Allahabad High Court
Renu Gupta And 2 Ors. vs State Of U.P. And 3 Others on 13 December, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 81 Case :- MATTERS UNDER ARTICLE 227 No. - 9658 of 2019 Petitioner :- Renu Gupta And 2 Ors. Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Anupama Tripathi,Rakesh Kumar Tripathi Counsel for Respondent :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Anupama Tripathi, learned counsel for the petitioners and Sri G.P. Singh, learned brief holder for the State.
This Petition has been filed by petitioner with a prayer to stay the effect and operation of orders dated 23.04.2019 and its confirmation order dated 31.08.2019 passed in Criminal Revision No. 147 of 2019 by Additional Session Judge / Special Judge, E.C. Act, District Azamgarh rejecting release application of petitioners.
In the impugned order dated 23.04.2019 passed by Judicial Magistrate, Azamgarh in Crime No. 246 of 2018 under Section 407 I.P.C., P.S. Gambhirpur, District Azamgarh, it is recorded that the petitioners had moved an application mentioning therein that petitioners had lodged separate F.I.Rs. being Crime No. 246 of 2018 under Section 407 I.P.C., P.S. Badrah, District Azamgarh and Crime No. 001 of 2019 under Sections 419 and 420 I.P.C., P.S. Phoolpur, District Varanasi regarding the accused- driver of Truck No. M.H.48J-0565, its owner to the effect that the rice loaded on the said truck belonging to the petitioner was sold by the accused persons on the way instead of reaching the same at destination. Concerning this occurrence, the petitioners got received an amount of Rs. 11,39,265/- at P.S. Gambhirpur while regarding the recovery of the remaining rice, investigation was pending. Earlier petitioner, Renu Gupta had moved an application without mentioning correct facts therein, which led to its rejection, hence, in such a situation, the petitioners were presenting another application. It was prayed by petitioners in the said application that an order is required to be passed by the Court in order to release the amount of Rs. 11,39,265/- in equal shares to the petitioners in respect of this amount which was deposited at P.S., Gambhirpur by way of sale of the said rice. It would come to Rs. 3,79,755/- each. Further it is mentioned in this order that a report was obtained from the P.S. concerned wherein a recommendation was made that the three petitioners may be given the said amount in equal share.
It is further mentioned in the said order that the earlier application of the petitioner, Renu Gupta was rejected on the ground that the amount of rupees which was obtained after sale of the food-grain was loaded upon different trucks, while in the case at hand, case property was rice, regarding which a case was got registered with the allegation of Criminal Breach of trust against the owner as well as driver of the truck being registration no. M.H.48J-0565. In the case at hand, rice was not recovered. As regards recovery of rupees, the said amount related to which case as case property was not clear. It has also been recorded that it is not clear as to whether the recovered money belongs to the petitioners themselves or the same was obtained after sale of the case property (rice) as the same is matter of evidence, and without coming on record, the whole evidence in this regard, the said point cannot be determined and till then there was no justification to release the said property and accordingly, the said application was dismissed. Against the said rejection order, a Revision was preferred by the petitioners being Criminal Revision No. 147 of 2019, which was dismissed vide order dated 31.08.2019 upholding the order of the lower court.
The submission made by learned counsel for the petitioner is that both the orders deserve to be set-aside being erroneous. The petitioners were registered traders of the food-grain and had purchased the food-grains from the local farmers and market and sold it to the traders of other states. There was no dispute in respect of registration of the trade business. They were aggrieved with theft and cheating by the accused / respondent nos. 2 to 4 as they manipulated the document and sold the food-grain to the rice miller called, Kallu Yadav. The cheating with the petitioners took place when they loaded their food-grain on Truck no. M.H.48J-0565 owned by one Raj Hans Yadav @ Pappu Yadav on different dates of the month of November, 2018. They had used wrong number plates over the truck and had hidden the original number. The nexus of the accused persons spread up to the State of Maharashtra. The police of P.S., Gambhirpur was hand in glove with the local M.P. i.e. Ram Kant Yadav. The accused were threatening the first informants. Even police had implicated the rice miller as accused who had purchased the rice from truck drivers and truck owner. The truck owner was sitting at Mumbai and after arrest of Raj Hans Yadav, one letter was sent from Mumbai to police of Azamgarh stating therein that truck bearing number (not mentioned) belongs to him, who had given it to Raj hans Yadav. The petitioner no. 1 runs trade in the name and style of M/s Sheetla Traders who loaded Truck no. M.H.48J-0565 owned by Raj Hans Yadav @ Pappu Yadav with 258 quintals of rice worth Rs. 6,55,578/- and sent the same through Raj Laxmi Transport to Thekma Bazar to trader at Ahmedabad. An F.I.R. being Crime No. 246 of 2018 under Sections 407, 419, 420, 467, 468, 471 and 120-B I.P.C. was registered at P.S. Gambhirpur, District Azamgarh against Chandra Bhushan @ Bhushan Yadav (O.P. No. 3), Pappu Yadav @ Raj Hans Yadav (O.P. No. 2), Manoj Yadav which was lodged by petitioner no. 1 in which charge-sheet has been filed. Petitioner no. 2 runs trade by the name and style M/s .... (name not mentioned) and loaded the same truck owned with 251 quintal of rice worth Rs. 6,00,000/- and sent the same through same transport agency. F.I.R. being Crime No. 7 of 2019 under Sections 407, 419, 420 and 120-B I.P.C. was registered by petitioner no. 2 at P.S. Bardah, District Azamgarh against the same accused. Petitioner no. 3 runs a business in the name and style of M/s Vishwanath Galla Bhandar. He also loaded in the same truck with quantity of 260 quintal rice worth Rs. 6,86,500/-and sent through the same transport agency and regarding it, he lodged F.I.R. being Crime No. 1 of 2019 under sections 407, 419, 420 and 120-B I.P.C., P.S. Phoolpur, District Varanasi against the accused persons. During the course of investigation, name of Kallu Yadav who is rice miller came into light who surrendered cash worth Rs. 11,39,295/- in respect of the rice purchased by him from the accused persons and was sold in the market. The police of P.S., Gambhirpur, District Azamgarh mentioned in G.D No. 20 in respect of Crime No. 246 of 2018. Further it is mentioned that money was surrendered by rice miller i.e. Futtu Yadav @ Bageshwar Yadav (respondent no. 4) and the same was kept as recovery. Fard recovery was prepared. This amount was in respect of rice of the petitioners sold by the accused to the rice miller. Copy of fard recovery memo of amount of Rs. 11,39,295/- is annexed as Annexure No. 10 to the Writ Petition. The petitioners came to know that the respondent no. 4 had surrendered the money at P.S. Gambhirpur saying that the truck owner had got Rs. 5,00,000/- and rest of amount of rice i.e. 11,39,295/-, he gave to police. The police of P.S. Gambhirpur recorded statement of rice miller who categorically stated that the accused persons had sold rice to him and that he gave the accused persons Rs. 5,00,000/- and the remaining amount was given to police with a request to disburse the same among the traders, whose rice was sold out by the accused. The application was moved by the petitioners before the Magistrate for release of the said amount in their favour which was rejected and the Revision against that order has also been rejected about which the orders have been stated above. It is further mentioned that both the courts below had committed error in holding that the rice was misappropriated while in the recovery memo, money has been shown as recovered. It was apparent from the perusal of the allegations that the rice of three traders was loaded in the month of November, 2018 in the said truck No. M.H.48J-0565, owner of which was Raj Hans Yadav @ Pappu Yadav (O.P. No. 2) who sold the rice to miller, Kallu Yadav, therefore, the said amount ought to have been released as per provision of Section 457 Cr.P.C. subject to taking security to the satisfaction of the court concerned. In not doing so, both the courts have committed error and, accordingly, the above mentioned impugned orders need to be quashed.
I am not convinced by the argument of learned counsel for the petitioners that there is any error in the impugned orders because it has been clearly mentioned by the trial court that the three F.I.Rs. have been lodged in respect of the theft of rice belonging to three different owners being carried in one truck which has been mentioned above. The person who is said to have purchased the rice being carried by the said truck, is stated to have paid an amount of Rs. 5,00,000/- to the accused i.e. driver and the owner and the remaining amount is said to have been given by him at P.S. Gambhirpur, therefore, prayer that the said amount deserves to be released in favour of three petitioners as it was their rice, which was sold to co-accused and the said co-accused had deposited the said money obtained by sale of the said rice at the P.S. but the trial court has correctly held that it cannot be ascertained without evidence to be recorded during trial as to the said amount belonged to which particular crime number so that it could be said to be case property of that particular crime number. For lack of this evidence, it has been deemed proper by the trial court as well as revisional court not to release the said amount till the evidence was adduced from the side of prosecution in this regard. It is further mentioned in the impugned order that investigation was still pending, therefore, in this conspectus, I do not find any infirmity in the impugned order, hence the same is upheld and this petition deserves to be dismissed and is, accordingly, dismissed.
Order Date :- 13.12.2019 A. Mandhani