Criminal Revision Application No.188 of 1998

10th April, 2006

Petitioner Counsel: Shri. V. R. SONWALKAR
Respondent Counsel: Smt. RANJANA REDDY,Shri. RAJENDRA DESHMUKH, Adv. holding for Shri. S. A. DESHMUKH

Cases Cited:
Ismail Vs. State of Karnataka, 1997(1) Crimes 328 [Para 4,8]
N. Madhavan Vs. State of Kerala, AIR 1979 SC 1829 [Para 7]

JUDGMENT

JUDGMENT :- Respondent No.2 was prosecuted for commission of theft on the basis of complaint lodged by the petitioner. He, however, was acquitted by Judicial Magistrate First Class, Ambajogai in Regular Criminal Case No.9/1981 by order dated 29-04-1987. In the final order, learned Trial Judge directed that the property, which was given to the complainant on his bond should be returned to Respondent no.2 from whom it was attached. In this view of the matter, the petitioner (original complainant) preferred an appeal being Criminal Appeal No.62/1987 under Section 454 of the Code of Criminal Procedure. The appeal came to be dismissed by learned Additional Sessions Judge, Ambajogai on 21-03-1998. The orders in respect of return of the property only are impugned in the present revision petition.

2. The facts, in nutshell, are that the complainant had taken a contract for construction of some structures and fitting of Fly Proof Mesh for the Medical College at Ambajogai. The work was completed in the year 1979. There was a dispute between Respondent no.2 and the petitioner in respect of the accounts. Lateron, there were some disputes between Respondent No.3 and the petitioner sometime in the year 1980. As a result, respondent no.3 took Fly Proof Mesh and respondent no.2 took centering material. Being aggrieved, complainant lodged a complaint of theft against respondent nos.2 and 3. At the conclusion of the trial, it was found that the respondents 2 and 3 have not committed theft and that the complaint was filed in view of the disputes of civil nature between the parties. In this view of the matter, learned Trial Judge acquitted respondent nos.2 and 3 and directed that the fly proof mesh be returned to respondent no.3, from whom it was attached. The centering material was with the respondent no.2. The bond executed by him was to lapse after the expiry of the appeal period.

3. Being aggrieved by order of return of the property, the petitioner preferred Criminal Appeal No.62/1987. Learned Appellate Judge found that there is no iota of evidence to show that the property in question belongs to the complainant. Learned Judge has also taken into consideration the receipts produced by the petitioner. It was found that the person, from whom the property was alleged to have been purchased, is not examined. Not only that, there is no description of the property purchased under these receipts. According to learned Judge, there was no material on record to show that the petitioner can set up a competing title to the property in question. In this view of the matter, he dismissed the appeal by order dated 21st March, 1998.

4. Learned Counsel for the petitioner contends that an inquiry, as contemplated by Section 452 of Cr.P.C., has not been conducted by the Trial Court before passing an order regarding disposal of the property. Therefore, the order deserves to be set aside. Consequently, order of the appellate court, confirming order of the Trial Court cannot stand. In support of this contention, reliance is placed on the ruling of Karnataka High Court, reported in 1997(1) Crimes 328 in the matter of Ismail Vs. State of Karnataka and Anr..

5. Per contra, learned Counsel for respondent no.2 submits that on the basis of evidence on record the trial court has come to the conclusion that no theft has been committed by respondent nos.2 and 3 and that the petitioner is not entitled to the property in question. Therefore, it cannot be said that no inquiry is conducted. According to learned Counsel, the order passed regarding disposal of the property is well founded. Therefore, the petition deserves to be dismissed.

6. Learned A.P.P. for respondent no.1/State has submitted that powers are also conferred on the Appellate Court for conducting an inquiry regarding the disposal of property in case of a dispute.

7. The criminal court has jurisdiction to pass final order regarding disposal of the property in respect of which the offence appears to have been committed. For this purpose, reference can be made to sub-section (5) of Section 452 of Criminal Procedure Code. In this section, the term "property" includes, the property regarding which an offence appears to have been committed, as also the property which originally had been in the possession or under the control of any party and any property into or for which the original property may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise. Section 452 applies only when any property or document was produced before the Court or was in its custody if any offence appears to have been committed in respect of such property or the property which appears to have been used for commission of any offence. If the Court comes to a conclusion that no offence has been committed in respect of the property produced before it, the property has to be returned to the person, from whose possession it is attached. The principles governing return of property are discussed by the Apex Court in the matter of N. Madhavan Vs. State of Kerala, reported in AIR 1979 SC 1829. In that case also, accused came to be acquitted. After quoting sub-section (1) of Section 452 of Code of Criminal Procedure, 1973, Their Lordships observed in para 8 of the report that : An analysis of this provision would show that it refers to property or document (a) which is produced before the Court, or (b) which is in the custody of the Court, or (c) regarding which any offence appears to have been committed, or (d) which has been used for the commission of any offence. Then, at the conclusion of the enquiry or trial, the disposal of any class of the property listed above, may be made by (i) destruction, (ii) confiscation, or (iii) delivery to any person entitled to the possession thereof. In that case, a gun was the subject matter. The finding was that the gun was not used for commission of the offence. In this context, Their Lordships observed in para 10 of the report that : "One of such a well-recognized principles is that when after an inquiry or trial the accused is discharged or acquitted, the Court should normally restore the property of class (a) or (b) to the person from whose custody it was taken. Departure from this salutary rule of practice is not to be lightly made, when there is no dispute or doubt - as in the instance case - that the property in question was seized from the custody of such accused and belonged to him." In the present case, it is not in dispute that the centering material, which is the subject matter of theft, was in possession of respondent no.2. His possession was not disturbed, but he was directed to execute a bond. So far as fly proof mesh is concerned, it was attached from respondent no.3. Respondent nos.2 and 3 came to be acquitted on the basis of a finding that they have not committed a theft of the property before the Court. Thus, learned Trial Judge directed that the property be restored to the person from whom it was attached or to the person who was in possession of the property. The petitioner is not in a position to set up a competing title to the property. So called receipts produced on records do not give description of the property and thus do not establish title of the petitioner. Therefore, there were no competing claims to the property in question. Hence, it was not necessary for the learned Magistrate to conduct an enquiry regarding entitlement of the rival claimants. In this view of the matter, contention of learned Counsel for the petitioner that the order regarding disposal of property is illegal, as no enquiry was conducted by the Magistrate before passing the order, cannot be sustained.

8. Learned Counsel for the petitioner has referred to the ruling of Karnataka High Court reported in the matter of Ismail (supra). In that case, amount of Rs.7,000/- was attached from the accused. The accused came to be acquitted. However, order was passed that the money should be given to the complainant. As there was departure from the rule that the property should be returned to the person from whom it was attached, the High Court has observed that the order regarding disposal of property should not have been passed without conducting necessary inquiry. It is, therefore, apparent that this ruling is not applicable to the facts of the present case. The Trial Judge as well as Appellate Judge have come to the conclusion that the persons from whom the property was attached, were entitled to the retain of the property. Referring to this finding, learned Counsel for the petitioner has contended that the criminal court can not decide title of the property. There can be no dispute regarding this proposition. However, in the present case the courts have not decided title to the property. They have merely given a direction to return the property to the person from whom it was attached, as the petitioner could not set up a competing claim. It is still open to the petitioner to approach civil court for resolving the dispute regarding title to the property. As the criminal court can not decide the title, the property is returned to the person from whom it was attached. In this view of the matter, no case for interference is made out. The petition, is, therefore, dismissed. Rule discharged.

Petition dismissed.