MUKUL GOPAL MUKHERJEE J. ( 1 ) IN the present revisional application the petitioners impugn an order dated 30th April 1986 passed by the learned Sub-Divisional Judicial Magistrate, Hooghly Sadar rejecting the prayer of the petitioners for return of Rs. 36,000. 00 and the necessary documents seized from their Savings Account No. 3372 of 1982 on Allahabad Bank, Purbasthali Branch by a notice in connection with Mogra P. S. Case No. 9 dated 6/10/18982 under section 395 and sections 25 and 27 of the Arms Act. It is the contention of the petitioners that they are cultivators and they possess considerable landed properties in or around their village Babaidanga. P. S. Purbasthali in the District of Burdwan. They jointly hold Savings Account No. 3372 of 1982 with the Allahabad Bank. Purbasthali Branch. District Burdwan. They opened Bank Account on November 9, 1982. ( 2 ) FIVE separate documents of sale were executed between 28/10/1982 and 11/11/1982. By these conveyances the petitioner No. 1 sold more or less eight big has of agricultural land to one Sk. Jalil son of Md. Mohit Sk. Of Village Tanaghata P. S. Purbasthali for a total consideration of Rs. 40,000. 00 In two installments viz, on November 9, 1982 and November 11, 1982 the aforesaid conveyances were registered. On 9th November, 1982 two deeds were registered and the total consideration under these two deeds were Rs. 16,000. 00. Similarly three other deeds were registered on November, 11, 1982 for a total consideration of Rs. 24,000. 00. The entire sale proceeds of the deeds registered on November, 9, 1982 were deposited with the Allahabad Bank. Purbasthali Branch. On November 11, 1982 a sum of Rs. 20,000. 00 out of Rs 24,000; received as sale proceeds of the three deeds registered on November 11, 1982 has also deposited in the same account with the Allahabad Bank. The balance sum of Rs. 4000/was retained as cash money with the petitioner No. 1 for his personal expenses. All these lands were sold to Sk. Jalil in good faith for valuable consideration. The balance sum of Rs. 4000/was retained as cash money with the petitioner No. 1 for his personal expenses. All these lands were sold to Sk. Jalil in good faith for valuable consideration. ( 3 ) ON December 9, 1982 in connection with Mogra P. S. Case No. 9 dated 6/10/1982 Under section 395 and section 26 and 27 of the Arms Act one Sri N. C. Pal, S. I. attached to DEB Hooghly seized all these documents relating to the Savings Bank Account No. 3312 of 1982 at Allahabad Bank Purbasthali Branch as stated earlier. On 10/12/1982 in course of investigation of the aforesaid case the Investigating Officer examined petitioner No. 2 and recorded his statement under section 161 Cr. P. C. and forwarded him to the court for recording his statement under section 164 Cr. P. C. which was duly recorded by Sri M. Ghose, Judicial Magistrate, 1st Class. Hooghly Sadar. ( 4 ) BY a letter bearing No. INS/14/12/82 dated 20/12/1982 the Manager, Allahabad Bank, Purbasthali Branch informed the, petitioners that under the Instruction of the Inspector of Police, DEB, Hooghly operation of their Savings Bank Account No. 3372 of 1982 would remain stopped. On November 2, 1985 after completion of investigation in connection with Mogra P. S. Case No. 9 dated 6/10/1982 under section 395 I. P. C. and sections 26 and 27 of the Arms Act the police had submitted a final report against all accused persons. In the said final report the Investigating Officer had inter alia stated that in course of Investigation it was revealed that one of the alleged banig dacoits, Sk. Jalil (since deceased) had purchased land for Rs. 40,000/- from the petitioner No. 1. The petitioner No. 1 had deposited the sale proceeds received in cash in his joint Savings Bank Account with his son petitioner No. 2 with the Allahabad Bank, Purbasthali Branch, Burdwan. On two occasions the petitioner together with Sk. Jalil had gone to the bank. It was further alleged that the currency notes were in bundle or Rs. 100/- notes having seal of the Allahabad Bank, Adisaptagram Branch, which raised doubts in the mind of the Cashier, Allahabad Bank, Purbasthali Branch who informed police. Thereafter police seized the said cash and sent the same for expert's opinion. Jalil had gone to the bank. It was further alleged that the currency notes were in bundle or Rs. 100/- notes having seal of the Allahabad Bank, Adisaptagram Branch, which raised doubts in the mind of the Cashier, Allahabad Bank, Purbasthali Branch who informed police. Thereafter police seized the said cash and sent the same for expert's opinion. According to experts opinion the seal on the said seized currency notes bundle were identical with these of the seals in stolen cash of the said bank, it was further stated that on May 20, 1983 the accused Sk. Jalil was killed on an encounter with Calcutta Police. That in the said report the Investigating Officer had further prayed that cash amounting to Rs. 16,000. 00 and Rs. 20,000. 00 seized from Allahabad Bank, purbasthali Branch on 9-12. 82 which was kept in the Zimba of the Manager of the said Bankl may be given to the Allahabad Bank, Adisaptagram Branch, tho defacto complainant in the case. By an order dated 9-12-83 the learned Sub-Divisional Judicial Magistrate, Hooghly was pleased to accept the final report submitted by the Investigating Officer against the accused persons in connection with Mogra Police Station Case No. 9 dated 6-10-82 and discharged all the accused persons. While passing the said order the learned Sub-Divisional Judicial Magistrate. Hooghly was further pleased to direct return of the sum of RI. 36,000. 00 seized from Savings Bank Account No. 3372 of 1982 of Allahabad Bank, Purbasthali to Allahabad Bank. Adisaptagram Branch, the defects complainant of the said case. The petitioners contend that they had acquired possession of the money in good faith and for valuable consideration and no allegations whatsoever had ever been made by the Investigating Agency against them for knowingly receiving money allegedly Involved in any offence and through lack of good faith on their part. As the matter stands in law the different sales effected in favour of Sk. Jalil cannot be set aside and the lands which are already transferred in favour of Sk. Jajil can in any manner be retransferred to the petitioner No. 1. With the sale of the lands, consideration money lawfully belong to the petitioner not which he kept in the joint account of the petitioners and the Court had on authority whatsoever to direct return of the said money to Allahabad Bank, Adisaptagram Branch. Jajil can in any manner be retransferred to the petitioner No. 1. With the sale of the lands, consideration money lawfully belong to the petitioner not which he kept in the joint account of the petitioners and the Court had on authority whatsoever to direct return of the said money to Allahabad Bank, Adisaptagram Branch. Furthermore, the currency notes deposited with them on November 9 and 11, 1982 not having been seized and or labelled for future identification at the time of being deposited, It could not be said that the notes seized by the police on December 9, 1982 a month after their alleged deposit, were those deposited by the petitioners. When on April 3, 1986 the petitioners prayed for withdrawal of a sum of Rs. 5000/- the Bank refused to effect payment since operation of the said account was suspended under the instruction of Criminal Investigating Department, West Bengal. Having come to learn of the exparte order passed on 9-12-85 by the learned Sub-Divisional Judicial Magistrate, Hooghly (Sadar) the petitioners on April 18, 1986 were instructed to file an application in the court of the learned Sub Divisional Judicial Magistrate. Hooghly (Sadar) for return of Rs. 36,000/seized by police on 9/12/1982 from the petitioners (joint Saving, Bank Account No. 3372 of 1982 ). By an order dated 30th April 1986 the learned Sub-Divisional Judicial Magistrate, Hooghly (Sadar) rejected petitioners prayer for return of the said money against which they have come in revision. ( 5 ) MR. B. C. Ray, learned Advocate appearing on behalf of the petitioners, contended that the general rule of disposal of a property seized in connection with a criminal proceeding on the accused being discharged, is to direct return of the property from whom it is seized. Indeed the court has a discretion in the matter to dispose of the property in any of the three modes specified in the statute. But the exercise of such discretion is inherently a judicial function. The choice of the mode or the manner of disposal is not to be made arbitrarily, but judicially in accordance with the sound principles founded on reason and justice. Keeping in view the class and nature of the property and the material before it. But the exercise of such discretion is inherently a judicial function. The choice of the mode or the manner of disposal is not to be made arbitrarily, but judicially in accordance with the sound principles founded on reason and justice. Keeping in view the class and nature of the property and the material before it. One of such well recogoised principles is that when after an enquiry or trial, the accused is discharged or acquitted the Court should normally restore property to the person from whose custody it was taken. Departure from the salutory rule of practice is not to be lightly made when there is no dispute or doubt, as In the instant case, that the money in question was seized from the custody of the present petitioners and did belong to them. Mr. Ray cited in this context a reported decision of the Supreme Court in Madhavan v. State of Kerala. It was however contended on behalf of the State as well as on behalf of the Bank that the impugned order could not be said to be without jurisdiction, which would warrant interference by a revisional or appellate Court. In this connection the decision in Arjun Pandey v. State of Orissa, was cited. However, our Calcutta High Courts view has always been to consider such orders regarding disposal of property as final inasmuch as it decide, the right of the parties entitled to possess upon discharge or acquittal of the accused. In the ultimate view that I take of this matter. I hold that a just decision of the case would indeed warrant an interference, but before I do that I would refer to the other decisions referred to by Mr. Ray in support of the entitlement of the petitioners to get back the currency notes in the peculiar facts of the case. Mr. Ray also cited a Division Bench judgment of the Sikkim High Court in Sonam Pintso v. State of Sikkim and others. This was a case where the accused No. 2 had purchased property for value and without notice of the previous sale by the accused No. 1 to the complainant and the same was recovered from the accused No. 2 and sold under the orders of the Court during trial for the offence under section 420 I. P. C. and subsequently the accused No. 2 was discharged by the Court. The Division Bench of the Sikkim High Court held, that the accused No. 2 would be entitled to the sale proceeds of such property as be had full right to possess it. This case is however distinguishable on facts. Reference was also made to the Supreme Courts decision in the case of State Bank of India v. Rajendra Kumar Singh and others. It was held in this case that the property in coins and currency notes passes by mere delivery, when the transferee of the coin or currency notes takes in good faith for value and without notice of a defect in the title of the transferor. This is an exception to the rule Nemodat quod non habet. The Bank, therefore, had a right to possess the currency notes within the meaning of section 517 of the old Code. The facts of the said case were that the Bank received currency without, suspicion of the notes being involved in the commission of the offence. The seizure of the notes made by the police during investigation of the offence. Ultimately the High Court's direction that the notes be handed over to the persons from whom the accused had received them otherwise was held to be illegal inasmuch as the Bank had a right to possess, the notes within the meaning of section 517 of the old Code. It was a case where Rajendra and Virendra had handed over 21 currency notes of the denomination of Rs. 1000/each to Kisan Gopal for the criminal purpose of duplication. In the course of an Investigation of a case under sections 420/406 and 120-B I. P. C. against Kisan Gopal, the police seized the currency notes in question from the State Bank, which had received the notes in the normal course of its business and without any knowledge or suspicion of having been involved in the commission of an offence. In the proceeding that followed investigation of the case, Kisan Gopal was acquitted and the Sessions Court directed return of the currency notes to the Bank on the application made under section 517 (1) of the old Code. In appeal to the High Court, the order of acquittal was set aside and Kisan Gopal was convicted under sections 420, 406 and 120. In appeal to the High Court, the order of acquittal was set aside and Kisan Gopal was convicted under sections 420, 406 and 120. B I. P. C. The High Court on the application made by Rajendra ordered the currency notes to be handed over to Rajendra and Virendra. The Supreme Court held that the High Court had not exercised its discretion conferred upon it by the statute according to the proper legal principles and hence its order of return of property to Rajendra and Virendra was liable to be set aside. In Bankey Lal Kapoor v. Allahabad Bank Ltd. , a Division Bench of Allahahad High Court had to deal with a case of embezzlement by a servant of the Allahabad Bank, who absconded with a lakh of rupees where the money was paid by accused to his creditors in payment of his outstanding debts. He sent a sum of Rs. 2400/- to the petitioner, Banke Lal Kapoor in notes under insured cover. The police however traced this payment and Banke Lal Kapoor handed over the money to the police. At the conclusion of the trial, the trial Court ordered the money to be handed over to the complainant Allahabad Bank as a property in respect of which an offence appeared to have been committed. The Allahabad High Court declined to interfere in revision holding inter alia that the Court below being satisfied that this was property in respect of which an offence has been committed, it was property to which the Allahabad Bank claimed to be entitled. Sulaiman. J. while concurring with Deniels. J. held that they had no power to compel the Allahabad Bank, who has received the money, to refund the money to the Court or to pay it back to the applicant. In another case reported in Pursu and another v. Emperor, it was Court of the judicial Commissioner that held that cash is not property within the meaning of section 517 of Cr. P. C. , 1898 except insofar as it is capable of being identified in specie. If it is certain that the actual coins found on a thief or receiver of stolen property are the actual coins which have been the object of theft, then it is permissible to treat such cash as stolen property. P. C. , 1898 except insofar as it is capable of being identified in specie. If it is certain that the actual coins found on a thief or receiver of stolen property are the actual coins which have been the object of theft, then it is permissible to treat such cash as stolen property. However in no case can coins which have been put into circulation and passed on to the public be treated in the same way as stolen coins actually remaining in the possession of the thief. The doctrine of caveat emptor does not apply to currency coins. Batchelor, J. of the Bombay High Court in, the decision In Re: Pandharinath Pundalik, pointed out the general rule with regard to currency notes and held that they pass by mere delivery. The Calcutta High Courts decision in Akshoy Kumar Soha v. Naba Kumar Singh Dhuduria, is another case on the point. A Manager of a certain firm misappropriated a number of currency notes belonging to the firm and deposited them with other firm to redeem certain bail of exchange, which he had pledged on his own account with that firm. The notes were identified by their numbers and most of them were seized by the police and produced before the Magistrate who directed that they should be refunded to the former firm. Edgley, J. held that the order wan proper one. The decision in re Pandharinath Pundalik decided by Batchelor, J of Bombay High Court (ibid) was distinguished since it was not a case in which the Notes passed to the petitioners firm in the ordinary course of business. ( 6 ) TAKING into consideration all those decided cases, I am of the view that since the petitioner No. 1 has transferred for valuable consideration the landed properties to Sk. Jalil who is now dead and the transfer as effected in favour of Ski. Jalil can in no manner be set aside or rescinded, the petitioner No. 1 is lawfully entitled to hold the sale proceeds by virtue of a sale of the landed property in favour of Ski. Jalil and If that be so, his deposit of the consideration money with the Allahabad Bank, Purbasthali Branch can in no manner be held; to be illegal, more so when none of the accused persons has ever been proceeded against in the case. Jalil and If that be so, his deposit of the consideration money with the Allahabad Bank, Purbasthali Branch can in no manner be held; to be illegal, more so when none of the accused persons has ever been proceeded against in the case. Regard being had to the peculiar nature of the case, I am of the view that the orders impugned are liable to be set aside. ( 7 ) GIVING my anxious consideration to the facts of the present case, I do hold that the facts make out a case where the notes passed to the petitioner No. 1 in the ordinary course of business and the possession of the petitioner No. 1 cannot be tainted with any malafides. ( 8 ) HOWEVER, there is nothing on record that the petitioners formally proved their documents about the different transactions they had with Sk. Jalil as a consideration of which they received the money. That, however has to be done in accordance with law. In that view of the matter, I set aside the orders dated 9/12/1986 and 30/4/1986 and direct that on proof of the documents and evidencing their transaction; as contended by the petitioners in their application dated 18-4-86, the amount of Rs. 36000. 00 should be refunded to their joint account with the Allahabad Banki, Purbasthali Branch, being No. 3372. ( 9 ) THE revisional application accordingly stands allowed and the order impugned as also the order dated 9/12/1985 insofar as it relates to refund of Rs. 36,000. 00 to the Allahabad Bank, Adisaptagram Branch also stands to order return of the seized money to the petitioners Joint Savings Bank Account with the Allahabad Bank, Purbasthali Branch on proof of the documents evidencing the said transactions as contended by the petitioners in their application dated 18/4/1986.