H. G. RAMESH, J. ( 1 ) THIS revision has been preferred under Section 397 of the Cr. P. C. by the petitioner being aggrieved by the order passed by the I Additional sessions Judge, Dharwad, dated 17-6-2000 dismissing the appeal of the petitioner claiming possession of M. O. 1-revolver said to be seized from the second respondent in C. C. No. 926 of 1990. ( 2 ) THE brief facts leading to the revision are that the petitioner is said to have deposited M. O. 1-revolver bearing No. A-23346 of "weblay and scott, England", on 4-9-1987 with the accused R. G. Ullagaddimath who is arms dealer at Hubli. When it was so deposited the accused is said to have sold the same in favour of the 2nd respondent for a bare consideration of Rs, 5,000/- on 17-12-1987. Further, the petitioner is said to have moved the Additional Deputy Commissioner, Belgaum, seeking for return of revolver deposited with the accused and the Additional Deputy commissioner, Belgaum, on 7-4-1988 has passed an order directing the accused Ullagaddimath to return the deposited revolver to the petitioner. Further it is alleged that there is shown to be an agreement, Ex. D. 1, to sell the revolver to the accused for Rs. 45,000/- and out of which rs. 25,000/- is said to have been received, not as a sale consideration but only as security and he has only subscribed his signature to Ex. D. 1 on the blank paper and he never knew that it would be converted into sale agreement etc. In Ex. D. 1 it is also shown to be the sale consideration for Rs. 45,000/- only and out of which he had paid Rs. 25,000/ -. Thereafter when the order was passed by the Deputy Commissioner to return to the accused Ullagaddimath is said to have not returned the revolver to the petitioner who is the complainant and as such he is said to have filed a complaint before the Police Sub-Inspector, Hubli and the same is registered in Crime No. 281 of 1988 for the alleged offence under Section 406 of the IPC. After a detailed investigation the police is said to have filed a charge-sheet against the accused Ullagaddimath. Meanwhile during the pendency of the criminal proceedings before the Magistrate Court, the accused Ullagaddimath died, the proceedings was abated. After a detailed investigation the police is said to have filed a charge-sheet against the accused Ullagaddimath. Meanwhile during the pendency of the criminal proceedings before the Magistrate Court, the accused Ullagaddimath died, the proceedings was abated. Subsequently a claim was made in respect of seized revolver from the 2nd respondent who is alleged to have purchased the same from the accused on 17-11- 1987 for a consideration of Rs. 5,000/ -. Subsequently after considering the applications of the complainant as well as the second respondent the learned Magistrate disposed of the applications filed under Section 452 of the Cr. P. C. , holding that property has to be returned to the person from whom it was seized and that the claim of the complainant cannot be entertained since it requires an elaborate enquiry. The petitioner being aggrieved by the same preferred an appeal before the I Additional sessions Judge, Dharwad, sitting at Hubli and the learned Sessions judge by orde~ dated 17-6-2000 has dismissed by the claim of the petitioner stating that M. O. 1-revolver could be recovered by initiating separate legal action before proper forum. Both the orders passed by the learned Judicial Magistrate First Class and of the Sessions Judge are assailed on various grounds. ( 3 ) HEARD the learned Counsel for the petitioner and the learned counsel appearing for 2nd respondent and also the learned Additional state Public Prosecutor. ( 4 ) THE points for consideration are: (1) Whether the order passed by the First Additional Sessions judge, Dharwad, sitting at Hubli, suffers from any irregularity or illegality in rejecting the claim of the petitioner? (2) What order? at the outset it is the argument of the learned Counsel for the 2nd respondent that he has purchased M. O. 1 from the accused Ullagaddimath for a consideration of Rs. 5,000/- on 17-12-1987 and since it has been recovered from his possession and a case is also registered against the accused (Ullagaddimath) he is entitled for the same since the case is abated. In support of his argument he relied upon a ruling in the case of n. Madhavan v State of Kerala. 5,000/- on 17-12-1987 and since it has been recovered from his possession and a case is also registered against the accused (Ullagaddimath) he is entitled for the same since the case is abated. In support of his argument he relied upon a ruling in the case of n. Madhavan v State of Kerala. The learned Counsel for the petitioner has vehemently contended that since the accused did not return the m. O. 1-revolver which is worth more than one lakh at that point of time in spite of the direction of the Additional Deputy Commissioner, Bel- gaum he lodged a complaint before the Hubli Town Police seeking to take action against the accused R. G. Ullagaddimath and for violation of the conditions of the Arms Act and also for criminal breach of trust for not having returned the revolver which was deposited with him. Accordingly, he submits that he is entitled for the possession of the revolver and both the learned Magistrate and the Additional Sessions Judge having not appraised the facts in proper perspective dismissed the claim of the petitioner and he is in fact the person entitled for the arm mentioned at M. O. 1 and it is not the sale agreement which he has entered into with the accused on 9-8-1988 for Rs. 45,000/- and he has only received Rs. 25,000/- as a security for having deposited the revolver. ( 5 ) AT the outset it is seen that the admitted facts are that the 2nd respondent is said to have purchased M. O. 1 from R. G. Ullagaddimath, the accused in C. C. No. 926 of 1990 before the Judicial Magistrate First class Court, Hubli on 17-12-1987 and in fact the said revolver is stated to have been deposited with the accused on 4-9-1987. However, it is seen that the alleged agreement of sale dated 9-8-1988 is almost eight months subsequent to the sale said to have been made by the accused to respondent 2. It is pertinent to note that sale consideration as stated by 2nd respondent is for Rs. 5,000/-, when it is disputed that the said ammunition is worth more than a lakh, and also that the agreement is said to be concocted and created on 9-8-1988, and sold for a sum of Rs. 45,000/ -. It is pertinent to note that sale consideration as stated by 2nd respondent is for Rs. 5,000/-, when it is disputed that the said ammunition is worth more than a lakh, and also that the agreement is said to be concocted and created on 9-8-1988, and sold for a sum of Rs. 45,000/ -. It is argued by the learned Counsel for the petitioner that the sale could not have taken place for a mere sum of Rs. 5,000/ -. Even assuming that the accused had sold the same to the 2nd respondent on 17-12-1987, the accused had no right whatsoever to dispose of the ammunition in favour of the 2nd respondent having regard to the fact that the alleged agreement of sale between the complainant and the accused was dated 9-8-1988 which is much subsequent to the alleged sale said to have taken place in favour of the 2nd respondent. ( 6 ) THE criminal proceedings were initiated on the basis of the complaint lodged by Hubli Police against the accused for criminal breach of trust and also for violations of conditions and for commission of the offence under the Indian Arms Act wherein the said accused was charge-sheeted and subsequently during trial the accused died as a result of which criminal proceedings abated. Subsequently, when there is a claim between the complainant and the second respondent in respect of M. O. 1, the Courts below have come to the conclusion that it is from the custody of the 2nd respondent the said M. O. 1 is recovered and he is entitled for the same for various reasons assigned. However, at this juncture, it is pertinent to note that when the accused had disposed of the property under M. O. 1 in favour of the 2nd respondent even assuming. that it cannot be true because as on that date he had no right or title whatsoever and he is shown to have acted against the trust with whom the property was deposited by him. Since there is no material placed before the Court to show that there was prior agreement or prior understanding. to dispose of the revolver to respondent 2 or also to some third person and therefore purchase of property, that is M. O. 1 by the 2nd respondent is not shown to be bona fide having regard to the fact that the property worth Rs. to dispose of the revolver to respondent 2 or also to some third person and therefore purchase of property, that is M. O. 1 by the 2nd respondent is not shown to be bona fide having regard to the fact that the property worth Rs. 45,000/-, according to the accused, is sold for a bare sum of Rs. 5,000/-, that cannot be a fair transaction and mere a sham transaction if at all. ( 7 ) REGARDING the disposal of the property is concerned the learned counsel for the 2nd respondent relied on a ruling in the case of N. Madhavan, supra, wherein it is held thus:"10. The words "may make such order as it thinks fit" in the section, vest the Court with a discretion to dispose of the property in any of the three modes specified in the section. But the exercise of such discretion is inherently a judicial function. The choice of the mode or manner of disposal is not to be made arbitrarily, but judicially in accordance with 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 a well-recognised principles is that when after an inquiry or trial the accused is discharged or acquitted, the Court should normally restore the property of class (ay or (b) to the person from whose custody it was taken. Departure from this salutary rule of practice is not to be lightly made, when there is no dispute or doubt as in the instant case that the property in question was seized from the custody of such accused and belonged to him". It is a case wherein the accused was discharged or acquitted after an enquiry or trial. At that time it was for the Court to normally restore the property from whom it was recovered, It was also made clear that the departure from the said practice could be made when there is no dispute or doubt that the property was seized from the custody of such accused and belonged to him. At that time it was for the Court to normally restore the property from whom it was recovered, It was also made clear that the departure from the said practice could be made when there is no dispute or doubt that the property was seized from the custody of such accused and belonged to him. ( 8 ) IN the instant case, specifically when there is a dispute as regards the sale of the property by the complainant, having regard to the material facts on record that basically the complainant is a licence holder and the disputed M. O. 1 was with the accused Ullagaddimath who is an arms dealer who is shown to have committed criminal breach of trust in disposing of the same without consent or authority from the complainant on 17-12-1987, wherein the alleged agreement was entered into by the complainant and the said sale is said to have taken place only on 1-9-1988 which is much subsequent to the sale said to be made in favour of the 2nd respondent. According to the alleged agreement it was agreed to be sold for Rs. 45,000/- and wherein Rs. 25,000/- is said to have been paid. However, even admitting that sum of Rs. 25,000/- was paid by the complainant but according to him, it is only a security for having deposited the revolver and it is not a sale agreement etc. The claim of the 2nd respondent is that he had purchased it for Rs. 5,000/- that too, from the accused when the accused had no right or title whatsoever to dispose of the same and when he has sold the same on 17-12-1987 in favour of the 2nd respondent wherein he had no right or title or whatsoever and it is the duty of the purchaser to be aware of those facts that too, it is not an ordinary commodity available in the market when it requires verification of the document and certification from the authorities and he claims that he has purchased it for a bare sum of Rs. 5,000/- and whereas it is worth more than a lakh and as such it is a sham transaction and the same cannot be accepted and even in criminal proceedings it is for the court to assess the factual situation before ordering delivery of the article even to a person from whom it has been recovered. 5,000/- and whereas it is worth more than a lakh and as such it is a sham transaction and the same cannot be accepted and even in criminal proceedings it is for the court to assess the factual situation before ordering delivery of the article even to a person from whom it has been recovered. It is a normal rule or principle that "caveat emptor" ("buyer beware") when a person has purchased the property for a sum of Rs. 5,000/- he cannot set a claim over the property when it is sham transaction. The decision relied upon by the learned Counsel for the 2nd respondent is of no help to him. When the claim is disputed by the complainant and the complainant claims having better title and right over the property he can claim the same and he is entitled for the same. ( 9 ) THE learned Counsel for the petitioner has relied upon a ruling of the Kerala High Court in the case of Thampi Chettiar Arjunan Chettiar v State and Another, regarding disposal of property under Section 452, wherein it is held that it cannot be held as a uniform rule that the person who produced the articles or from whom they were seized is alone entitled to custody under Section 452 in all cases, where the accused happens to be acquitted. It is a case wherein the accused is shown to have been prosecuted for the offence punishable under Section 406 of the IPC. The ratio has been laid down to the effect that it has to ascertain and order it to return it to the person who is really entitled to. So each case will have to be decided on its own merits and when there being a principle to be followed to return the article from whom it was recovered. ( 10 ) IN view of the above discussion the orders passed by the learned magistrate and also confirmation of the said order by the learned Additional sessions Judge, Dharwad, sitting at Hubli, in Criminal Appeal no. 8 of 1997 are required to be set aside holding that the complainant is entitled for the possession of the revolver by reversing the order of the court below and confirming the claim of the complainant. 8 of 1997 are required to be set aside holding that the complainant is entitled for the possession of the revolver by reversing the order of the court below and confirming the claim of the complainant. Accordingly, I proceed to pass the following order: ( 11 ) THE order passed by the Additional Sessions Judge, Dharwad, sitting at Hubli, dated 17-6-2000 in Criminal Appeal No. 8 of 1997 dismissing the appeal filed by the petitioner is set aside. The petitioner is entitled for the possession of M. O. 1-revolver. However, regarding the claim of the 2nd respondent he is at liberty to claim the amount paid by him to the accused and further if there is any understanding arrived at between the complainant and the 2nd respondent regarding the amount paid the same be settled outside the Court. Accordingly, the petition is disposed of. ( 12 ) IT is submitted by the learned Counsel for the petitioner that in view of the interim order passed by this Court on 7-8-2000 he had been directed to deposit a sum of Rs. 10,000/- before the Trial Court. However, the petitioner is at liberty to withdraw the amount which he has deposited before the Trial Court. ( 13 ) HOWEVER, the complainant shall return the amount of Rs. 25,000/- to the successors of the accused as the accused is reported to be dead. --- *** --- .