Dilip Dhondopant Chintawar And ... vs The State Of Mah. Thr. Pso Ps Local ...
2023 Latest Caselaw 5139 Bom

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           NAGPUR BENCH : NAGPUR.

   CRIMINAL APPLICATION (APL) NO. 1158 OF 2022
                    WITH
    CRIMINAL WRIT PETITION NO. 538 OF 2022

                               **************

   CRIMINAL APPLICATION (APL) NO. 1158 OF 2022

 APPLICANTS                     : 1. Dilip Dhondopant Chintawar, Aged
                                     about 68 years, Occ: Business, R/o.
                                     Main Road Arni Near Bus Stand, Tq.
                                     Arni, Dist. Yavatmal.

                                  2. Ashish Natharao Chakkarwar, Aged
                                     about 47 years, Occ: Business, R/o.
                                     Tilak Ward, Moti Nagar, Pusad, Tq.
                                     Pusad, Dist. Yavatmal.

                                          //VERSUS//

 NON-APPLICANTS : 1. The State of Maharashtra, Through
                     Police Station Officer, Police Station
                     Local Crime Branch, Yavatmal, Tq.
                     and Dist. Yavatmal.

                                  2. Narendra Narayanrao Kherde,
 Deleted as per Court's Order        Assistant Manager, (Marketing) of the
 Dt. 14/12/2022                      Cotton Corporation of India, Branch
                                     Office at Paraskar Tower, Additional
                                     Workshop, Paraskar Motor Bike, First
                                     Floor, Vidya Nagar, Akola.

                                  3. Shri Neeraj Kumar Asst. General
 Added as per Court's Order
 Dt.23.11.2022                       Manager, Cotton Corporation of



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                                   India, Aged: about 39 years, Branch
                                   Office, Paraskar Tower, 1st Floor,
                                   Vidya Nagar, Tah. & Dist. Akola.

**************************************************************
  Mr. S.V. Sirpurkar, Advocate with Mr. S.R. Agrawal, Advocate
  for the Applicants.
  Ms. Mayuri Deshmukh, APP for Non-applicant No.1.
  Mr. S.S. Sohoni, Advocate h/f. Mr. S.V. Sohoni, Advocate for
  Non-applicant No.3.
**************************************************************
                                        WITH
      CRIMINAL WRIT PETITION NO. 538 OF 2022

 PETITIONERS                   : 1. Virendrasingh @ Girendrasingh s/o.
                                    Rohansingh Yadav (Choudhary),
                                    Aged about 47 years, Occ: Business,
                                    R/o. Nougawa, Tq. Baha, Dist. Agra
                                    (U.P.).

                                2. Ashok @ Shrikisan s/o. Bhikamchand
                                   Rathi, Age 62 years, Occ: Business,
                                   R/o. Behind State Bank of India,
                                   Telhara, Tq. Telhara, Dist. Akola.

                                          //VERSUS//

 RESPONDENTS.                  : 1. The State of Maharashtra, through
                                    Police Station Officer, P.S., Pusad
                                    (City), Tq. Pusad, Dist. Yavatmal.

                                2. The Cotton Corporation of India
                                   Ltd., Paraskar Tower, First Floor,
                                   Vidya Nagar, Akola, through its
                                   Branch Manager.




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                               3. Maharashtra State Warehousing
                                  Corporation, Pusad, through its
                                  Branch Superintendent, Pusad, Tq.
                                  Pusad, Dist. Yavatmal.

**************************************************************
  Mr. A.J. Thakkar, Advocate for the Petitioners.
  Ms. Mayuri Deshmukh, APP for Respondent Nos.1 & 3.
  Mr. S.S. Sohoni, Advocate h/f. Mr. S.V. Sohoni, Advocate for
  Respondent No.2.
 **************************************************************

                       CORAM : G. A. SANAP, J.
                       RESERVED ON :     3rd MAY, 2023.
                       PRONOUNCED ON : 7th JUNE, 2023.

JUDGMENT

Rule. Rule made returnable forthwith. Heard finally with

the consent of the learned advocates for the parties.

02] The challenge to the order dated 19th July, 2022 has

been raised in the above two proceedings and therefore, the same

are being disposed of by this common judgment. Applicant Nos.1

and 2 in the Criminal Application No.1158/2022 are the accused

Nos.4 and 5 respectively in the Sessions Trial No.58/2010 and the

petitioner Nos.1 and 2 in Writ Petition No.538/2022 are the

accused Nos.1 and 2 respectively in the supplementary

charge-sheet filed in the abovestated sessions trial.

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03]            The relevant facts are as follows:

Respondent No.2-Cotton Corporation of India (for

short "C.C.I."), a Union Government Undertaking, is mainly

concerned with the purchase of cotton from the farmers at various

stations and places in the State of Maharashtra. In the year 2010,

1412 cotton bales had been stored in the Godown of respondent

No.3-Maharashtra State Warehousing Corporation. The officials of

the C.C.I. noticed that out of 1412 cotton bales, 1212 cotton bales

were missing and 100 cotton bales had been damaged. It is stated

that the offenders, in order to hide the misappropriation of the

cotton bales, set on fire the cotton bales. It is stated that the offence

of misappropriation of the cotton bales has been prima facie made

out. The accused persons for the purpose of misappropriation of

the cotton bales, created false and fabricated documents. 200

cotton bales were set on fire with an intention to cover up the

misappropriation. On 8th May, 2010, a report was lodged at Pusad

Police Station. On the basis of the report lodged by the officials of

C.C.I., a crime bearing No.117/2010 came to be registered against

the known and unknown accused for the offences punishable

under Sections 120(B), 201, 406, 408, 420, 427, 436, 468, 469,

471, 109, 403, 414, 411 read with Section 34 of the Indian Penal

Code, 1860 (for short "IPC"). The investigation in the crime

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revealed that some of the officials of the government played a very

vital role in the commission of crime of misappropriation. The

cotton bales were sold in the open market. Some of the accused

sold the cotton bales. Some of the accused purchased the cotton

bales.

04] During the course of investigation, 500 cotton bales

were recovered from the accused No.4 and 400 cotton bales were

recovered from accused No.5. Petitioner No.1 in Writ Petition

No.538/2022 had sold 200 cotton bales. Rs.25,00,000/- came to

be seized from him during the course of investigation. 100 cotton

bales were sold by the petitioner No.2. The amount of

Rs.12,49,000/- came to be recovered from him. The learned

Additional Sessions Judge, Pusad by his order dated 29 th August,

2012 granted permission to the C.C.I. to sell 900 cotton bales

seized in the crime. 900 cotton bales were sold and the sale proceed

of Rs.1,50,00,000/- was deposited in the Court. The Court further

directed the deposit of the said amount in the State Bank of India

in fixed deposit. Similarly, the amount of 300 cotton bales

recovered from the petitioner Nos.1 and 2 in the sum of

Rs.25,00,000/- + Rs.12,49,000/- = Rs.37,49,000/- is also invested

in the State Bank of India, Pusad Branch in fixed deposit.

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05]            The C.C.I. on 5th December, 2019 made an application

at Exh.357 in Sessions Trial No.58/2001 and sought permission

for disbursement of the entire amount with interest to the C.C.I. It

was the contention of the C.C.I. that the amount deposited in

terms of the order of the Court is the sale proceeds of cotton bales,

involved in the commission of crime. The trial is pending since

2010. The C.C.I. being a Government of India Undertaking has to

discharge its obligation towards farmers. The main object of C.C.I.

behind the purchase of cotton from the farmers is to provide

minimum support price every year to the farmers. The C.C.I. is

required to borrow money from various nationalized banks for

managing its affairs and as such is required to pay higher rate of

interest. The C.C.I. is entitled to get the amount deposited in the

bank. The rate of interest on the FDR is lesser than the interest

paid for the loan taken by the C.C.I. The amount in this case is

huge. The C.C.I. is incurring day-to-day financial loss. It has been

causing loss to the public exchequer. The C.C.I., therefore, prayed

that subject to suitable conditions the directions be given to the

bank to disburse the amount to C.C.I.

06] The accused Nos.4 and 5 filed reply to this application.

According to them, 900 cotton bales were exclusively owned by

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them. The case of prosecution against them is false and frivolous. It

is stated that accused Nos.4 and 5 being the lawful owners of 900

cotton bales, are entitled to get the amount of sale proceeds. It is

stated that no case has been made out to grant such permission.

Grant of such permission will create hardship to the accused

persons.

07] The accused Nos.2 and 6 also filed reply. They opposed

the application. According to them, the amount has been kept in

safe custody of the bank. Considering the nature of the allegations

and the evidence on record, the C.C.I. is not entitled to get the

amount.

08] It is necessary to state that when the application at

Exh.357 was made by the C.C.I. on 18 th February, 2020, the

petitioner Nos.1 and 2 in Writ Petition No.538/2022 were not

part of the sessions trial, pending before the learned Additional

Sessions Judge, Pusad. The impugned order was passed on 19 th

July, 2022. After conducting further investigation under Section

173 sub-section 8 of the Cr.PC, supplementary charge-sheet was

filed against them on 29th January, 2020 in the Court of

Magistrate. The learned Magistrate vide order dated 8th August,

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2022 committed the said supplementary charge-sheet to the

learned Additional Sessions Judge. The said supplementary charge-

sheet on committal is a part of Sessions Trial No.58/2010.

09] Grievance has been made by the accused Nos.4 and 5.

The main grievance of the accused Nos.4 and 5 is that they are the

owners of 900 cotton bales and therefore, the order passed by the

learned Additional Sessions Judge allowing the C.C.I. to withdraw

the said amount is contrary to law. It is further contended that the

order would cause prejudice and hardship to the accused Nos.4

and 5. As far as the petitioner Nos.1 and 2 in Writ Petition

538/2022 are concerned, it is their case that they on their own

deposited the amount. The amount was not seized from them.

Similarly, they were not heard before passing the order dated 19 th

July, 2022. According to them, they have not committed any

offence. A false prosecution has been launched against them.

10] I have heard learned advocates for the parties. Perused

the record and proceedings.

11] Mr. S.V. Sirpurkar, learned advocate appearing for the

applicants-accused Nos.4 and 5 in Criminal Application

No.1158/2022 submitted that the learned Additional Sessions

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Judge instead of conducting the trial expeditiously, has passed an

order which is contrary to the law. Learned advocate submitted that

the Court would be required to decide the rival claims put-forth by

the parties at the time of final adjudication of the sessions trial.

Learned advocate submitted that in the fact and circumstances, the

learned Additional Sessions Judge was not right in granting the

application made by the C.C.I. Learned advocate submitted that

the accused Nos.4 and 5 being the owners of 900 cotton bales

would be deprived of the said amount.

12] Mr. A.J. Thakkar, learned advocate appearing for the

petitioners in Writ Petition No.538/2022 submitted that the

amount was not recovered or seized from them during the course

of investigation. Learned advocate submitted that seizure receipts

of the said amount relied upon by the prosecution have been

created to make a show of the lawful seizure of the amount from

the petitioner Nos.1 and 2. Learned advocate further submitted

that before passing the order, the accused were not heard. Learned

advocate, therefore, submitted that the order passed by the learned

Additional Sessions Judge, without granting them an opportunity

of hearing, is not sustainable.

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13] Mr. Sohoni, learned advocate for the C.C.I. submitted

that the learned Additional Sessions Judge has imposed appropriate

conditions to secure the interest of the accused persons. Learned

advocate submitted that the C.C.I. is a Government of India

Undertaking. Learned advocate pointed out that in terms of the

order passed by the learned Additional Sessions Judge, the official

of the C.C.I. would be required to furnish an undertaking for

return of the amount as and when ordered by the Court. Learned

advocate, therefore, submitted that the apprehension put-forth by

the accused is not well-founded. Learned advocate submitted that

the amount involved in this crime is public money and therefore, it

has to be used for the public purpose. Learned advocate submitted

that the C.C.I. being the informant in the case have no control over

the progress of the trial. Learned advocate pointed out that in the

trial till date, charge has not been framed. Learned advocate,

therefore, submitted that the C.C.I. cannot be deprived of the

benefit of its money. Learned advocate further submitted that the

accused persons were expected to insist for expeditious hearing of

the trial. Learned advocate pointed out that this silence on the part

of the accused has been causing loss to the C.C.I.

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14] I have perused the order passed by the learned

Additional Sessions Judge, Pusad. The learned Additional Sessions

Judge, Pusad on appreciation of the facts stated in the application,

found that the C.C.I. cannot be denied the benefit of its money. It

is undisputed that the petitioner Nos.1 and 2, who are the accused

Nos.1 and 2 in the supplementary charge-sheet, are facing serious

charge in this case with the remaining accused. The accused Nos.4

and 5 from whom 900 cotton bales were seized are also facing the

serious charges. The government officials were involved in the

misappropriation. It is the case of prosecution that all the accused

in furtherance of the common intention misappropriated the

cotton bales. It is the case of prosecution that 200 cotton bales had

been set on fire and destroyed to create evidence to hide the

misappropriation. Thorough investigation has been conducted.

Sufficient material was found during the course of investigation

against the accused and therefore, they have been made to face the

criminal prosecution in the Court of Law.

15] 900 cotton bales were sold during the pendency of the

prosecution. As per the order of the learned Additional Sessions

Judge, Pusad, the sale proceeds of the same has been deposited in

the bank. Similarly, the accused Nos.1 and 2 in the supplementary

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charge-sheet, the petitioners in Writ Petition No.538/2022, have

also been arrayed as accused. During the course of investigation,

their complicity in the commission of crime was revealed. The

accused No.1 in the supplementary charge-sheet was concerned

with the sale of 200 cotton bales and the accused No.2 in the

supplementary charge-sheet was concerned with the sale of 100

cotton bales. The record reveals that they had deposited the price

of those cotton bales. The said amount was seized by the

Investigating Officer in the crime. The Court on reporting the

seizure of the said amount, directed the investment of the said

amount during the pendency of the trial in the State Bank of India,

Branch Pusad.

16] It is to be noted that the C.C.I. cannot be blamed for

delay in disposal of the trial. In this case, the prosecution, the

accused and the learned Judge, who is seized with the trial, can be

held directly responsible for the delay of the trial. The prosecution

and the accused did not make any application before the learned

Additional Sessions Judge seeking expeditious disposal of the trial.

Similarly, the learned Additional Sessions Judge before whom the

matter is pending did not show the required promptness and

seriousness. It is, therefore, seen that because of this delay, the

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C.C.I., who is otherwise entitled to get the amount, is denied the

benefit of the same. The amount involved in the crime is public

money. The C.C.I. being a Government Undertaking and involved

in the purchase of the cotton from the farmers, is the custodian of

the public money. The amount of sale of cotton bales in this case is

lying in the bank. The amount will carry some interest. The Court

at the time of adjudication of the matter will have to pass an order

with regard to the disposal of the money. It is seen that the accused

persons did not make any application for payment of money to

them. It is their contention that they are the exclusive owners of

the cotton bales. Learned Additional Sessions Judge, Pusad has

taken all the facts into consideration and in his discretion allowed

the application. The learned Judge, considering the seriousness of

the matter, imposed appropriate conditions.

17] The question that needs to be addressed is whether this

order is in any manner is prejudicial to the interest of the accused

persons. In my view, the order will not cause any prejudice to the

accused persons. The C.C.I. is a Government of India

Undertaking. The Court has directed the responsible officer of

C.C.I. to furnish an undertaking for return of the money as and

when ordered by the Court. The submission of an undertaking is a

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condition precedent for release of the money to the C.C.I. In my

opinion, the view taken by the learned Judge that the C.C.I. being

a public undertaking concerned with the public money cannot be

denied the benefit of the money, is just and reasonable. I, therefore,

do not find any substance in the application as well as in the

petition.

18] The grievance made by the petitioners that they were not

heard is ill-founded, because by that time, they were not the

accused before the learned Additional Sessions Judge. It is seen that

the application made by the petitioner No.2 for release of the

amount seized from him, was rejected by the learned Additional

Sessions Judge by his order dated 27 th June, 2016. The grievance

made by them that the amount deposited by them is shown to have

been seized during the course of investigation under the seizure

memos can be taken care of at the stage of final adjudication of the

matter. The disbursal of the amount to the C.C.I. during the

pendency of trial does not mean that the Court has finally

adjudicated upon the issue and found the C.C.I. entitled to get the

amount. The Court would be required to adjudicate upon this issue

and entitlement of the money either by the informant or by the

concerned accused persons. Therefore, I do not see any substance

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in the grievance made by the applicants as well as by the

petitioners.

19] During the pendency of the proceeding, I have called the

report of the learned Judge to place on record the progress made in

the trial. The progress report placed on record initially by the

in-charge District Judge-2 and Additional Sessions Judge, Pusad

dated 3rd February 2023 and 16th February, 2023 is not satisfactory.

It appears that the District Judge-2 and Additional Sessions Judge,

Pusad has not taken steps to dispose of this more than 10 years old

matter on priority basis. The explanation sought to be placed on

record is nothing but an attempt to hide the failure to dispose of

the matter. It is not acceptable.

20] The learned District Judge-2 and Additional Sessions

Judge, Pusad in the facts and circumstances is directed to dispose of

this trial within six months from the date of the receipt of this

order. The learned Judge shall conduct this trial on day-to-day

basis. The accused persons and the learned Prosecutor in-charge of

the case shall extend the fullest cooperation to the learned Judge. If

the learned Judge finds that there is no cooperation from the

accused, the learned Judge can explore the possibility of cancelling

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the bail granted to them. Similarly, when there is no progress by

the prosecution, the learned Judge can explore the possibility of

saddling the heavy costs. The learned Judge shall ensure that

through the process of the Court, the presence of all the accused be

secured. The charge in the case be framed at the earliest. It is made

clear that failure to comply with this order by all concerned would

be viewed seriously.

21] In view of the above, the writ petition and the

application stand dismissed. Rule stands discharged.

(G. A. SANAP, J.)

Vijay