Mukesh Kumar And Anr vs State Of Jammu & Kashmir And Anr

Through the instant petition filed under Section 561-A of the Code of Criminal Procedure ( for short Cr.P.C.) petitioners seek quashing of the order dated 03.03.2018 passed by the Court of learned Munsiff (JMIC), Kishtwar whereby the application filed by the petitioners in Criminal Challan pending disposal before the said court titled "State vs.Naresh Kumar & Ors." arising out of the FIR No.165/2015 of Police Station, Kishtwar for the offences under Sections 419/420 r/w 120-B R.Р.С., has been dismissed.

The brief facts leading to the registration of FIR No.165/2015 with Police Station, Kishtwar are that the accused persons in conspiracy cheated the petitioners of an amount to the tune of Rs.35.00 lacs, for which, at the instance of the petitioners an FIR No.165/2015 came to be registered with the Police Station, Kishtwar for commission of offence under section 419/420 read with 120-B RPC. During the course of investigation, the accused persons were arrested and a sum of Rs.35.00 lacs was also recovered from them. The amount, which was recovered from the accused and with respect to which offence had been committed, was deposited in the Government Treasury by the orders of the trial court. The trial court i.e. the court of learned Munsiff (JMIC) Kishtwar had passed order on 31.10.2015 thereby rejecting the application of the petitioners herein for the custody of the property in their favour. The amount recovered by Police i.e. Rs.35.00 Lacs during the investigation is the amount which the accused persons had received from the petitioners by playing fraud and cheating and the petitioners are the bona fide claimants of that amount. In pursuance to the well planned conspiracy the accused persons made the petitioners to believe that a metal i.e. a 'Trat Gola' which is very precious as same falls on earth from the sky and, as such, petitioners were made to part with hefty amount of Rs.35.00 lacs to the accused persons for searching and providing the petitioner that 'Trat Gola'. It was a total fraud, which had been played by the accused on the petitioners and petitioners were made to part with their hard earned money, for which, the FIR came to be registered with the Police Station. Kishtwar. The accused persons had induced the present petitioners to arrange an amount of Rs.35.00 Lacs to be paid to the said accused persons by the petitioners so that the said ball could be handed over to the petitioners. The petitioners having fallen prey to the inducements and assurances were constrained to even sell out their landed property purchased by them out of their hard earned money and the petitioners had entered into agreements to sell their landed property and had received payments from the prospective buyers and the same payment was ultimately obtained by the accused persons from the petitioners and the same very amount was recovered from the accused persons after the registration of the FIR and during investigation.

It is contended that petitioner No.1 had on an earlier occasion applied for the release of said amount but the said application was dismissed by the court of learned Munsiff (JMIC), Kishtwar vide its order dated 14.06.2016 and the petitioner no.1 had preferred a petition under Section 561-A Cr.P.C. against the said order before this Hon'ble Court and this Hon'ble Court vide its order dated 28.09.2017 dismissed the same but gave the liberty to petitioner to approach the court of learned Munsiff (JMIC), Kishtwar for the release of the said amount after the charge sheet in this regard is filed before the Trial Court. Since the petitioners were in dire need of the above said amount which has been seized from the accused persons by the Police of Police Station, Kishtwar and against the said persons the Challan under the relevant provisions of RPC has also been filed by the Police Station, Kishtwar, the petitioners herein once again approached the learned Trial Court with an application seeking release of the seized amount in their favour. However, the Trial court after calling for the objections from the State as well as the accused persons and after hearing all the interested parties, dismissed the said application vide its order dated 03.03.2018.

The petitioners through the medium of present petition have sought the quashment of the impugned order dated 03.03.2018 and challenged the same, on the following grounds: a) That the order dated 03.03.2018 passed by the leaned Court of Munsiff UMIC), Kishtwar whereby the application filed by the petitioners in Criminal Challan pending disposal before the said court titled "State vs. Naresh Kumar & Ors." arising out of the FIR No.165/2015 of Police Station, Kishtwar for the offences under Sections 419/420 r/w 120-B R.P.C. herein has been dismissed by the said court, is bad in the eyes of law hence liable to be quashed. The trial court has failed to appreciate that the case set up by the petitioners has been agreed to by the prosecution and it is the case of the prosecution that the amount, which had been recovered from the accused i.e. sum of Rs.35.00 lacs belongs to the petitioners as otherwise there would have been no challan in the case. Once the prosecution has concluded that the amount belongs to the petitioners then it is the petitioners, who are entitled to the interim custody of the same and this aspect of the matter has been ignored by the learned trial court while passing the order impugned in the present petition.

b) That it was the positive case of the petitioners before the learned trial court that the fact that Investigating Agency has filed the challan in the trial court against the accused persons which clearly shows that the commission of the said offences has been established by the investigation officers against the said accused persons and which also raises a presumption in favour of the petitioners that the recovered amount belongs to the petitioners. If the investigating officer had come to the contrary view in the investigation then it could have been doubted that the amount recovered from the accused belongs to the petitioners.

c) That otherwise also, till date no other claimant including the accused persons has come forward for the release of the recovered amount. Further, the accused persons while getting their belonging released from this Hon'ble Court did not even claim the release of said amount in their favour which clearly shows that the said amount did belong to the accused persons.

d) That, as already submitted the amount recovered from the accused persons is the same amount which the accused persons had received from the petitioners and the petitioners are in dire need of the said amount in order to run their household and to do their business and the petitioners being the rightful and bonafide claimants of the same are entitled for the release of same in their favour. Otherwise also, the amount which is lying in the Government Treasury is of no help to any person and after its release in favour of the petitioners the same can be put to some use.

e) That otherwise also the accused in the case had filed an application for getting their belongings released from the learned court below and the accused never claimed the sum of Rs.35.00 lacs as their own property. In a way, the accused have admitted that the said amount of Rs.35 lacs does not belong to them and it is the petitioners, who are suffering for the non-release of the amount. The trial of the case can take one more decade for finalization but it is the petitioners, who are suffering as despite the fact that their amount had been recovered, the same is not being released in their favour.

f) That for the reference of this Hon'ble Court in a similar case investigated by the Crime Branch, Jammu where an amount of Rs.1.00 Crore was recovered from the accused persons and the same was released in favour of the informant/ complainant by the Court of Learned Electricity Magistrate, Jammu. Copy of the order abovementioned dated 22.06.2016 is annexed herewith and marked as Annexure-F for the kind perusal of this Hon'ble Court.

g)That the petitioners, who were the complainants in the matter, are being further victimized as various orders passed by the learned trial court from time to time will show that all the accused have jumped the bail and even their bail bonds have been forfeited. Even the cash security of the accused has been forfeited. The orders passed by the learned trial court from time to time are annexed herewith and collectively marked as Annexure-G for the kind perusal of this Hon'ble Court and perusal of the same will show that one of the accused has even gone abroad after jumping the bail. In view of the aforesaid circumstances the petitioners herein were entitled to have release of the amount in their favour during the pendency of the trial and the jurisdiction has not been rightly exercised by the Court below. The order impugned passed by the court below as such is not sustainable and liable to be set aside.

I have considered the rival contentions of parties. Counsel for petitioner has reiterated all grounds taken in memo of petition and during course of argument has also furnished an order of court below dated 26.10.2018 by virtue of which challan has been consigned to record as proceeding against the accused have been commenced under section 512 of Cr.P.C. as all accused have absconded. In support of his contention, learned counsel for the petitioners relies on a decision of the Hon'ble Supreme Court reported in 2003 AIR (SC) 638, Sunderbhai Ambalal Desai vs. State of Gujarat. Reliance is also placed on the judgment of Karnataka High Court reported in 2006 (2) CCR 322, Venkataraghavan vs. State of Karnataka and anr.

Whereas counsel for State has argued that seized money is case property so cannot be released.

I have given my thoughtful consideration to whole aspects of the matter and law on the subject.

The operative part of the impugned order dated 03.03.2018 reads as follows:-

"So based on the discussion made herein above and also keeping in view the fact that charges in afore-titled charge sheet are yet to be framed, I am of the firm opinion that there are no such compelling circumstances which would force this court to modify its earlier order dated 31.10.2015 and direct the restoration of seized amount of Rs. 35.00Lacs from safe vaults of Govt. Treasury Kishtwar to applicants at this juncture. The application on hand as such is dismissed. Any observations made herein shall be confined to the disposal of this application only and will have no bearing on the outcome of the trial regarding afore-titled charge sheet. The applicants herein or any other rightful claimant to the seized property are at liberty to approach this trial court with regard to release of seized amount subsequently either when there are change in circumstances (i.e. after framing of charges and some evidence comes on record) or at the time of conclusion of trial. The application on hand shall be attached with main file after due compilation under rules."

From bare perusal of impugned order, it is evident that court below has rejected the application for release of money on the ground that charges against accused are yet to be framed. The allegations against accused are that accused persons in conspiracy cheated the petitioners of an amount to the tune of Rs.35.00 lacs, for which, at the instance of the petitioners an FIR No.165/2015 came to be registered with the Police Station, Kishtwar for commission of offence under section 419/420 read with 120-B RPC. During investigation police has recovered and seized an amount of Rs.35 lakh from accused person. It is case of prosecution that money was obtained by accused by cheating. So there is no dispute with regard to fact that seized money belongs to the petitioners. The Apex Court in AIR 2003 SC 638 in case titled Sunderbhai Ambalal Desi v State of Gujrat, it has been held as under:-

"To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.

Valuable Articles and Currency Notes With regard to valuable articles, such as golden or sliver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451Cr.P.C. at the earliest.

For this purposes, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:-

(1) preparing detailed proper panchanama of such articles:

(2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security.

For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs or such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.

In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification, However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed."

Section 516-A of State Cr.P.C is pari materia with section 451 of Central Cr.P.C. From the foresaid mandate of law, it is clear that seized currency notes can be handed over to complainant/ victim from whom same have been stolen or taken by fraud or cheating. For that purpose, Court may impose appropriate conditions. In present case, seized currency has already been deposited in treasury, so question of identification of specific currency notes does not arise now. So there is no legal bar in releasing the currency in favour of complainants/petitioners after obtaining undertaking and surety of amount of Rs.35 lacs before releasing that in case of any other claimant/s, they will return the same. In view of above, impugned order is set aside; trial court is directed to release the seized money in favour of petitioners after obtaining surety and undertaking as mentioned above. This petition is disposed off accordingly.