) Criminal Procedure - The Court held that the mechanism for the attachment of property should not be a punitive measure but should aim to compel appearance and ensure justice; thus reasonable delays can be accounted for. (Paras 16, 17)
Facts of the case:
Petitioners' properties were attached due to complaints under the Negotiable Instruments Act, later resolved and acquitted. They were denied restoration due to timing issues.
Findings of Court:
The attachment could be lifted, and justifiable delays must be considered, hence the Magistrate must address the merits of the application.
Issues: Whether the petitioners' right to seek release of property under Section 85 beyond two years stands extinguished.
Ratio Decidendi: The Court concluded that reasonable cause excuses the two-year limit for submitting applications under Section 85. The Court is obligated to ensure just outcomes rather than apply the law rigidly. (Para 16)
Result: The impugned order dated 21st November, 2019 is quashed; petitioners' application to be decided on merits.
| Table of Content |
|---|
| 1. overview of property attachment due to complaints. (Para 3 , 4 , 5 , 6) |
| 2. court's duty to assess justifiable cause for late applications. (Para 8 , 9 , 10 , 11) |
| 3. limitations on applications under section 85 can be relaxed with sufficient cause. (Para 15 , 16 , 17) |
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 Petition
