Bombay High Court
Sanjeev Shankar Avhad vs The State Of Maharashtra And Anr on 2 August, 2021
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
12-wp.2350.2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2350 OF 2021
Sanjeev Shankar Avhad ...Petitioner
Versus
1. State of Maharashtra
2. Darshan Mohan Bhabad ...Respondents
Mr. B. D. Joshi a/w Mr. Virendra V. Pethe, for the Petitioner.
Ms. P. P. Shinde, A.P.P for the Respondent No.1 - State.
Mr. N. S. Mundargi i/b Mr. Veerdhawal Deshmukh, for the Respondent
No.2.
CORAM : REVATI MOHITE DERE, J.
DATE : 2nd AUGUST, 2021
P.C. :
1. Heard learned counsel for the parties.
2. By this petition, the petitioner has impugned the order dated
4th January 2021, passed by the learned Judicial Magistrate First Class,
Manmad, District Nashik, below Cri. M.A. No.221/2020, by which the
learned Magistrate rejected the petitioner's application seeking return of
the seized machineries under Section 457 of the Code of Criminal
Procedure, as well as the common order dated 12th March 2021, passed by
the learned Additional Sessions Judge, Malegaon, Nashik, below Revision
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Application Nos. 02 and 04 of 2021, by which the learned Sessions Judge
dismissed the petitioner's Revision Application No.02 of 2021 seeking
return of the seized machineries and instead allowed the respondent No.2's
Revision Application No.04 of 2021 also seeking return of the seized
machineries, by directing the Investigating Officer or the police station
officer of Manmad City Police Station to hand over the custody of seized
machineries (seized in C.R. No.883 of 2020, registered with the Manmad
City Police Station, Tal. Nandgaon, District Nashik) to the respondent No.2
- Darshan Mohan Bhabad, on certain terms and conditions.
3. Learned Counsel for the petitioner submits that the petitioner is
in the business of road construction and crusher and as such owns several
machineries required for construction of road i.e. compression machine,
crawler loader, breaker pokland etc. He submits that the petitioner from
time to time purchased machineries as required for his road construction
business. According to the learned counsel for the petitioner in May 2019,
the petitioner was doing crushing work in Killing, at Meghalaya. He
submits that as the petitioner being a successful bidder was awarded the
work of Samruddhi Mahamarg at Aurangabad (Vaijapur) and, as such, in
order to complete the said contract of construction of Samruddhi
Mahamarg, the petitioner was required to transport the said machineries,
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which were at Meghalaya. He submits that since Manmad was closer to
Vaijapur then Badlapur and as the petitioner's in-laws were from Manmad,
with whom the petitioner had cordial relations, the petitioner decided to
keep the said machineries brought from Meghalaya at Manmad. He submits
that same was also done to save the transportation charges. According to
the learned counsel for the petitioner, the said machineries were kept near
the house of Mohan Bhabad on 8th January 2020 at about 7:30 a.m. He
submits that when the petitioner was in need of the said machineries which
were to be sent to Aurangabad, the petitioner requested his in-laws to hand
over the said machineries, so that the said machineries could be sent to
Vaijapur for construction of Samruddhi Mahamarg. He submits that the
respondent No.2 and others refused to hand over the said machineries,
leaving no option for the petitioner, but, to approach the police and other
authorities. He submits that the petitioner was constrained to run from pillar
to post for registration of an offence as against the accused persons i.e.
respondent No.2 and others and that eventually in the month of September
2020, FIR was registered with the Manmad City Police Station, as against
respondent No.2 and others. According to the learned counsel for the
petitioner, after registration of the FIR, the petitioner realized that the said
FIR was not registered as per his say, pursuant to which he approached the
Manmad City Police Station. Learned Counsel submits that the petitioner
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on realizing that the police were not recording his supplementary statement,
approached the Superintendent of Police, Nashik Rural, pursuant to which
the petitioner's supplementary statement came to be recorded on 30th
September, 2020, in the office of the Superintendent of Police, Nashik
Rural. In the said supplementary statement, the petitioner has stated that the
alleged agreement shown by the respondent No.2 was forged and that the
signature appearing on the said notarized document/agreement was not that
of the petitioner and as such requested the police to carry out a detailed
investigation. It appears that during the course of investigation only 3
machines were seized. Learned Counsel for the petitioner submits that the
police have now seized some more machines, except the spare parts.
Learned Counsel submits that the petitioner is the lawful owner of the
machineries which were seized and that the learned Sessions Judge ought
not to have relied on the notarized document, which was forged and
fabricated by the respondent No.2. Learned Counsel has tendered a xerox
copy of the Report dated 11th October 2020 of PSI, Manmad Police Station.
The same is taken on record. He submits that the impugned common order
dated 12th March 2021, passed by the learned Additional Sessions Judge,
Malegaon, Nashik, below Revision Application Nos. 02 and 04 of 2021, be
quashed and set aside and the police be directed to hand over the custody of
the seized machineries to the petitioner.
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4. Learned Counsel for the respondent No.2 opposes the petition.
He submits that the respondent No.2 had purchased the said machineries
from the petitioner for a consideration of Rs.42,00,000/- and that there is a
notarized document to that effect. He submits that the respondent No.2 had
paid the petitioner Rs.42,00,000/- in cash, for the said machineries. He
further submits that no interference is warranted in the impugned common
order dated 12th March 2021, passed by the learned Additional Sessions
Judge, Malegaon, Nashik, below Revision Application No.04 of 2021.
5. Perused the papers. It appears that the petitioner is in the
business of road construction and crusher and as such possesses various
machineries required for construction of road i.e. compression machine,
crawler loader, breaker pokland etc. It is the petitioner's case that he had
purchased machinery in May 2019 for doing crushing work at Killing,
Meghalaya. According to the petitioner, as he was a successful bidder and
was awarded the contract of carrying out construction of the Samruddhi
Mahamarg at Aurangabad (Vaijapur), he was required to bring the said
machineries from Meghalaya. It is further the petitioner's case that since
Manmad was close to Vaijapur, than Badlapur and as the petitioner's in-
laws resided in Manmad, with whom he had cordial relations, he decided
to keep the said machineries brought from Meghalaya, at Manmad.
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According to the petitioner, when he was in need of the said machineries,
and the same were to be sent to Aurangabad, he requested the respondent
No.2 and others to hand over the said machineries, as the same were
required at the construction site of Samruddhi Mahamarg. The petitioner
has alleged that the respondent No.2 and others refused to hand over the
said machineries, pursuant to which, he approached the police and other
authorities. It appears that in September 2020, FIR was registered with the
Manmad City Police Station, as against the respondent No.2 and others. It
also appears that subsequently with the interference of the Superintendent of
Police, Nashik Rural, with whom a grievance was made by the petitioner,
the petitioner's supplementary statement was recorded by the police. In the
said supplementary statement recorded, the petitioner has alleged that the
notarized document showing purchase of the machineries by the respondent
No.2 from the petitioner was forged and fabricated. The said notarized
document is on page 103 of the petition i.e. Exhibit - 'C'. It is the
petitioner's case that he has not signed the said notarized document. From
the perusal of the said notarized document, it appears that the stamp paper
was not purchased in the name of the petitioner but in the name of one,
Nandsingh Narayan Singh. From the police report dated 11 th October 2020
of PSI, Ganesh Jambhale, Manmad Police Station, it appears that the
Notary in his statement has stated that the petitioner had not come to sign
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the said document i.e. the Notarized document. Infact, the notary - A. I.
Shaikh has stated that even he has been cheated by the respondent No.2.
The notary has further stated that no document or photo was given as proof
of identity of the petitioner and has further stated that some unknown person
was made to appear before him to sign the said document. It appears that
the petitioner approached the trial Court for return of the 3 machineries
seized by the police. It appears that both, the petitioner as well as the
respondent No.2 filed applications seeking return of the said machineries in
the trial Court under Section 457 of Code of Criminal Procedure. The
learned Judicial Magistrate First Class, Manmad, District Nashik, rejected
both the said applications vide a common order dated 4 th January 2021.
Being aggrieved by the said order, both, the petitioner and the respondent
No.2 filed Revision Applications before the Sessions Court at Malegaon i.e.
the petitioner filed Criminal Revision Application No.02 of 2021 and the
respondent No.2 filed Criminal Revision Application No.04 of 2021. The
learned Additional Sessions Judge was pleased to dismiss the Revision
Application filed by the petitioner and was pleased to allow the Revision
Application filed by the respondent No.2. By the said order passed in
respondent No.2's revision application, the learned Judge directed the
Investigating Officer or the police station officer of Manmad City Police
Station to handover the custody of seized machineries (seized in C.R.
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No.883 of 2020, registered with the Manmad City Police Station, Tal.
Nandgaon, District Nashik) to the respondent No.2.
6. Learned Counsel for the petitioner has annexed to the petition,
the documents by which the petitioner has purchased the said machineries,
of which release has been sought. It also prima facie appears from the
statement of the notary as recorded by the police that even the notary has
been cheated by the respondent No.2, inasmuch as, the petitioner was
impersonated. According to the learned counsel for the respondent No.2,
the respondent No.2 had paid cash of Rs.42,00,000/- to the petitioner, for
purchase of the machineries. How and when payments were made and why
cash amount was paid is not spelt out. Neither are there any bank
statements to show the withdrawal of any amounts and from where such a
huge amount was generated, is not clear. The respondent No.2 is unable to
show payment of Rs.42,00,000/- except bare words of payment having been
made, no supporting document is placed on record to show the same. The
petitioner has placed on record, documents to show that he is the owner of
the seized machineries. The notarized document prima facie appears to be
doubtful. Whether the same was signed by the petitioner and why and
how the respondent No.2 paid Rs.42,00,000/- in cash to the
petitioner, are circumstances which prima facie raise some doubt on the
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alleged transaction of sale of machineries. The petitioner has not been able
to avail of the benefits of the said machineries, since September 2020.
The learned Additional Sessions Judge, Malegaon, whilst allowing the
respondent No.2's revision application has completely overlooked all the
aforesaid factors and as such the impugned order cannot be sustained.
7. Accordingly the following order is passed: -
ORDER
(i) The petition is allowed;
(ii) The impugned order dated 4th January 2021, passed by the learned
Judicial Magistrate First Class, Manmad, District Nashik, below Cri. M.A. No.221/2020, as well as the order dated 12th March 2021, passed by the learned Additional Sessions Judge, Malegaon, Nashik, below Revision Application Nos. 02 and 04 of 2021, are quashed and set aside;
(iii) The interim custody of the machineries, is handed over to the petitioner pending trial on the following terms and conditions:-
(a) The Petitioner shall give an Indemnity/Security Bond of Rs.42,00,000/- (Forty Two Lakhs Rupees Only) in the trial Court before release of the machineries;N. S. Chitnis 9/10 ::: Uploaded on - 18/08/2021 ::: Downloaded on - 24/09/2021 16:04:41 :::
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(b) The petitioner shall not sell/dispose/create any third party rights in the machineries so released, without the permission of the trial Court or till the conclusion of the trial;
(c) On furnishing the Indemnity/Security Bond, the Investigating Officer or the police station officer of Manmad City Police Station to forthwith handover the custody of the seized machineries (seized in C.R. No.883 of 2020, registered with the Manmad City Police Station, Tal. Nandgaon, District Nashik), to the petitioner;
(d) The Investigating Officer is directed to take photographs of the seized machineries at the cost of the petitioner and to place the same on the record of the trial Court.
8. The Petition is disposed of on the aforesaid terms.
9. All concerned to act on the authenticated copy of this order.
REVATI MOHITE DERE, J.
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