Karnataka High Court
Smt N Shakuntala Bai vs R Raju @ Rajanna Since Dead Represented ... on 13 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 726, 2020 (3) AKR 44
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION No.484 of 2015
BETWEEN
SMT. N.SHAKUNTALA BAI,
W/O R.RAMESH,
AGED ABOUT 43 YEARS,
RESIDING AT 5TH CROSS,
PALASANDRA LAYOUT,
KOLAR-563 101.
...PETITIONER
(BY SRI VEERANNA G.TIGADI, ADVOCATE)
AND
1. R.RAJU @ RAJANNA,
SINCE DEAD REPRESENTED BY
1(a) SMT.LAKSHMI,
W/O LATE R.RAJU,
AGE NOT KNOWN,
4TH CROSS, PALASANDRA LAYOUT,
KOLAR-563 101.
2. JAYANTILAL,
S/O ASTIMAL,
AGED ABOUT 68 YEARS,
AMMAVARPET,
KOLAR-563 101.
...RESPONDENTS
(BY SRI G.V.KODANDA RAM, ADVOCATE FOR R2;
R1 IS SERVED.)
2
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED
17.03.2006 PASSED BY THE LEARNED ADDITIONAL CIVIL
JUDGE (JR.DN.) AND JMFC., KOLAR IN C.C.No.1143/2004
ACQUITTING THE ACCUSED UNDER SECTIONS 406, 420, 504
AND 506 OF INDIAN PENAL CODE AND THE IMPUGNED
JUDGMENT DATED 18.04.2015 PASSED BY THE LEARNED
PRINCIPAL DISTRICT AND SESSIONS JUDGE, KOLAR IN
CRL.A.No.47/2006 AND THE MO-1-GOLD CHAIN MAY BE
ORDERED TO BE RETURNED TO THE
PETITIONER/COMPLAINANT.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the petitioner being aggrieved by the order dated 17.03.2006 passed by the Additional Civil Judge and JMFC., Kolar (hereinafter referred to as the 'Trial Court'), in CC No.1143/2004, which was upheld by the Principal District and Sessions Judge, Kolar (hereinafter referred to as the 'First Appellate Court'), in Crl.A.No.47/2006, dated 18.04.2015.
2. Heard the arguments of learned counsel for the petitioner and learned counsel for respondent No.2. Respondent No.1 is served and unrepresented. 3
3. The case of the petitioner is that she filed a complaint against the accused/respondent No.1-Raju @ Rajanna for the offence under Sections 420, 406, 504, 506 of Indian Penal Code (for short 'IPC') before the Magistrate and the same was referred to the Police under Section 156(3) of the Criminal Procedure Code (for short 'Cr.P.C.') and the Police filed the charge sheet. Later, the accused appeared before the Court and faced trial. After conclusion, the Trial Court acquitted the accused. However, MO.1-gold chain, which was claimed by the petitioner/complainant has been given to the custody of the accused and PW.2-Pawn Broker. Assailing the order of disposal of the property and giving the property to the custody of the accused and PW.2, the petitioner/complainant filed an appeal before the First Appellate Court. The First Appellate Court after hearing the arguments of the parties, dismissed the appeal. Hence, the petitioner/complainant is before this Court. 4
4. Learned counsel for the petitioner contended that the Trial Court while disposing of the property acting under Section 452 of Cr.P.C. has not made any enquiry with the parties and decided the ownership of the property and in the body of the judgment, the Trial Court has stated that the complainant failed to prove the ownership. Further, the gold chain-MO.1 was ordered to be given to the accused. The same is not sustainable in law as there is no enquiry made as per Section 452 of Cr.P.C. Therefore, learned counsel for the petitioner prays for setting aside the order of the Trial Court as well the First Appellate Court and remit the matter back to the Trial Court for making enquiry as required under Section 452 of Cr.P.C.
5. Perusal of the order goes to show that the Trial Court has acquitted the accused for the offence under Sections 406, 420, 504 and 506 of IPC. The case of the complainant before the Trial Court is that the accused had obtained/borrowed the gold chain from the complainant and thereafter, it was not returned thereby, the complaint 5 came to be filed for criminal breach of trust and cheating the complainant. The Police after investigation filed charge sheet. During the course of investigation, on the voluntary statement of the accused the gold chain-MO.1 was recovered from PW.2, the pawn broker. Admittedly, the complainant has stated in her evidence that she has not produced any document to show that she is the owner of gold chain-MO.1 and based upon the said admission, the Trial Court acquitted the accused. But while disposing the material object, the Trial Court has not made any enquiry. For the sake of ready reference, Section 452 of Cr.P.C. is extracted as under:
"452. Order for disposal of property at conclusion of trial.
(1)When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence 6 appears to have been committed, or which has been used for the commission of any offence.
(2) An order may be made under sub-
section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court, if the order made under sub-section (1) is modified or set aside on appeal or revision.
(3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459.
(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.
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(5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise."
5. Even as per Section 458 of Cr.P.C., the property shall have to be released when the person is able to show that it was legally acquired by him. Otherwise, the property shall have to be forfeited to the State. But, here in this case, the very case of the complainant itself is that the property belonged to her, which was taken by the accused or borrowed from the complainant and not returned back and thereby, the accused committed criminal breach of trust. Therefore, mere non-production of a bill/document or not proving the ownership itself is not a ground for returning the gold ornament to the accused. Even if the accused has rival claim, the Trial Court ought to 8 have made an enquiry in order to dispose of the property, but that was not done. This Court in the case of Laxman vs. State of Karnataka in Crl.A.No.2717/2012, decided on 03.09.2012 has held that an enquiry is required to be held and then proceed to pass orders for releasing the property to a person. Even on perusal of the case on record, the complainant claimed that the said property belonged to her and a criminal prosecution has been launched. Therefore, without there being any records from the accused, ordering to return the material ornament to the accused is not correct. Therefore, the order under revision passed by the Trial Court and upheld by the First Appellate Court require to be set aside and the matter requires to be remanded to the Trial Court for making enquiry for disposal of the property.
6. Accordingly, the Criminal Revision Petition is allowed. The order of the Trial Court directing disposal of the property to the accused and PW.2 is hereby set aside. The matter is remitted back to the Trial Court for fresh 9 consideration for making enquiry and dispose of the matter within three months from the date of receipt of copy of the order.
Sd/-
JUDGE mv