Bombay High Court
Manoj Pannalal Jain vs The State Of Maharashtra And Ors on 9 December, 2016
Bench: V.K. Jadhav
cran4394.07
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 4394 OF 2007
Manoj s/o Pannalal Jain,
Age about 43 years, Occ. Business
R/o. Kazari Bazar, Aurangabad ...Applicant
versus
1. The State of Maharashtra
Through Public Prosecutor
High Court of Judicautre at
Bombay, Bench at Aurangabad
2. Sunil s/o Bhagwan Dalvi
Age about 42 years, Occ. Service
R/o. Snehalbagh Apartment
Kotwalpura, Khadkeshwar Road,
Aurangabad ...Respondents
.....
None present for the applicant
Mr. M.B. Bharwaswadkar A.P.P. for respondent No.1
Mr. Joydeep Chatterji, advocate for respondent No.2.
.....
CORAM : V. K. JADHAV, J.
DATED : 9th DECEMBER, 2016
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and order dated 26.7.2007,
passed by the Adhoc Additional Sessions Judge, Aurangabad in
Criminal Revision No. 188 of 2005, the goldsmith, Manoj Pannalal
Jain, has approached this court by filing present criminal application.
2. Brief facts, giving rise to the present criminal application, are
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as follows:-
a) On the basis of complaint lodged by respondent No.2 at
Kranti Chowk police station, crime No. 330 of 2002, for the offences
punishable under sections 380 and 454 r.w. 34 of I.P.C. came to be
registered. During the course of investigation, participation of two
accused persons in the crime was revealed and thus, after
conclusion of investigation, the concerned police has submitted
charge sheet before the learned Magistrate at Aurangabad, vide
R.C.C. No. 39 of 2003. The learned J.M.F.C. Aurangabad, by
judgment and order dated 6.5.2005, in R.C.C. No. 39 of 2003,
acquitted both the accused for the offences punishable under
Sections 380 and 454 r.w. 34 of I.P.C. and Muddemal property i.e.
golden bar, weighing 45 grams, was directed to be delivered to the
present applicant goldsmith Manoj Pannalal Jain, on the condition of
executing a bond of Rs.25,000/- to produce the said golden bar or its
equivalent if and when ordered by the court during the period of one
year.
b) Being aggrieved by the same, the respondent original
complainant has preferred criminal revision No. 188 of 2005 before
the Sessions Court, Aurangabad. The learned Adhoc Additional
Sessions Judge, Aurangabad, by its impugned judgment and order,
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as stated above, allowed the said revision and thereby quashed and
set aside the order passed by the J.M.F.C. Aurangabad in R.C.C.
No. 39 of 2003, as aforesaid, and further directed that the said
golden bar, weighing about 45 grams be returned to the respondent
complainant on his executing a bond in the sum of Rs.20,000/- for a
period of one year. Hence, this criminal application.
3. None present for the applicant.
4. With the help of learned A.P.P. and the learned counsel
appearing for the respondent original complainant, I have perused
the record, especially the judgment and order passed by the
Magistrate in R.C.C. No. 39 of 2003. In para 9 of the judgment, the
learned Magistrate has made the following observations:-
"9. As it is not established that, the accused committed
theft, the articles recovered cannot be termed as stolen
articles. Furthermore, the goldsmith from whom the
recovery of the ornaments made not supported the case of
the prosecution. The gold which is seized appears to be in
the form of lagad not in the form of ornaments. The
prosecution not established that, that lagad was prepared
by melting stolen gold ornaments only. In such
circumstances, the goldsmith from whom that gold
recovered is entitled for it."
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5. As per the prosecution case, on 16.9.2002, the respondent
complainant at about 2.00 p.m. went to bring his wife and son from
the school and alongwith them, when he returned back, found that
the door of his house was opened and the latch was broken. He
alongwith his wife, inspected the house and found that golden
jewellery and cash worth Rs.19,500/- was stolen.
6.
The learned Magistrate in para 9, as mentioned above,
observed that recovered articles cannot be termed as stolen articles
and goldsmith, from whom recovery of the ornaments made also not
supported the case of the prosecution. Learned Magistrate has also
observed that gold, which is seized appears to be in the form of
lagad and not in the form of ornaments. The learned Magistrate has
observed that the prosecution has failed to establish that the said
lagad/bar was prepared by melting the stolen gold ornaments only.
Even though such observations are made in para 9 of the judgment,
the learned Magistrate has held that the goldsmith i.e. present
applicant is entitled for the said golden bar. In criminal revision,
noticing this disparity, the Adhoc Additional Sessions Judge, has
rightly quashed and set aside the order passed by the Magistrate, as
aforesaid, to the extent of delivery of said property to the present
applicant goldsmith. However, further directed that the said bar be
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returned to the respondent-complainant.
7. Learned counsel for respondent No.2 complainant submits
that even though the ornaments were not recovered, as they were,
the golden bar is recovered from the applicant goldsmith. It is the
prosecution case that the original accused sold the said golden
jewellery to the applicant goldsmith and accordingly during the
course of investigation, the police seized the golden bar, weighing
about 45 grams from the applicant goldsmith. Even the revisional
Court has observed in the said judgment of acquittal that the
ornaments stolen from the house of the complainant also weighing
45 grams.
8. The learned Adhoc Additional Sessions Judge has rightly
quashed and set aside the order of Magistrate to the extent of
delivery of Muddemal property i.e. golden bar to the present
applicant goldsmith. However, the learned Sessions Judge has
committed error in directing that the golden bar, weighing 45 grams
be returned to the complainant. The applicant was the prosecution
witness in the said case and he has not supported the case in any
manner and therefore, the prosecution could not establish that the
accused in the said case sold the stolen ornaments to the applicant
goldsmith. Simply because the weight of the golden bar is the same
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as to the stolen golden jewellery, that cannot be a ground to return
the said golden bar to the complainant in absence of any
identification of the jewellery or in absence of any evidence that after
jewellery being sold to the applicant goldsmith, he converted it into
the said golden bar. In view of the above, this Court is left with no
other alternate but to confiscate the said golden bar to the State.
Hence, I proceed to pass the following order:-
ig ORDER
I. Criminal application is hereby partly allowed.
II. The judgment and order dated 26.7.2007, passed by the
learned Adhoc Additional Sessions Judge, Aurangabad
in Criminal Revision No. 188 of 2005 is hereby quashed
and set aside to the extent of direction to return the
golden bar, weighing about 45 grams to the respondent
complainant on his executing a bond of Rs.20,000/- for a
period of one year.
III. Instead of that, it is directed that the said golden bar,
weighing about 45 grams be confiscated to the State
Government and it be delivered to the nearest Gold
Control Officer or the Officer above the rank of
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Superintendent of Central Excise for being dealt with the
provisions of Gold Control Act, 1968.
IV. In the light of above, learned Magistrate at Aurangabad
shall take appropriate steps for recovery of said
Muddemal property, which is already delivered to the
present applicant, for giving effect to this order.
V.
Rule made absolute in the above terms.
VI. Criminal application is disposed of accordingly.
( V. K. JADHAV, J.)
rlj/
