2006 ALL MR (Cri) 3164
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
S.P. KUKDAY, J.
Dinesh Hariram Agrawal & Anr.Vs.State Of Maharashtra & Ors.
Criminal Revision Application No.257 of 1998
18th April, 2006
Petitioner Counsel: Shri. VINOD PATIL, Adv. holding for Shri. A. S. BAJAJ
Respondent Counsel: Smt. RANJANA REDDY,Shri. G. V. WANI,Shri. JAYANT SHAH
(A) Criminal P.C. (1973), Ss.401, 397 - Revision - Order of acquittal - Conclusions drawn by trial Court based on sound reasoning - No illegality or infirmity committed by trial Court in appreciating the evidence on record nor the trial court ignored material evidence - No other error of law or procedure, leading to miscarriage of justice, noticed or pointed out - Held, no case is made out for interference by the Court in exercise of its extraordinary jurisdiction. (Para 5)
(B) Criminal P.C. (1973), S.454 - Return of property - Appeal under S.454 against order of return of property - Limitation - Remedy of appeal is always available to aggrieved party - No liberty in this behalf is required to be granted - So far as limitation is concerned, held, petitioner can always seek condonation of delay on ground that he was litigating the cause under wrong forum under bonafide belief - Competent Court has to decide whether delay should be condoned or not. (Para 6)
JUDGMENT :- The petitioners impugne the order of acquittal passed by IV Additional Sessions Judge, Jalgaon on 3-7-1998 passed in Sessions Case No.260/1993, acquitting respondent nos.2 to 8 of the offences punishable under Sections 120-B, 395 and 397 of the Indian Penal Code.
2. The relevant facts, in nutshell, are that Dinesh Agrawal (PW-4) was running an Oil Mill at Khamgaon. Dwarkadas (PW-6) was the Munim. On 29-12-1992, cash collection by the evening was Rs.2,20,000/-. Dwarkadas was carrying this cash. While he was passing by the railway station road at about 7.30 p.m., two strangers attacked him from the back side, snatched the bag and decamped with the booty. Dwarkadas chased them, but did not succeed. He then went to the oil mill and informed the occurrence to the owner. On the instructions of the employer, Dwarkadas lodged a complaint (Exh.94), on the basis of which, investigation was conducted. During the course of the investigation, cash amount of Rs.1,48,468/- and some ornaments were attached.
3. It is the case of the prosecution that respondent nos.2 to 8 were involved in the commission of an offence and had utilized the cash for purchasing ornaments. However, prosecution could not establish the guilt of the accused as the complainant could not identify the culprits and the discovery was not proved. In these circumstances, in the absence of cogent evidence, respondent nos.2 to 8 came to be acquitted.
5. Though the learned Counsel for the petitioners contends that the acquittal cannot be justified in view of the evidence on record, it can be seen that the main grievance is in respect of the return of property. For that purpose, the proper course was to file an appeal as provided by Section 454 of the Code of Criminal Procedure. Instead of availing this remedy, the present petition came to be filed for quashing the order of acquittal and the order regarding return of the property. As has been shown earlier there is absolutely no evidence on record to establish involvement of respondent nos.2 to 8 in the commission of offence, in para 12 of the judgment the Trial Court has referred to an attempt on the part of the complainant to manipulate the contents of F.I.R.. Word Andhar (darkness) was changed to word "Prakash" (light). Similarly, words "Shaknar Nahi" (not possible) were converted to the words "Shakel" (is possible). It appears that the person, who indulged in the overwriting forgot that there was no dispute about the time of occurrence. Be that, as it may; it can be seen that identification parade was no properly conducted by the Executive Magistrate (Dilip Mahajan) (PW-11), as the complainant had an opportunity to see the accused in the chamber of Executive Magistrate before the identification parade was held. The Trial Court has also taken into consideration that the currency notes attached are not proved to be the part of the currency notes, which were robbed. Conclusions drawn by the trial Court are based on sound reasoning. No illegality or infirmity is committed by the Trial Court in appreciating the evidence on record. It is not the contention of learned Counsel that the trial Court has ignored material evidence. No other error of law or procedure, leading to the miscarriage of justice, is noticed or pointed out. As the findings recorded by the trial Court are based on the proper appreciation of the evidence, no case is made out for interference by this Court in the exercise of its extraordinary jurisdiction.
6. At this stage, learned Counsel for the petitioners submits that liberty be granted for approaching appropriate forum for challenging the order regarding return of the property. The petitioners could have filed an appeal under Section 454 of Cr.P.C. against the order of return of property and in fact could have insisted upon conducting separate inquiry regarding entitlement to the property as the petitioners had set up a competing title. As this was not done order regarding return of the property is passed in consonance with the law laid down by the Apex Court that the property has to be returned to the person from whose possession it was attached. The remedy of appeal is always available to aggrieved party. No liberty in this behalf is required to be granted. So far as limitation isconcerned, the petitioners can always seek condonation of delay on the ground that he was litigating the cause in the wrong forum under bonafide belief. The competent Court has to decide whether the delay should be condoned or not. As no case is made out for interference with the order of acquittal, the petition is dismissed. Rule is discharged.