Karnataka High Court
Xavier V G vs K V Kunhikannan on 3 January, 2023
Bench: R. Nataraj
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CRL.RP No. 816 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL REVISION PETITION NO. 816 OF 2018
BETWEEN:
XAVIER V.G.
S/O LATE MR. V.P. GEORGE,
AGED ABOUT 43 YEARS,
R/AT NO.18-2-16/7,
BEHIND MOTI MAHAL,
ATTAVARA, MANGALORE.
...PETITIONER
(BY SRI. SACHIN B.S., ADVOCATE)
AND:
1. K.V. KUNHIKANNAN
S/O LATE K.V. RAMAN,
AGED ABOUT 63 YEARS,
PROPRIETOR, BINDU JEWELRY,
COURT ROAD, KASARAGOD,
KERALA STATE-671121.
Digitally 2. THE STATE
signed by
SUMA REP. BY THE SUB INSPECTOR OF POLICE,
Location: SOUTH POLICE STATION,
HIGH MANGALORE-575001.
COURT OF
KARNATAKA
...RESPONDENTS
(BY SRI. K. RANJAN KUMAR, ADVOCATE FOR RESPONDENT NO.1;
SRI. KRISHNA KUMAR K.K., HIGH COURT GOVERNMENT PLEADER
FOR RESPONDENT NO.2)
-2-
CRL.RP No. 816 of 2018
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 13.04.2018
IN CRL.A. NO.251/2013, ON THE FILE OF THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE AND
IMPUGNED ORDER DATED 18.07.2013, PASSED IN
CRL.MISC.NO.6/2008 ON THE FILE OF THE 1ST ADDITIONAL SENIOR
CIVIL JUDGE AND CJM., MANGALORE, CONSEQUENTLY ALLOW
CRL.A.NO.251/2013.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner has filed this revision petition challenging
the correctness of the order dated 18.07.2013 passed by the I
Additional Senior Civil Judge and CJM., Mangalore, (henceforth
referred to as 'the Trial Court') in Crl. Misc. Case No.6/2008 by
which, an application filed by the respondent No.1 herein under
Section 452 of the Code of Criminal Procedure, 1973 (for short,
'the Cr.P.C.') was entertained and M.O. Nos.1 and 2 were
ordered to be released in favour of the respondent No.1 herein.
The petitioner has also challenged the Judgment dated
13.04.2018 passed by the II Additional District and Sessions
CRL.RP No. 816 of 2018
Judge, D.K., Mangaluru, (for short, 'the Sessions Court') in
Criminal Appeal No.251/2013.
2. The petitioner lodged a complaint on 02.07.2005
alleging that some persons had committed theft of gold
ornaments from his house. Based on this, the jurisdictional
Police registered Crime No.235/2005. A chargesheet was filed
for offences punishable under Sections 457 and 380 of the
Indian Penal Code, 1860 (for short, 'the IPC').
3. Based on the statement of the accused, certain gold
ornaments were seized from the custody of respondent No.1
herein. After the trial, the Trial Court acquitted the accused of
the said offences. Consequent thereto, the petitioner herein
and respondent No.1 herein filed separate applications seeking
release of the material objects that were seized by the
jurisdictional Police. The Trial Court after considering the
material on record, held that the respondent No.1 herein is
entitled to the custody of M.O. Nos.1 and 2 while the petitioner
herein was entitled to the custody of M.O. No.3.
CRL.RP No. 816 of 2018
4. Being aggrieved by the said order, the petitioner
herein filed Criminal Appeal No.251/2013 which was dismissed
by the Sessions Court.
5. Being aggrieved by the same, the present revision
petition is filed.
6. The learned counsel for the revision petitioner
submitted that in the First Information lodged by the petitioner,
he had specifically described the ornaments that the accused
had stolen. He submitted that the ornaments were recovered
from the respondent No.1 based on the statement of the
accused. He submitted that the Trial Court without considering
the fact that M.O. Nos.1 and 2 corresponded to the ornaments
that were described in the complaint, rejected the application
filed by the petitioner for custody of M.O. Nos.1 and 2.
7. Per contra, the learned counsel for respondent No.1
submitted that M.O. Nos.1 to 3 were seized from the custody of
respondent No.1 and the Trial Court after verifying that M.O.
No.3 was embossed with the name of the wife of the petitioner,
had released it to the petitioner, while M.O. Nos.1 and 2 did not
correspond to the description given by the petitioner in the
CRL.RP No. 816 of 2018
complaint. He, therefore, submitted that since M.O. Nos.1 and
2 were seized from the custody of respondent No.1, the Trial
Court as well as the First Appellate Court were justified in
holding that respondent No.1 is entitled to the custody of M.O.
Nos.1 and 2.
8. I have considered the submissions made by the
learned counsel for the petitioner and the learned counsel for
respondent No.1.
9. The Trial Court considered the claim of the
petitioner, which was based on an estimate (Ex.P6) prepared
by PW.3 in respect of a gold chain, a black bead chain and a
golden ring. The Trial Court held that this estimate was not
addressed to the petitioner herein and therefore, it was
inconsequential. Further, it held that the description of the gold
ornaments belonging to the petitioner as mentioned in the
complaint at Ex.P1 did not correspond with M.O. Nos.1 and 2.
Consequently, the Trial Court released M.O. No.3 to the
petitioner and M.O Nos.1 and 2 to respondent No.1.
10. A perusal of the complaint, which is enclosed with
FIR - Ex.P4, lodged by the petitioner discloses the details of the
CRL.RP No. 816 of 2018
gold ornaments that the accused had stolen and same are as
under:
"1) ¸ÀĪÀiÁgÀÄ 6 ¥ÀªÀ£ï vÀÆPÀzÀ §AUÁgÀzÀ vÁ½¸ÀgÀ-1. EzÀgÀ°è vÁ½
EzÀÄÝ, ¸ÀtÚ PÁæ¸ï EgÀÄvÀÛzÉ.
2) §AUÁgÀzÀ gÉÆÃ¥ï ZÉÊ£ï MAzÀÄ. EzÀgÀ°è PÁæ¸ï EzÀÄÝ, ¸ÀĪÀiÁgÀÄ 5
¥ÀªÀ£ï vÀÆPÀ EgÀÄvÀÛzÉ.
3) §AUÁgÀzÀ GAUÀÄgÀªÉÇAzÀÄ. EzÀgÀ°è "RAGHIN" JAzÀÄ
§gÉ¢gÀÄvÀÛzÉ. EzÀgÀ vÀÆPÀ ¸ÀĪÀiÁgÀÄ 1½ ¥ÀªÀ£ï.
4) MAzÀÄ £ÀªÀgÀvÀßzÀ PÀ®ÄèUÀ½gÀĪÀ GAUÀÄgÀ MAzÀÄ. EzÀÄ ¸ÀĪÀiÁgÀÄ 1½
¥ÀªÀ£ï vÀÆPÀzÁÝVzÉ."
11. Admittedly, M.O. No.1 is a black bead chain while
M.O. No.2 is a gold chain which does not have a cross. Even
otherwise, complaint enclosed with FIR - Ex.P4 was not in
respect of a black bead chain. Therefore, M.O. Nos.1 and 2 did
not correspond to the gold ornaments that were stolen from the
house of the petitioner. It is not much in dispute that M.O.
Nos.1 to 3 were seized from the custody of respondent No.1.
Therefore, the Trial Court was justified in rejecting the
application of the petitioner herein for custody of M.O. Nos.1
and 2. However, since M.O. Nos.1 and 2 were seized from the
CRL.RP No. 816 of 2018
custody of the respondent No.1, the Trial Court as well as the
First Appellate Court were justified in granting custody of the
said M.O. Nos.1 and 2 to the respondent No.1 herein. There is
no illegality in the impugned order passed by the Trial Court as
well as the judgment of the Appellate Court warranting
interference by this Court.
Hence, this revision petition lacks merits and is
dismissed.
Sd/-
JUDGE
SMA
