Gujarat High Court
Ishwarbhai Tekchand Dadlani vs State Of Gujarat on 4 August, 2025
NEUTRAL CITATION
R/SCR.A/17221/2024 ORDER DATED: 04/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL) NO. 17221 of
2024
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ISHWARBHAI TEKCHAND DADLANI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR KAVAN K PATEL(11303) for the Applicant(s) No. 1
MR VIVEK V BHAMARE(6710) for the Applicant(s) No. 1
MR ANKIT Y BACHANI(5424) for the Respondent(s) No. 2
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 04/08/2025
ORAL ORDER
1. The petitioner has preferred this petition seeking to invoke the extraordinary jurisdiction of this Hon'ble Court under Article 226 and supervisory jurisdiction under Article 227 of the Constitution of India, as well as inherent powers under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS") [corresponding to Section 482 of the Code of Criminal Procedure, 1973], praying to quash and set aside the order dated 26.07.2024 passed by the 8 th Additional Sessions Judge, Bhuj- Kachchh in Criminal Revision Application No. 28 of 2024, and further to issue directions for release of muddamal amount of Rs. 20,50,000/- lying in fixed deposit before the learned Trial Court in favour of the applicant.
2. The facts of the case are that, on 01.02.2022, an FIR being C.R. No. 110/2022 was registered at B Division Police Station, Bhuj under Sections 406 and 420 of IPC against Respondent No. 2 (original accused). The accused thereafter preferred an anticipatory bail application being CRMA No. 217 of 2022 before the learned Sessions Court, Bhuj. The learned Sessions Judge granted anticipatory bail vide order dated 22.02.2022 on the Page 1 of 7 Uploaded by ALI ISTAYAK(HC01093) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:41:22 IST 2025 NEUTRAL CITATION R/SCR.A/17221/2024 ORDER DATED: 04/08/2025 undefined condition that the accused shall deposit an amount of Rs. 20,50,000/- before the learned Trial Court. Upon completion of the investigation, the charge sheet came to be filed on 21.04.2022, which culminated into Criminal Case No. 1418/2022 pending before the learned Trial Court. Subsequently, the present petitioner (original complainant) preferred an application under Section 451 of CrPC being CRMA No. 190 of 2022 before the 5th Additional Chief Judicial Magistrate, Bhuj seeking release of the amount of Rs. 20,50,000/-. The learned Magistrate allowed the application vide order dated 29.09.2022 and directed that the said amount, which had been deposited on 20.07.2022, be kept in fixed deposit until released to the complainant. Aggrieved by the order dated 29.09.2022, Respondent No. 2 preferred Criminal Revision Application No. 28 of 2024 before the learned Sessions Court, which came to be allowed vide order dated 26.07.2024, thereby quashing and setting aside the order dated 29.09.2022.
3. Learned advocate for the petitioner submitted that the trial Court erroneously allowed the release of the amount to the complainant without conducting any inquiry or granting opportunity of hearing to Respondent No. 2, who had deposited the said amount only to comply with the bail condition and not in acknowledgment of any liability. It was further submitted that the bail order dated 22.02.2022 passed in CRMA No. 217 of 2022 does not contain any direction for the said amount to be handed over to the complainant and that the condition was merely to secure the presence and bona fide of the accused.
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4. Upon hearing learned advocates for the respective parties and on perusal of the record, it appears that without issuing notice to the present petitioner and on the same day on 29 th September 2022, the learned Magistrate has straightway passed the following order:
"Order On perused of the contents of this application the endorsement made by Nazar shri chief court, the applicant is entitled to receive the amount. Here, nazarshri is directed to pay the sum of Rs.2,50,000/- along with the interest on the said amount kept as fixed deposit from 20.7.2022 onwards till it is paid to the applicant."
No such endorsement has been made by the Nazar.
5. On 29.08.2022, the amount was kept in fixed deposit, and on 20.07.2022, an entry-wise endorsement was made by the Nazar. Below the said endorsement, the 5 th Additional Chief Judicial Magistrate, Bhuj, passed the impugned order. Upon perusal of the application filed by the applicant-original complainant, it is revealed that the offence was registered under Sections 406 and 420 of the IPC, alleging that the accused received a demand draft of Rs. 26,00,000/- under the pretext of making a donation to the trust run by the complainant, namely "Jay Ambey Seva Trust," out of which Rs. 20,50,000/- was received by the accused. Thereafter, no amount was given to the said Trust by the accused. It is in relation to this transaction that the FIR came to be registered, and the accused filed CRMA No. 217 of 2022 before the learned Sessions Court, Bhuj, and deposited the amount as a condition for grant of anticipatory bail. It is pertinent to note that the said amount was neither seized nor recovered during the course of investigation, nor was Page 3 of 7 Uploaded by ALI ISTAYAK(HC01093) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:41:22 IST 2025 NEUTRAL CITATION R/SCR.A/17221/2024 ORDER DATED: 04/08/2025 undefined it produced before the learned Trial Court as muddamal property in connection with the alleged offence. It is thus evident that the complainant claims to have paid the said amount to "Jay Ambey Seva Trust." However, in the application, it is nowhere stated that the learned Sessions Judge passed any order on the basis of evidence or that any notice was issued to the accused, who had deposited the amount, before arriving at the conclusion that the complainant was entitled to receive the same. On this basis, the Nazir was directed to release the amount in favour of the complainant. The said order reflects non-application of mind on the part of the learned Magistrate and is in disregard of settled principles of law. Moreover, while returning valuable muddamal, no procedure or precautions as prescribed under Rule 227 of the Criminal Manual were followed.
6. Even otherwise, while considering an application for return of seized property, it is settled law that an opportunity of being heard must be given to the aggrieved party before passing such an order. In this regard, reliance is placed on the judgment of the Hon'ble Supreme Court in State Bank of India v. Rajendra Kumar Singh, AIR 1969 SC 401, where it was held that in cases where property is deposited by one party and returned to another without hearing the depositor, such orders cannot be sustained. In the present case, the accused, who deposited the amount in compliance with the bail condition, assailed the order of release by way of a revision application as no opportunity of hearing was granted to him, and the learned Magistrate straightaway proceeded to pass the order holding the Page 4 of 7 Uploaded by ALI ISTAYAK(HC01093) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:41:22 IST 2025 NEUTRAL CITATION R/SCR.A/17221/2024 ORDER DATED: 04/08/2025 undefined complainant entitled to the said amount.
7. Even more concerning is that on the very same day, a cheque was issued in favour of the complainant along with interest, bypassing the procedure laid down in the Criminal Manual, and without affording reasonable time to file a revision. In such cases, the Presiding Officer must exercise greater caution, particularly when dealing with valuable muddamal. Both the Court and the Investigating Agency have a serious public duty to be performed and performance of such duty means accountability to the cause, conscience and the public. Herein, learned Magistrate has not applied his mind in passing judicial order and merely relied upon the endorsement made by the Nazar and passed the said order. Even Nazar has not put any endorsement, even though it does not fall in the purview of the Nazar. Even Court has to exercise its own judicial mind in passing the order, and not only based on endorsement of the Nazar, and that too by misreading and adding the sentence that:
"the endorsement made by Nazar Shri Chief Court, the applicant is entitled to receive the amount," as discussed above.
8. In view of the above, it clearly appears that the order passed by the learned Magistrate is not sustainable in law. The trial Court, without issuing notice to the accused and without affording any opportunity of hearing, proceeded to pass the order dated 29.09.2022. It is also apparent that the Nazar's endorsement merely records that an amount of Rs. 20,50,000/- was deposited on five different dates, but it does not opine or Page 5 of 7 Uploaded by ALI ISTAYAK(HC01093) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 21:41:22 IST 2025 NEUTRAL CITATION R/SCR.A/17221/2024 ORDER DATED: 04/08/2025 undefined recommend disbursement of the said amount to the complainant.
9. It is pertinent to note that muddamal amount is not seized by police during the investigation. However, the trial Court has failed to appreciate that the said amount was deposited by the accused pursuant to the bail order dated 22.02.2022. A plain reading of the said order reveals that no direction was issued for disbursement of the deposited amount to the complainant. The said condition was imposed only for the purpose of bail and does not create any vested right in favour of the complainant to claim the said amount. Furthermore, the trial Court did not consider the entitlement or legitimate claim of the complainant over the amount in question, nor did it conduct any inquiry before passing the impugned order.
10. The order of the learned Magistrate reflects non-application of mind and appears to have been passed either under misconception or misreading of the bail order. The Sessions Court, therefore, rightly quashed and set aside the order dated 29.09.2022.
11. In view of the above discussion, this Court is of the considered opinion that no case is made out for interference in the impugned order dated 26.07.2024 passed by the learned 8 th Additional Sessions Judge, Bhuj-Kachchh in Criminal Revision Application No. 28 of 2024. The said order is just, proper, and legal.
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13. It is, however, clarified that if during the pendency of the proceedings any amount has been disbursed to the applicant (complainant), the same shall be redeposited along with interest accrued thereon before the learned Trial Court. The amount shall continue to be kept in fixed deposit, subject to the final outcome of the trial. Upon conclusion of the trial, the learned Trial Court shall pass appropriate orders regarding entitlement to the said amount after proper inquiry.
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