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3. Being aggrieved and feeling dissatisfied with the order passed by the ld. Special Judge, the present Criminal Revision Application has been preferred.

4. It would be necessary to state some facts at the out set for the convenience and to appreciate the contentions raised by the ld. counsel appearing for the parties. According to the applicant, on 24.3.2001, Mr. M.M. Sharma, Deputy General Manager, State Bank of India, had lodged a criminal case before the Dy.S.P., Central Bureau of Investigation, Mumbai against the accused mentioned therein for the offence punishable under section 120B read with section 409, 406, 420 of IPC and section 13(2) read with section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 alleging that his bank has been defrauded by purchasing gold from it against Banker's cheques which were subsequently returned unpaid. Undisputedly, there is no reference of the present applicant in the complaint nor he has been made accused by the Investigating Agency till today. In pursuance to the investigation in the aforesaid complaint filed on behalf of the State Bank of India (hereinafter referred to as "SBI" for short). On 28.3.2001, Dy.S.P., CBI, Mr. P.P. Mankar and his team seized books of account, bill books, other records and had also seized 387 bars of Gold ( each of 10 Tolas ) weighing 45,139.680 grams, in total, from the house of the applicant, in cash Rs. 5,50,000/ and Rs. 24,00,000/ are seized from the house and shop of the applicant respectively. The details of the goods seized are on record with copy of three different search lists. This search was conducted in pursuance to the investigation in connection with the criminal case registered by CBI mainly against the Proprietor of M/s. K.L. Chokshi, Officials of the Classic Cooperative Bank and Visnagar Nagrik Sahakari Bank Ltd. It is contended by the applicant that he himself is a victim of conspiracy hatched by the promoters and Director of M/s. K.L. Chokshi, group of firms and office bearers of Classic Cooperative Bank Ltd. and he has been defrauded to the tune of Rs. 12 crores. A copy of the complaint filed by the present applicant against Classic Cooperative Bank for various offences punishable under sec. 403, 406, 120B etc. bearing CR No. I-149/2000 in Naranpura Police Station of Ahmedabad, is also on record. As per the complainant, he is active in the business of gold and for his business purpose, was purchasing gold bars from many parties, such as M.M.T.C., Mr. K.L. Chokshi & Co. and other firms and was selling the same to many parties and different Gold Smith. At the time of search, the CBI Officials who were carrying out the search were informed that the Gold Bars in question are the part of 1000 bars purchased by the applicant from MMTC, a Government of India establishment on 23.3.2001 on payment of Rs. 5 crores. Not a single bar of the gold has seized for forming a part of the Gold Bars purchased from K.L. Chokshi & Co. as there were no transactions with K.L. Chokshi after 30.3.2001. The entire stock purchased from KL Chokshi was sold off by the applicant on or before 15.3.2001. The grievance of the applicant is that despite all these informations and details given to the officers and the criminal complaint filed with Naranpura Police Station, the CBI Officials have totally ignored the say of the applicant and the goods has been seized without considering the details of the documents shown. In the application preferred before the Special Judge under sec. 457 of CrPC for release of the goods seized has pointed out number of aspects and circumstances and it is hammered before this Court that on 15.3.2001 there was a meagre balance of gold bar in the stock register of the applicant as the gold previously purchased were sold off. 100 gold bars (Mark credit suissee) purchased from MMTC Ltd. and 100 gold bars appears of the same brand were purchased from Lalji Kanji Soni for business purpose and on 28.3.2001, 387 gold bars were in the stock of the applicant. All these bars are of credit suissee brand. This gold does not form part of one purchased from KL Chokshi & Co. or its other sister concern. The cash found is also not of sale of gold bars which were purchased from KL Chokshi even prior to 13/15.3.2001. After considering the grounds mentioned in paras-8 to 13 of the application filed before the ld. Special Judge and the arguments advanced in support of these grounds, ld. Special Judge rejected the application.

11. On 1.3.2001, the applicant had total stock of 10804 gold bars as per the copy of the stock register produced by him. A the rough calculation indicates that approximately 55000 gold bars were purchased till 22.3.2001. Approximately more than 80% of the gold bars were purchased during this period seems to have been purchased from M/s. KL Chokshi. This stock has been sold or eroded off to only 88 gold bars. On 22.3.2001, the stock was of 88 gold bars on hand and on 23.3.2001 1000 gold bars were purchased from MMTC. It is on record that from these transactions, the CBI has found out that two different parties shown to be based at Rajkot are fictitious or are not found genuine i.e. Varahi Jwellors and Sumati Corporation, mentioned in para-11 of the reply affidavit. When an element of book adjustment is piping out from the stock register and in turn from other documents, the big difference of quota purchased from and by M/s. KL Chokshi whether becomes relevant is the question needs detail investigation. It is true that the investigation is on since more than one year approximately but when the application claiming goods u/s. 457 CrPC was moved before the ld. Special Judge the investigation was old by only one week, and the finding recorded should be appreciated in that perspective. Even on the date of the order passed by the Ld. Special judge, the investigation was old by 1 and 1/2 months approximately. So, ld. Special Judge is absolutely correct in holding that till the investigation is completed, it would not be legal or proper to return the goods to the applicant on any condition especially when the goods is claimed under the entitlement mentioned in section 457 of CrPC. Seizure of the property during the search has to be brought to the notice of the Court. The statutory obligation on the part of the seizing agency is to intimate such seizure to Court and showing the intention to retain it simultaneously would not create any illegality by itself. I am afraid that it is obligatory on the part of the Investigating Agency that it cannot retain the goods seized unless permitted by the court. Such agency can retain the seized goods till agency itself decides to return it back to the persons from whom the same is seized or such agency may held entitled for custody of the goods seized till passing of other appropriate order. Such an order or decision may be conditional but I am not in agreement with the say of Mr. Barot that the rejection of the application by the ld. Special Judge would become bad in law only on the count that the Investigating Agency has expressed its desire to retain the goods with a remand prayer, till the date of filing of the charge-sheet.

13. The cash amount of Rs. 29,50,000/ is concerned, the say of CBI officer is that most of the amount is the out come of the sale of the golds purchased and/or received from M/s. KL Chokshi.

14. The applicant - Arvindkumar Chokshi has claimed that the cash has been properly accounted but the same is without any details thereof. During the course of oral arguments, Mr. MR Barot, learned Senior Counsel has tried to provide computer statement from a cash book for the purpose and of the period between 1.3.2001 to 20.3.2001. If any finding is recorded on the basis of this statement, than it would amount to receiving the document in evidence pertaining to a case under investigation by the CBI. However, for the sake of argument, if it is accepted that these details were given to the Searching Officer, even than it can be inferred that most of the amount has been collected from Gold Bullion sales. On 9.3.2001 the cash on hand was about Rs. 15 lacs and odd. There were no transactions on 10.3.2001 and 11.3.2001. Thereafter on sales of gold bullion within 4 days, the cash on hand had reached to Rs. 30,00,000/ and odd. It is important to mention that even as per this cash book entries provided by the applicant, though the applicant was dealing with his business on Saturday, there are no entries in the cash book on 10.3.2001 and after 15.3.2001 till 20.3.2001. The whole cash has been retained by the applicant from 15.3.2001 till the date of search. The applicant is holding the current account in Indian Overseas Bank, Ashram Road, Ahmedabad bearing account No. 2291. The reasons to retain this much cash on hand without, or in absence of any formal transaction has not been satisfactorily explained even before this Court, and I agree too, that Mr. Barot has tried to explain that cash of this much amount on hand to a big trader cannot be said to be a large sum. Searching Officer has stated that this holding of cash is without any details and the fact of having no cash transaction after 16.3.2001, the amount of Rs. 12,00,000/ and odd. remains unaccounted. As Cooperative Bank of City of Ahmedabad and in the State of Gujarat were sinking and the account holders of Cooperative Banks were rushing to receive their cash amount back from their respective accounts, the applicant may have opted to retain cash on hand, is one of the attempts made to explain contingency by the applicant before this Court. It would have been very premature on the part of the Special Judge on the day on which the impugned order has been passed, to hold that the cash amount seized by the CBI Officials is the consideration amount of genuine sales, therefore, the entire amount should be returned to the applicant. This Court is supposed to examine the legality and propriety of the order. The element of perversity or apparent error if is brought to the notice of this Court, then only this Court can exercise its revisional jurisdiction, but the applicant has failed in doing so. The stage of investigation today would not be a matter of much relevance. The relevant period so far as this Court is concerned, would be the period between the date of search and seizure and date of pronouncement of the order passed by the ld. Special Judge. Each entry as submitted by Mr. MR Shah in the cash book shall have to be cross checked. The fact that CBI has not lodged any formal claim qua the goods seized would not add strength to the case of the present applicant. The so called ambiguity in the complaint and the absence of details of nature and quantum of gold taken out from State Bank of India, Overseas Branch, also would not held the applicant. From the papers of investigation, it is amply clear that SBI had delivered, during the fraudulent transactions, gold bars of same brand weight and purity to KL Chokshi. So, the attempts to retain the goods till the investigation is complete or for some longer period made by the CBI should not be viewed as lack of bonafide. Therefore, the time spent in the investigation or the alleged delay also would not help the applicant. Ultimately, the powers vested with the Court is discretionary in nature and this discretion has to be exercised judiciously. When the Court is suppose to decide a point judiciously, the finding must be arrived at objectively. Subjective satisfaction of one fact that if the goods seized is returned to the applicant that he would be able to retain the same or similar goods to the court as and when asked would not twilt the balance in favour of such applicant. The word "entitlement" reflected in section 457 of CrPC, therefore is very relevant and important. It would be convenient to refer the relevant section 457 of CrPC, which reads as under:

"4. Section 457 covers the facts of the present case. The police have recovered a considerable sum of money from the appellant and the money is stated to be seized in connection with an offence registered against an accused person, namely Shri Bansi Lal. Whether the appellant himself will be a witness or an accused is not possible to state at the present moment according to the counsel for the State. Be that as it may, the situation is squarely covered by S. 457 CrPC. However, the fact that the court has power to dispose of property seized by the police but not yet produced before the court does not mean that the Special Judge must always release such property to the person from whom the property has been recovered, especially when the stage of case is in suspicion, the investigation is not over and charge sheet has not yet been laid. The Court has to be circumspect in such a situation before releasing the property. While we reverse the decision of the courts below that the Special Judge had no power to release the seized property , we should not be taken to mean that whenever the claimant asks for the property back, he should be given back the said property. That has to be decided on its own merits in each case and the discretion of the court has to be exercised after due consideration of the interests of justice including the prospective necessity of the production of these seized articles at the time of the trial. If the release of the property seized will, in any manner, affect or prejudice the course of justice at the time of the trial, it will be a wise discretion to reject the claim for return."