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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
Two-year limitation for property restoration under Section 85 Cr.P.C. may be extended for reasonable cause, ensuring fairness in judicial process.
Headnote:(A) Code of Criminal Procedure, 1973 - Sections 83 and 85 - Attachment of property - Petitioners sought to lift attachment of property attached under Section 83, and the order was previously rejected by the Metropolitan Magistrate - Court held that a delay beyond two years can be excused if there is a reasonable cause shown - The application is to be considered on merits even if filed after the stipulated time. (Paras 16 and 17)
(B) Natural justice - The Court emphasized that justice should not be abrogated due to procedural strictness, and reasonable cause must be properly considered by the Magistrate.
Facts of the case:
The Petitioners challenged the Metropolitan Magistrate's decision rejecting their application to restore property attached in 2008 due to complaints under Section 138 of the Negotiable Instruments Act, even after a settlement was reached.
Findings of Court:
The Court set aside the lower court's order, asserting that applications under Section 85 for restoration of property should be judged on the merits and not solely based on timing.
Issues: Whether the right to seek release under Section 85 of Cr.P.C. is extinguished after two years?
Ratio Decidendi: The two-year limitation for seeking restoration does not apply if reasonable cause for delay is demonstrated. Courts should not frustrate the intent of the law by strictly interpreting limitations without regard to justice.
Result: The impugned order was quashed and the application was directed to be reconsidered on its merits.
The legal decision emphasizes that the two-year limitation period for seeking the restoration of attached property under Section 85 of the Cr.P.C. can be extended if a reasonable cause is demonstrated. The court clarified that strict adherence to the two-year limit should not override the fundamental principles of justice and fairness, especially when circumstances beyond the control of the applicant prevented timely action (!) (!) .
Furthermore, the court highlighted that applications filed after the two-year period should not be automatically dismissed if the applicant can prove that they were prevented by sufficient cause from approaching the court within the prescribed timeframe (!) . The underlying purpose of the law is to facilitate justice rather than to impose rigid procedural constraints that could undermine the rights of the parties involved (!) .
In this case, the court found that the petitioner was prevented by sufficient cause from filing the application within two years, due to circumstances such as ongoing civil proceedings and attachment orders that were only resolved later. Consequently, the court held that the order rejecting the application based solely on the expiration of the two-year limit was incorrect, and directed the concerned magistrate to reconsider the application on its merits, taking into account the reasons for the delay (!) .
The decision underscores that procedural strictness should not hinder substantive justice, and applications under Section 85 of the Cr.P.C. should be evaluated on a case-by-case basis, considering whether the applicant had a justifiable reason for the delay (!) . The court also directed that the petitioners should formally reapply, and within a specified period, the application should be decided in accordance with the principles laid down in the judgment (!) .
Overall, the ruling reinforces the principle that limitations are not absolute and that courts have the discretion to extend or relax procedural timelines when justified by the circumstances, ensuring that justice is served fairly and equitably (!) (!) (!) .
| Table of Content |
|---|
| 1. petition under article 227 regarding property attachment. (Para 1 , 3) |
| 2. background facts involving attachment and complaints under the negotiable instruments act. (Para 4 , 5) |
| 3. previous applications for restoration were rejected based on jurisdiction and time. (Para 6 , 10) |
| 4. court's authority to extend deadlines based on reasonable cause. (Para 11 , 12 , 16) |
| 5. final orders and direction to reconsider the restoration 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 a
