Andhra Pradesh High Court - Amravati
Abdul Raheem And Others vs State Of Gujarat Reported In (2002) 10 ... on 12 August, 2024
APHC010291392024
IN THE HIGH COURT OF ANDHRA
PRADESH
[3368]
AT AMARAVATI
(Special Original Jurisdiction)
MONDAY, THE TWELFTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI
CRIMINAL PETITION NO: 4712/2024
Between:
Abdul Raheem and Others ...PETITIONER/ACCUSED(S)
AND
The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT
Counsel for the Petitioner/accused(S):
1. NARASIMHA RAO GUDISEVA
Counsel for the Respondent/complainant:
1. PUBLIC PROSECUTOR
The Court made the following:
ORDER:
This Criminal Petition is filed by the petitioners/A1 & A2,
under Section 482 of Code of Criminal Procedure, 1973, seeking to
quash the docket order dated 11.07.2023 in C.C.No.628 of 2019 on
the file of the learned Additional Judicial Magistrate of First Class-
cum-Additional Junior Civil Judge, at Gudivada.
2. Heard Sri Narasimha Rao Gudiseva, learned counsel for the
petitioners and learned Assistant Public Prosecutor representing
State.
3. Learned counsel for the petitioners would submit that the
petitioners are A1 and A2 in C.C.No.628 of 2019 on the file of the
learned Additional Judicial Magistrate of First Class-cum-Additional
Junior Civil Judge, at Gudivada registered for the offences
punishable under Sections 406, 420 and 34 IPC. While so, the
petitioners herein/A1 & A2 filed Crl.M.P.Nos.122 of 2017 and 123 of
2017 respectively seeking return of property i.e., cash. The learned
Magistrate by Order dated 10.01.2017 in Crl.M.P.No.122 of 2017
and Crl.M.P.No.123 of 2017 allowed both the applications by
directing the petitioner therein to execute a bond for Rs.27,44,000/-
and Rs.3,60,000/- with single surety respectively and the petitioner
therein shall produce the cash as and when ordered by the learned
Magistrate and the learned Magistrate.
4. Further directed the SHO concerned to take photographs of
the said cash by the petitioner by putting their respective signatures
on the backside of the photograph. It appears that as per the said
order, the cash referred above was returned to the petitioners
herein/A1 & A2, after taking photographs and obtaining the
signatures on the backside of the photographs and the learned
Magistrate directed the petitioners herein/A1 & A2 to produce the
property i.e., cash, for trial.
5. The petitioners herein/A1 and A2 filed memos with a request
to mark the photographs instead of cash as it was submitted to the
Income Tax Department, in view of the notice dated 27.12.2015 and
later, the cash was exchanged in the Bank, in view of the
demonetization of currency notes of Rs.1,000/- value, as the cash
given for interim custody consists of currency notes of Rs.1,000/-
value and in that view of the matter as on the date, the petitioners
are not in a position to physically produce the property i.e., cash
given for the interim custody, due to subsequent events. Learned
Magistrate passed impugned order dated 11.07.2023 holding that in
this case vehicle was also returned for interim custody as the owner
of the vehicle obtained permission from the learned Sessions Court
to sell the vehicle but for the cash, no such permission was obtained
to deposit in the Bank after demonetization of the currency notes of
Rs.1,000/- value and without permission of the Court, the petitioners
exchanged the currency and they cannot do the same and
therefore, they are directed to produce the property i.e., cash which
was given to them for interim custody and rejected the requested of
the petitioners herein/A1 & A2 to mark the photographs as evidence
instead of cash.
6. Undisputedly, the property ie., cash in dispute was returned to
petitioners herein/A1 & A2 as per the orders dated 10.01.2017 in
Crl.M.P.Nos.122 of 2017 and 123 of 2017 by the learned Magistrate.
The learned Magistrate while ordering the interim custody of
property i.e., cash, directed the petitioners therein to execute a bond
with single surety for the sum mentioned in the orders and shall
produce the same as and when ordered by the learned Magistrate.
At the same time, learned Magistrate directed the SHO concerned
to take photographs of the cash by obtaining the signatures of the
petitioners herein/A1 & A2 on the backside of the photographs and
place the same on record.
7. Admittedly, subsequent to this order, the property ie., cash
was released to the petitioners for interim custody on execution of
bonds as directed by the learned Magistrate. But it appears that
subsequently due to demonetization of currency notes of Rs.1,000/-
value, the petitioners exchanged the said cash in the Bank as the
property contains currency notes of Rs.1,000/- value.
8. Therefore, as on today, the said property i.e., cash which was
released to the petitioners for interim custody is not in possession of
the petitioners/A1 & A2, as the same was exchanged with the Bank,
in view of the demonetization. Further, photographs are very much
available on the record as obtained by the SHO concerned, as per
the orders of the learned Magistrate. The petitioners herein/A1 & A2
submitted no objection for marking the said photographs as
evidence instead of cash.
9. Considering the facts and circumstances of the case and in
view of the judgment of the Hon'ble Apex Court in Sunderbhai
Ambalal Desai vs. State of Gujarat reported in (2002) 10 SCC 283,
this Court is of the considered opinion that with the photographs
which was taken by the SHO concerned, at the time of release of
cash to the petitioners herein/A1 & A2 for interim custody, the
learned Magistrate can proceed with the trail of the case,
accordingly.
10. The remaining aspect is regarding violation of the condition
imposed by the learned Magistrate i.e., breach of condition of the
bond executed by the petitioners herein/A1 & A2 by undertaking to
produce the cash before the Court as and when directed by the
learned Magistrate is concerned.
11. Undisputedly the petitioners did not take any permission from
the learned Magistrate for exchanging the cash in the Bank in view
of the demonetization circular issued by the Reserve Bank of India.
In that view, it is a matter to be considered by the learned
Magistrate, after giving an opportunity to the petitioners herein,
regarding breach of conditions of the bond as per law.
12. Therefore, the learned Magistrate is at liberty to proceed
against the petitioners herein as per law, if the learned Magistrate
opines that the petitioners committed breach of the condition of the
bond executed by the petitioners. But the learned Magistrate shall
not insist the petitioners herein/A1 & A2 to produce the property ie.,
cash which was released to them for interim custody, for the
purpose of trial, in the light of no objection submitted by the
petitioners herein/A1 & A2. Learned Magistrate can proceed with the
trial by marking the photographs of the cash taken by the SHO
concerned as evidence.
13. Accordingly, the Criminal Petition is disposed of at the
admission stage itself.
As a sequel, miscellaneous applications pending, if any, shall
stand closed.
_______________________ ___
JUSTICE B.V.L.N. CHAKRAVARTHI
12.08.2024.
PSA
THE HONOURABLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
CRIMINAL PETITION NO: 4712 of 2024
Date: 12.08.2024
PSA
