JUDGMENT - Dr. Mrs. PRATIBHA UPASANI, J.:---This writ petition is preferred, being aggrieved by the judgment and order dated 20th December, 1991 passed by the Court of Sessions, Malegaon, dismissing the appeal preferred by the appellants (Original Accused Nos. 2 and 3) and confirming the order passed by the Judicial Magistrate, First Class, Malegaon, about the return of property. 2. Few facts need to be narrated, which are as follows : The petitioners in this writ petition, were original accused Nos. 2 and 3 in Criminal Case No. 17 of 1989, on the file of the Court of the Judicial Magistrate, First Class, Malegaon. Three accused, namely, Mohd-Hanif Vali Alla Sardar, Abdul Hamid Hafij Abdul Gafur and Sarvar Abdul Hamid, were chargesheeted for the offences punishable under section 406, 420 read with 34 of the Indian Penal Code. 3. The prosecution case was that the complainant Mr. Noor Khan, who was the resident of Malegaon and who was running power looms of Grieves Cotton Co., Ahmedabad make, was the owner of two powerlooms, which were 54" (inches) in size. Due to his old age, the complainant was not using those power looms. On 31st December 1987, one Abdul Majid, who was a Dalal of Malegaon, came to the complainant, Noor Khan, along with accused No. 1 Mohd. Hanif Vali Alla Sardar, and told the complainant that accused No. 1 was desirous of taking his looms on rent. The complainant agreed to let out his two power looms to accused No. 1 and an agreement came to be entered into between the complainant and accused No. 1 with respect to those power- looms. The power looms were thus let out by the complainant to accused No. 1 at the rate of Rs. 75/- per month for each powerloom for a period of 11 months. This agreement was dated 31st December, 1987. As per the agreement, accused No. 1 paid an amount of Rs. 1,650-/- to the complainant as full rent of two powerlooms for a period of 11 months on the same day. When the term of the agreement was over, the complainant visited the house of accused No. 1 on 1st December, 1988. He found that the said powerlooms were not with accused No. 1. He learnt that accused No. 1 had sold those powerlooms to somebody else. He, therefore, lodged a complaint with the Azad Nagar Police Station. Malegaon. When the term of the agreement was over, the complainant visited the house of accused No. 1 on 1st December, 1988. He found that the said powerlooms were not with accused No. 1. He learnt that accused No. 1 had sold those powerlooms to somebody else. He, therefore, lodged a complaint with the Azad Nagar Police Station. Malegaon. Thereafter the Investigating Officer concerned, reduced the complaint in writing and registered the complaint as Crime Registration No. 125 of 1988 (I.P.C. 406) on 7th December, 1988. Thereafter the Investigating Officer investigated the offence, recorded statements of the concerned witnesses and seized Muddemal property viz., the powerlooms from the possession of accused Nos. 2 and 3. After completing investigation, chargesheet came to be filed against accused Nos. 1 to 3 in the Court of the Judicial Magistrate, First Class, Malegaon for offences under section 406, 420 I.P.C. read with section 34 I.P.C. The accused appeared in the Court, charge was framed against them, they pleaded not guilty and claimed to be tried. Their defence was that of total denial. The learned Magistrate, after recording the evidence, gave a finding that the prosecution had proved that the complainant was the owner of the said Muddemal property and that accused No. 1 was entrusted with the Muddemal property. He also gave a finding that the prosecution had proved that accused No. 1 had disposed of the said property i.e. two powerlooms in violation of the agreement made between the complainant and accused No. 1. 4. The learned Magistrate gave a finding supported by reasoning that the complainant was the owner of those two powerlooms. Accused Nos. 2 and 3 claimed to be the owner of those powerlooms and that though some documents were produced by accused No. 2 and 3, they were not pertaining to the Muddemal property, but were relating to other powerlooms owned by accused Nos. 2 and 3. He gave clear cut finding that documentary evidence produced by the complainant in respect of the ownership of Muddemal property was convincing and trustworthy as identification of the powerlooms which were of Grieves Cotton Co., Ahmedabad make tallies with the Muddemal property seized by the police. He thus, came to the conclusion that the Muddemal property viz., those two powerlooms belonged to the complainant and not to accused Nos. 2 and 3. He thus, came to the conclusion that the Muddemal property viz., those two powerlooms belonged to the complainant and not to accused Nos. 2 and 3. He, therefore, convicted accused No. 1 for offence punishable under section 406 of the Indian Penal Code, though acquitted him for offence under section 420 of the Indian Penal Code as the said offence was not proved by the prosecution. He also acquitted accused Nos. 2 and 3. As far as order with regard to the return of Muddemal property under section 452 of the Code of Criminal Procedure was concerned, he ordered that the Muddemal property viz., two powerlooms seized from accused No. 2, custody of which, during the pendency of the trial, on his application was given to accused No. 2 be given to the complainant. 5. Against the said order of the Magistrate, the original accused Nos. 2 and 3 filed Criminal Appeal No. 46 of 1989 in the Court of the Sessions Judge, who by his judgment dated 20th December, 1991 confirmed the order passed by the Magistrate and dismissed the appeal. It is against this order of return of property to the complainant that the present writ petition has been filed. 6. I have heard all the Advocates at length. It is to be kept in mind that the scope of power under section 452 of the Code of Criminal Procedure, 1973, is summary in nature and an order thereunder does not adjudicate upon the civil rights of the parties and the person aggrieved. Mr. Shaikh appearing for original accused Nos. 2 and 3 submitted that it was an error on the part of the Magistrate to pass an order handing over custody of those two powerlooms to the complainant, when they were seized from the custody of accused Nos. 2 and 3 and those two powerlooms had to be returned to accused Nos. 2 and 3 only. To substantiate his arguments he relied upon a decision of the Supreme Court in the case of (N. Madhavan v. State of Kerala)1, reported in 1979 Cri. L.J. 1197, so also (Swaroopchand S/o. Bacchraj Kothari and others v. Smt. Leela W/o. Ramsingh Suryawanshi and others)2, reported in 1991(1) Bom. C.R. 501. In the Supreme Court case relied upon by Mr. To substantiate his arguments he relied upon a decision of the Supreme Court in the case of (N. Madhavan v. State of Kerala)1, reported in 1979 Cri. L.J. 1197, so also (Swaroopchand S/o. Bacchraj Kothari and others v. Smt. Leela W/o. Ramsingh Suryawanshi and others)2, reported in 1991(1) Bom. C.R. 501. In the Supreme Court case relied upon by Mr. Shaikh, the proposition of law laid down is that when it is a question of disposal of property under section 517 (Old Criminal Procedure Code), the Court has got discretion as to the disposal of the property, and that the general rule is that it should be restored to the person from whose custody it was taken. The Supreme Court has further stated that departure from this statutory rule can be made depending upon the facts of the case and also laid down as to when such departure is permissible. In that case, the property in question was a gun, which was seized from the accused. It was ultimately proved that no offence was committed with that gun. The question then arose as to whom the gun should be handed over as there was no other claimant. The Supreme Court said that considering the peculiar facts and circumstances of that case, in such an eventually it should be given to the accused because it was seized from him. Thus, this case does not come to the rescue of the petitioners. 7. Mr. Shaikh also relied upon the decision in the case of Swaroopchand S/o. Bacchraj Kothari and others v. Smt. Leela W/o. Ramsingh Suryawanshi and others, reported in 1991(1) Bom. C.R. 501. Here also the same proposition is laid down for return of property under section 452 of the Code of Criminal Procedure, 1973. It says that normally the property should be restored to the person from whose custody it was seized and that the departure from this statutory rule of practice is not to be lightly made. This proposition is, however, qualified by the next proposition that departure from this statutory rule is only made when there is no dispute or doubt that the property in question was seized from the custody of such person and belonged to him. (Emphasis supplied by me). This was the case of theft and hence question of title was important. This proposition is, however, qualified by the next proposition that departure from this statutory rule is only made when there is no dispute or doubt that the property in question was seized from the custody of such person and belonged to him. (Emphasis supplied by me). This was the case of theft and hence question of title was important. In this case, the Sessions Judge held that the discovery memorandum was not proved and it was difficult to accept the title of the applicant who claimed to be the owner of the property in question. The accused in that case was discharged and the ornaments which were the subject matter in that case, were returned to the owner (accused). 8. In the present case at hand, the facts are entirely different. There is no dispute about the ownership of the complainant. Those two powerlooms did belong to the complainant Noor Khan. There is also no dispute that there was an agreement between the complainant and accused No. 1 that they were let out to accused No. 1 for the period of 11 months only. Thereafter accused No. 1 dishonestly sold them to accused No. 2 and 3. That is how they came to be in possession of accused Nos. 2 and 3. The guilt of accused No. 1 is duly proved by the prosecution. He has been convicted for the offence of criminal breach of trust. It might be that accused Nos. 2 and 3 have purchased the said two powerlooms from accused No. 1 and it might be their case that they were bona fide purchasers of the powerlooms, but that does not mean that just because accused Nos. 2 and 3 were acquitted by the Court, the property should not go back to the original owner, with respect to whose ownership and possession both the courts below have given concurrent finding. In (Mevaldas Takhatmal Lekhawani v. The State of Maharashtra)3, 1981 Bom. C.R. 860, it is laid down that, "Where the initial title of the property was that of the complainant and the accused only got permission to use it for some time and had promised in writing to return to the complainant and accused could not establish title even prima facie, it was a fit case where Court should exercise jurisdiction under section 452 and direct possession of property to complainant. The facts of this case and the earlier two judgments cited by the learned Advocate for the petitioners are different and are not of any help to him. 9. The words used by the Legislature in section 452, "entitled to possession" cannot be given narrow meaning so as to order the delivery of property only in favour of a person from whose possession it was seized. If a property is seized from a thief or from a person who is not legally in possession of the same, it cannot be ordered to be returned to him merely because the property was seized from that person. (I.L.R. 1984 Bom. 2712)4, at page 2715. It cannot be held as uniform rule that person producing articles or from whom articles are seized is alone entitled to custody under section 452, where accused happens to be acquitted. (K.T. Abraham v. P.J. Verghese)5, 1985 Cri. L.J. N.O.C. 28. In this case a machine was seized from accused facing trial under section 406 of the Indian Penal Code. The complainant, who was the owner of the machine leased it to accused which was not returned by the accused on expiry of lease. The complainant in this case was held to be entitled to custody of the machine as owner and not the accused. 10. Where there is no rival claim and the accused claiming the property to be belonging to him has not satisfactorily accounted for the same, the Court should make a departure from the normal rule and should consciously pass order as to return of the property which is the subject matter of the trial. In the present case at hand, there is concurrent finding given by both the courts below that the prosecution has established, beyond reasonable doubt that not only the complainant was owner of those two powerlooms, but that the property seized from accused Nos. 2 and 3 was the very same property, which was given on lease by the complainant to accused No. 1. I do not find any reason to interfere with it under section 482 of the Code. In fact, if the property is not given back to the complainant, there will be failure of justice. 11. Admittedly it is not the function of Criminal Court to decide the question involving principles of civil law, if there is dispute between parties claiming return of property. In fact, if the property is not given back to the complainant, there will be failure of justice. 11. Admittedly it is not the function of Criminal Court to decide the question involving principles of civil law, if there is dispute between parties claiming return of property. There is no bar to a person aggrieved by this order to approach Civil Court for appropriate order. Hence following order : Writ petition No. 1601 of 1991 is dismissed. No order as to costs. Petition dismissed. *****