Reshma Suraj Pawar vs The State Of Maharashtra And Ors
2021 Latest Caselaw 11526 Bom

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SHAGUFTA Q PATHAN                                                             48-WP-602-2021.doc
Q PATHAN Date:
         2021.08.30
         16:16:14
         +0530

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL WRIT PETITION NO.602 OF 2021


                   Dr. Reshma Suraj Pawar,
                   Aged about 48 years,
                   Occupation : Medical Profession,
                   R/o. Kolhapur Cancer Centre Pvt. Ltd.,
                   R.S. No. 238, Opposite Mayur Petrol Pump,
                   Gokul Shirgaon, Tal. Kolhapur,
                   Dist. Kolhapur, Pin : 416 234                       ...Petitioner
                                                                     (Ori. Applicant)
                        Versus
                   1. The State of Maharashtra,
                      At the instance of Shahupuri Police Station,
                      Kolhapur, C.R.No. 246/2018
                      (Notice to be served on the A.P.P.
                       High Court, Mumbai)

                   2. Rajendra Bhimrao Nerlekar,
                      Aged about 43 years,
                      Occupation : Business,
                      R/o. Hupari, Tal. Hatkanangale,
                      District : Kolhapur

                   3. Shahanoor Akbar Mujawar,
                      Since deceased through his heir
                      & legal representatives,
                      Nusarat Shahanoor Mujawar,
                      Aged about 39 years,
                      Occupation : Business,
                      R/o. "Jainhind Park" Bungalow No.4,
                      Plot No. 544/1, Kasba Bhawada,               ...Respondents
                      Kolhapur                           (No.2 is Orig.Accused No.1)




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            Mr. Dilip Bodake for the Petitioner

            Mr. A. R. Patil, A.P.P for the Respondent No.1-State
            None for the Respondent Nos. 2 & 3


                                     CORAM : REVATI MOHITE DERE, J.

(THROUGH VIDEO CONFERENCING) MONDAY, 23rd AUGUST 2021

ORAL JUDGMENT :

            1           Heard learned counsel for the parties.



            2           Rule. Rule is made returnable forthwith with the consent of

the parties and is taken up for final disposal. Learned APP waives service

on behalf of respondent No.1-State.

3 By this petition, the petitioner seeks quashing and setting aside

of the order dated 24th October 2019 passed by the learned Additional

Sessions Judge, Kolhapur, below Exhibit 28 in MPID Case No. 1/2018 and

further seeks release of her vehicle i.e. Audi A-6 35 TDI Limozin bearing

registration No. MH-09-EK-5083 in her favour.

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            4            On 22nd January 2021, this Court (Coram: A. S. Gadkari, J.)

issued notice to the respondent No.2, returnable on 12 th February 2021. In

addition to Court notice, the petitioner was also directed to serve the

respondent No.2 through private notice and to file affidavit of service in the

Registry before the next date i.e. 12th February 2021. In the said order dated

22nd January 2021, it is stated that `as per the cause title, the respondent No.

3 has already died and therefore, the present writ petition against him stands

abated'. Thereafter, the matter came up before this Court on 18 th June

2021. It appears that the petitioner had served the respondent No. 2 by

private notice and had filed an affidavit to that effect, however, as far as

Court notice is concerned, the office noting showed that, `notice issued to

respondent No. 2 is not yet received back duly served or unserved.' In view

thereof, again fresh notice was issued to respondent no. 2, returnable on 30 th

June 2021. Hamdast was permitted. It appears from the office noting

dated 15th July 2021 that notice issued to respondent No. 2 was duly served.

As far as private notice was concerned, an additional affidavit of service

was filed by the petitioner's advocate on 19th June 2021 stating that the

respondent No. 2 `refused to accept notice'. Despite service, none appeared

for the respondent No. 2.

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            5           When the aforesaid petition came up before this Court, again

on 4th August 2021, it was noted in the order that despite notice, none

appears for respondent No. 2. Since the aforesaid petition was to be finally

decided, notice for final disposal was issued to the respondent No. 2,

returnable on 11th August 2021. The advocate for the petitioner was

directed to serve the respondent No. 2 by private notice and file affidavit of

service. Notice was to indicate that an endeavour shall be made to dispose

of the petition finally at the stage of admission, even if none appears for the

said respondent. Learned A.P.P also assured to inform the respondent No. 2

through the concerned Officer of the concerned Police Station of the next

date and file a report of service. Accordingly, the matter was adjourned to

11th August 2021. On 11th August 2021, office note showed that due to short

time, notice could not be served and hence returnable date was extended to

23rd August 2021. Hamdast was permitted. As far as private notice was

concerned, an affidavit of service was filed stating that the respondent No.

2 was served. Accordingly, matter was adjourned to 23 rd August 2021.

Today, when the petition was called out, learned A.P.P informs that the

concerned Officer has informed the respondent No. 2 of today's date.

Statement accepted. Despite several notices, none appears for respondent

No. 2. Hence, petition is taken up for final disposal.

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            6            Learned counsel for the petitioner submits that the petitioner is

the owner of the said vehicle. Learned counsel relied on the documents i.e.

the registration certificate, insurance of the vehicle, and other documents, to

show the ownership of the vehicle of the petitioner. He further submits that

admittedly, the petitioner is not an accused in the case i.e. C.R. No.

246/2018 registered with the Shahupuri Police Station in connection with

which the said vehicle was seized by the police. He further submits that the

observations of the learned Judge in the impugned order, in particular, para

6 that the petitioner is not the real owner of the muddemal vehicle and that

one Shahanoor Mujawar is the owner of the vehicle, is contrary to the

documents on record. Learned counsel for the petitioner submits that the

petitioner had taken a loan from a Finance Company and had purchased the

said vehicle and that till date, the petitioner has been repaying the loan for

the said vehicle. Learned counsel for the petitioner submits that the

petitioner is ready to produce the original documents i.e. the registration

certificate, insurance papers with respect to the said vehicle before the trial

Court at the time of release of the vehicle.

7 Learned A.P.P does not dispute the fact that the petitioner is not

arraigned as an accused in C.R. No. 246/2018 registered with the Shahupuri

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Police Station. He also does not dispute the fact that the petitioner is the

owner of the Audi Car and that the documents show the ownership of the

petitioner.

8 Perused the papers. On 30th April 2018, an FIR bearing C.R.

No. 246/2018 came to be registered with the Shahupuri Police Station,

Kolhapur as against one Rajendra Nerlekar i.e. respondent No. 2 and others

(not the petitioner) for the offences punishable under Sections 419, 420,

406, 468, 120-B r/w 34 of the Indian Penal Code; Section 3 of the

Maharashtra Protection of Interest of Depositors (In Financial

Establishments) Act; Sections 4 and 5 of the Prize, Chits and Money

Circulation Scheme (Banning) Act and Sections 66-A and 66-D of the

Information Technology Act. Respondent No. 2-Rajendra Nerlekar

(original accused No.1) was arrested on the very same day i.e. on 30 th April

2018.

9 During the course of investigation, the police seized the subject

Audi Car, as the said car, according to the prosecution was used in the

commission of the offence i.e. for collection of monies from various

investors. According to the learned A.P.P, on 9 th February 2018, the

petitioner had entered into an agreement with the accused No. 1-Rajendra

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with respect to the said vehicle and that the said vehicle was agreed to be

sold for Rs. 49,00,000/-, out of which, the petitioner allegedly received

Rs. 25,00,000/- on 10th January 2020, as an advance amount. It is the

prosecution case that the said amount of Rs. 25,00,000/- so received by the

petitioner from the accused No. 1-Rajendra was from the misappropriated

amount received by the accused No. 1-Rajendra and others.

10 It appears that the vehicle was seized from the

garage/workshop where the said vehicle was allegedly given by the accused

No.1-Rajendra for servicing/repairs. A perusal of the impugned order

shows that the learned Judge has observed that the petitioner is not the real

owner of the muddemal car and that the real owner was one Shahanoor

Mujawar. On the contrary, the documents on record show that the vehicle

in question stands in the name of the petitioner till date. Learned A.P.P also

does not dispute the same. It also appears that the loan amount is being

paid by the petitioner to the Finance Company. The said observation in the

impugned order thus appears to be erroneous. Admittedly, the petitioner is

not involved in the C.R. lodged as against the accused No.1-Rajendra. The

vehicle is lying in the police station since it was seized on 21 st August 2018,

in an idle condition. In the circumstances, considering the aforesaid, there

is no impediment in allowing the petition and in granting interim custody of

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the vehicle to the petitioner, pending the final disposal of the trial i.e. C.R.

No. 246/2018, on certain terms and conditions.

11 Accordingly, the petition is allowed on the following terms and

conditions :

ORDER

(i) The impugned order dated 24th October 2019 passed by

the learned Additional Sessions Judge, Kolhapur, below Exhibit 28

in MPID Case No. 1/2018 is quashed and set-aside;

(ii) The vehicle i.e. Audi A-6 35 TDI Limozin bearing registration

No. MH-09-EK-5083 be released in favour of the petitioner, as an

interim measure, pending the final disposal of the case by the trial

Court;

(iii) The petitioner, before release of the vehicle, shall produce the

original documents before the trial Court i.e. original RCC, etc. for

verification of the same;

(iv) The petitioner, before the release of the vehicle, shall file an

undertaking in the trial Court, stating therein that she will not sell or

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create any third party rights with respect to the vehicle, till the trial

in C.R. No. 246/2018 is over or without the permission of the Court;

(v) The petitioner will also undertake to produce the vehicle, if so

necessary, during the trial; and

(vi) The petitioner shall also file an Indemnity Bond in the trial

Court, to the satisfaction of the trial Court, before the release of the

vehicle.

(vii) The Investigating Officer, before handing over the vehicle to

the petitioner, is directed to take photographs of the seized vehicle

at the cost of the petitioner, for placing the same on the record of the

trial Court.

12 Rule is made absolute in the above terms. Petition is disposed

of accordingly.

13 All concerned to act on the authenticated copy of this order.

REVATI MOHITE DERE, J.

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