Bombay High Court
M/S. J.B.D. Finance And ... vs The State Of Maharashtra And Anr on 16 November, 2021
Bench: S. K. Shinde
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Writ Petition No. 6107 / 2019
Alongwith
Writ Petition No. 6104 / 2019
and
Writ Petition No. 6105 / 2019
and
Writ Petition No. 6106 / 2019
1. M/s. J.B.D. Finance and Investment Ltd.
Having its Office at B-41, Boolani Estate,
Opp. City Mall, New Link Road, Veera Desai
Road, Andheri (West), Mumbai - 400 053.
Through Director Dinesh Singh Lakra
2. J.B.D. Marketing
Having its Office at B-41, Boolani Estate,
Opp. City Mall, New Link Road, Veera Desai
Road, Andheri (West), Mumbai - 400 053.
Through Director Dinesh Singh Lakra
(Registered Office : Khasra No.109/110,
Rajinder Lakra Marg, Village & Post Office
Mundka, New Delhi - 400 041.
3. Mr. Dinesh Singh Lakra
Adult, Indian Inhabitant, aged about 44 years,
Permanent resident of WZ, Galli No.1,
Room No. 68, 3rd Floor, Gurunanak Tilak Nagar,
Delhi. Presently at Mumbai.
.. Petitioners
1/15
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
Versus.
1. State of Maharashtra
2. Sampark Marketing Advertising Pvt. Ltd.
A Company incorporated under the Provisions of
Companies Act, having its Office situated
at Ama House, 2nd Floor, Near Strand
Cinema, Colaba, Mumbai - 400 005.
.. Respondents
****
Mr. Ashok M. Saraogi, Advocate for Petitioners in All Matters.
Mr. A.R. Patil, APP for State/ Respondent No.1.
****
CORAM : SANDEEP K. SHINDE J.
RESERVED ON : 07th SEPTEMBER, 2021.
PRONOUNCED ON : 16th NOVEMBER, 2021.
Judgment : -
1. Rule.
2. Rule made returnable forthwith. Heard, finally with the
consent of the parties.
3. These petitions under Article 227 of the Constitution of India
read with Section 482 of the Code of Criminal Procedure, 1973, are
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
directed against the order dated 21 st November, 2019 (a common
order) by which the Petitioners' application, for release and the
restoration of property attached under Section 83 of the Code of
Criminal Procedure, 1973, has been rejected by the Metropolitan
Magistrate 28th Court at Esplanade Mumbai.
4. Background facts are ;
The Respondent No.2 - M/s Sampark Marketing Advertising
Solution Pvt. Ltd. filed complaints under Section 138 of the
Negotiable Instruments Act against the Petitioner Company, being
Case Nos. CC/447/SS/2005; CC/448/SS/2005; CC/449/SS/2005;
CC/450/SS/2005; CC/451/SS/2005; CC/27/SS/2013. In these complaints
proclamation was issued against Dinesh Singh Lakra, director of the
Petitioner Company, followed by order attachment under Section 83
of Cr.P.C. of the property, being Flat No.302, at Golden Empire
Co.Op. Housing Society Ltd., Mira Road, Dist. Thane ('Property' for
short). Pursuant thereto, on 28th January, 2008, a District Collector,
Thane was authorized to attach the property in the manner specified
in Clause (a) or Clause (b) or both of Subsection (4) of Section 83 of
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
the Cr.P.C. The order was acted upon by taking possession of the
property. Be that as it may, pending attachment, the Respondent
No.2 (Complainant) instituted a summary suit in the City Civil Court,
Mumbai against the Petitioners, seeking money decree in the sum of
Rs. 45,74,716/-. Pending suit and the attachment (under Section 83
of Cr.P.C.), accused - Dinesh Singh Lakra executed a registered
agreement in respect of the said property in favour of his wife Mrs.
Sonia Rajpal Singh. Whereafter Mrs. Sonia Sing moved an
application, seeking release and restoration of the said property.
Her application was rejected and the revision against that order also
met with the same fate. Both the Courts concurrently held that Mrs.
Sonia Singh had no locus to seek release and restoration of the said
property. It may be stated that in the summary suit instituted by
the Respondent No.2 in Notice of Motion No. 3537/2012, said
property was attached in before judgment.
5. Pending Civil and Criminal Proceedings, Complainant and the
Petitioners compromised the dispute. Whereafter, the Complainant
sought permission to withdraw the complaints on the ground that the
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
accused have settled all matters including the proceedings in the
summary suit instituted by him. The learned Metropolitan Magistrate
upon verifying the applications permitted the Complainant to
withdraw the complaints and disposed of the same. In consequence,
vide order dated 19th October, 2019, Petitioners-accused were
acquitted of the offence punishable under Section 138 of the
Negotiable Instruments Act in all aforesaid complaints. Well before
withdrawing the complaints, the Complainant and the Petitioners had
also filed the consent terms in the summary suit on 10 th October,
2019. Whereafter, the attachment was lifted by the City Civil Court
and directed the Registrar, to hand over possession of the said
property to Dinesh Lakra, director of the Petitioners-Company.
6. In the backdrop of aforestated facts, the Petitioners herein,
moved an application under Section 85 of the Cr. P. C. in
CC/447/SS/2005; CC/448/SS/2005; CC/449/SS/2005; CC/450/SS/2005;
CC/451/SS/2005; CC/27/SS/2013, to lift the attachment, release and
restore the said property to them. The Complainant (Respondent No.
2 herein), recorded his no objection for releasing and restoring the
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
said property to the Petitioners. These applications were heard and
rejected by order dated 21st November, 2019 on the following
grounds;
(i) On previous occasion, identical application was rejected and the
order was upheld in revision.
(ii) the Court has no power to review earlier order.
(iii) the Court has no jurisdiction to restore the property after lapse
of two years.
7. Feeling aggrieved by the order dated 21st November, 2019,
these petitions are preferred under Article 227 of the Constitution of
India read with Section 482 of Cr.P.C.
8. Heard. Mr. Saraogi, learned Counsel for the Petitioners and Mr.
A.R. Patil, learned Prosecutor for the State.
9. It may be stated that besides the challenge to order dated 21 st
November, 2019 (impugned order), Petitioners are also seeking
directions to Collector, Thane to remove seal put on the flat no. 302
situated at Golden Empire Co.Op. Housing Society Ltd., Mira Road,
Dist. Thane (property in question) and directions to hand over the
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
possession to them. Although these petitions were filed in 2019, the
State has neither filed the reply, nor informed the Court, about the
status of the said property. In the circumstances, Mr. Patil and
learned Prosecutor, when called upon to apprise as to State of
property in question, Mr. Patil informed as under;
"that property in question is under lock and key since 2008. It was
under owned by Ms. Soniya Singh. She died in pandemic. Her
husband Dinesh Lakra (Petitioner No.2) stays in the flat No.202 on
rental basis in the same building. It means property has not been
disposed of by the State and it is in their possession."
10. In so far as the impugned order is concerned, it may be stated
that pending suit and attachment under Section 83 of Cr.P.C.,
Petitioner No.2 (accused) Dinesh Lakra sold the property to his wife
Ms. Soniya Rajpal Singh. Thereafter Ms. Soniya moved an
application seeking release and restoration of the property. Soniyas'
application was rejected by the learned Magistrate on 8 th October,
2013. This order was confirmed in Revision Application
No.1827/2013. Both the Courts declined to entertain the application
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
of Soniya on the ground that agreement for sale executed did not
create interest in her favour and thus she had proved her title in the
said property. Additionally both the Courts held that Soniya had no
locus to file the application. It may noted that Soniyas' claim and
objection to the attachment was under Section 84 of Cr.P.C. and not
under Section 85. Therfore it is to be stated that Petitioners had not
moved the Court earlier but for the first time, they moved an
application on 22nd October, 2019 under Section 85 of Cr.P.C. In
view of this, one of the reason for rejecting the application of the
Petitioners, that earlier application was rejected and order passed
therein, cannot be reviewed was incorrect. The next ground for
rejection was that the Petitioners did not approach the Court for
release and restoration of the said property, within two years from
the date of attachment.
11. In the backdrop of the facts aforesaid, the question for the
determination is;
" whether the right of the Petitioners to seek release of property
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
under Section 85 of Cr.P.C. beyond two years from the date of its
attachment stands extinguished?"
12. Section 85 of Cr.P.C. reads as under;
" Release, sale and restoration of attached property.
(1) If the proclaimed person appears within the time
specified in the proclamation, the Court shall make an
order releasing the property from the attachment.
(2) If the proclaimed person does not appear within the
time specified in the proclamation, the property under the
attachment shall be at the disposal of the State
Government; but it shall not be sold until the expiration
of six months from the date of the attachment and until
any claim preferred or objection made under section 84 has
been disposed under that section, unless it is subject to
speedy and natural decay, or the Court considers that the
sale would be for the benefit of the owner; in either of
which cases the Court may cause it to be sold whenever it
thinks fit.
(3) If, within two years from the date of the attachment,
any person whose property is or has been at the disposal
of the State Government, under sub- section (2), appears
voluntarily or is apprehended and brought before the Court
by whose order the property was attached, or the Court to
which such Court is subordinate, and proves to the
satisfaction of such Court that he did not abscond or
conceal himself for the purpose of avoiding execution of
the warrant, and that he had not such notice of the
proclamation as to enable him to attend within the time
specified therein, such property, or, if the same has been
sold, the net proceeds of the sale, or, if part only
thereof has been sold, the net proceeds of the sale and
the residue of the property, shall, after satisfying
therefrom all costs incurred in consequence of the
attachment, be delivered to him."
13. Section 83 of Cr.P.C. empowers the Court, issuing a
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
proclamation under Section 82 to order the attachment of any
property movable or immovable or both belonging to the proclaimed
person. Subsection 4 of Section 83 provides that if property ordered
to be attached is immovable, the attachment be made through
Collector of District, either by taking possession or by appointment of
receiver or by an order in writing prohibiting the payment of rent on
delivery of property to proclaim person or to anyone on his behalf or
by all or any of such methods as the Court thinks fit. Section 84
enables, any person other than the proclaimed person, to make a
claim and objection to the attachment on the ground that claimant
and objector has an interest in such property, and that such interest
is not liable to attachment under Section 83. Such claims and
objections if made are to be inquired into by the Court in which it is
preferred or made. If a claim or objection is disallowed, such a
person has right to institute the suit within the period of one year
from the date of such order to establish his right, which he claims in
respect of the property in dispute and order of attachment shall be
subject to result in such suit. Herein, Soniya had filed an application
purportedly under Section 84 and although her claim and objection
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
to attachment, was not entertained, she did not file the suit to
establish her rights in the property. Be that as it may, under
Section 85(1), if proclaimed person person appears within the time
specified in procolamation order, the Court is empowered to make an
order to release the property from attachment. If proclaimed person
does not appear within the time specified in the proclamation, the
property under the attachment shall be at the disposal of the State of
Government. Yet property shall not be sold until any claim preferred
or objection made under Section 84 has been disposed of under that
Section.
14. The facts in the case are peculiar. Herein, pending attachment
under Section 83 of Cr.P.C.; same property was attached before
judgment in 2008 in the suit instituted by the Complainant. In the
said summary suit, consent terms were filed in October, 2019.
Whereafter on 10th October, 2019, the suit was disposed of and
consent decree was drawn. Whereafter Registrar of City Civil Court
was directed to unseal the property and hand over possession to
Dinesh Singh Lakra, director of the Petitioners-Company. Admittedly,
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
the property in question was under attachment of City Civil Court till
October, 2019, and thus after drawing the consent decree in October,
2019, application was moved by the Petitioners under Section 85 of
Cr.P.C., which they could not have moved in view of order of
attachment passed in Civil Suit.
15. Thus, in consideration of the facts of the case, it may be stated
that the Petitioners were prevented by 'sufficient cause' in pursuing
the remedy under Section 85 of Cr.P.C. These facts were completely
ignored by the learned Metropolitan Magistrate.
16. All the same, the order passed under Section 83 is subject to
Sections 84 and 85 of the code. Section 85(3) empowers the Court
to decide the application on merits. The underlying scheme and
object of attaching property of the absconder is not to punish him,
but to compel his appearance and therefore under Section 85 of
Cr.P.C., Court is empowered to release and restore the attached
property. Thus, although the application is required to be made
within a period of two years from the date of attachment, however if
made after two, that itself shall not preclude the Court from
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
exercising the jurisdiction under Section 85 of Cr.P.C., if reasonable
cause is shown, for not approaching within the given time. If period
of two years envisaged under Section 85(3) is construed literally, it
shall frustrate the object of the attachment. Therefore, in my view,
the Courts are bound to consider the application filed under Section
85(3) on merits by ascertaining, whether notice of proclamation was
properly served on the party and whether application filed beyond
two years prescribed under the statute is explained with reasonable
cause. In the case of K. Govindraj Vs. Subbian and Others, 2017
SCC OnLine Madras 22438, it was held that "the two years period
referred for lifting the attachment cannot be read literally to say the
belated application are not maintainable, even if there is a justifiable
cause for not appearing before the Court or for not seeking relief of
raising the attachment after two years. If the Petitioner makes out a
justifiable cause for filing application after two years of attachment
and able to convince the trial Court that he has not absconded
himself wantonly, then, the Court has every right to consider the
application and lift the attachment. Procedure is hand maid of
justice. The endeavour of the Court should be to render justice by
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
appropriate interpretation of statute. Therefore if the Court finds
that the person could not approached to seek release and restoration
of property within two years due to circumstances beyond his control
then in such a case propriety rights of such person in the property
would not extinguish automatically. Therefore I conclude and hold
thus, Subsection 3 of Section 85 empowers the Court to entertain the
application for release and restoration of the property beyond two
years from the date of attachment, if such a person proves to the
satisfaction of the Court that he was prevented by a sufficient cause,
from making an application for release and restoration of the
property. Thus, to be stated that two years period referred for lifting
the attachment cannot be read literally to say the belated application
is not maintainable, even if there is a justifiable cause for not
seeking release of raising the attachment after two years.
17. In this case, the learned Metropolitan Magistrate did not
consider the circumstances, which prevented the Petitioners for
making the claim under Section 85(3) of Cr.P.C. within a period of
two years. In the circumstances and for the reasons stated, the
4. Cri.WP-6107& 6104 & 6105 & 6106-2019.doc
impugned order dated 21st November, 2019 is quashed and set aside
and the learned Metropolitan Magistrate, 28th Court, Esplanade,
Mumbai, is directed to decide Petitioners' application on merits, in
terms of this judgment.
18. Petitioners shall move an formal application and bring this
order to the notice of the learned Metropolitan Magistrate, whereafter
within twelve weeks, Petitioners' application under Section 85 of
Cr.P.C., shall be decided in accordance with law.
19. Rule is made absolute in the aforesaid terms. All the Writ
Petitions are allowed and disposed of.
(SANDEEP K. SHINDE, J.)
Digitally signed
MOHAMMAD by MOHAMMAD
NAJEEB
NAJEEB MOHAMMAD
MOHAMMAD QAYYUM
QAYYUM Date: 2021.11.17
10:21:24 +0530
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