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2007 DIGILAW 627 (ORI)

SRI SANDEEP JENA v. STATE

2007-08-17

R.N.BISWAL

body2007
R. N. BISWAL, J. ( 1 ) THE petitioner assails the order dated 3. 11. 2006 passed by the learned Sessions Judge, Sambalpur in criminal Revision No. 41 of 2006 dismissing the Revision and confirming the order dated 11. 8. 2006 passed by the learned s. D. J. M. , Sambalpur in C. M. A. No. 143 of 2006 arising out of C. T. Case No. 1113 of 2006 refusing release of Rs. 81,00,000 in his favour. ( 2 ) THE facts leading to filing of the present crlmc in short is that on 19. 7. 2006 ramakrushna Khuntia @ Pichu (Opposite party No. 2) lodged a written report before the II-C-in-charge of Town P. S. , Sdmbalpur alleging that on 18. 7. 2006 while he was absent in the house, some miscreants broke open his house and committed theft of one set of gold necklace weighing 5 Bharies, 2 ear-rings, 2 rings and one suitcase belonging to his sister Smt. Rajeswari Jena. As the report revealed a cognizable case, the ii-C-in-charge registered it under Sections 457/380 of Indian Penal Code and directed a. S. I. , Sri S. K. Acharya to take up investigation. Accordingly Sri Acharya investigated into the case. In course of investigation, he visited the spot and examined the witnesses. While being examined, Smt. Rajeswari Jena stated that on 3. 5. 2006 she herself and her husband Sri Sandeep Jena (petitioner) withdrew some cash from h. D. F. C. Bank, Sambalpur, out of which she kept Rs. 1 Crore in the house of her brother ramakrushna Khuntia in an attache-case for safe custody. On the date of Sital Sasthi, as per her direction her daughter-in-law preeti Sharma and his brother Pichu @ ramakrushna Khuntia took Rs. 19,00,000 from that attache-case. So the A. S. I. Sri acharya was of the view that Ramakrushna khuntia lodged a false report regarding theft in his house including the attache-case of his sister, Rajeswari Jena, in order to misappropriate Rs. 81,00,000. ( 3 ) ON 21/22. 7. 2006 night while the police personnel of Bada Bazar P. S. were on night patrolling duty, they found three persons carrying something. At the sight of the police they ran away leaving one attache-case. 81,00,000. ( 3 ) ON 21/22. 7. 2006 night while the police personnel of Bada Bazar P. S. were on night patrolling duty, they found three persons carrying something. At the sight of the police they ran away leaving one attache-case. Being informed about this A. S. I. Sri acharya along with some other police staff went to the spot and found one maroon coloured attache-case covered with an old lungi, lying there and on search of the attache-case Rs. 60,00,000 of G. C. notes of Rs. 500 denomination was found therein. Rajeswari Jena being called to the spot identified the attache-case to be her own so also the money, contained therein. The A. S. I. again searched the house of Ramakrushna khuntia and found one bag kept concealed underneath the earth near a broken wall. On search of the bag, Rs. 21,00,000 of G. C. notes of Rs. 500 denomination was found therein, which he seized. Then the A. S. I. , sri Acharya submitted a report in this regard to the II-C of Town P. S. , Sambalpur who registered it under Section 406 of Indian Penal Code giving rise to C. T. Case no. 1113 of 2006 and directed A. S. I. Sri S. K. Patra to take up investigation of the case. ( 4 ) WHILE the investigation was in progress the petitioner filed a petition under Section 457 of Criminal Procedure Code giving rise to C. M. A. No. 143 of 2006 to release of rs. 81,00,000 seized in the said C. T. Case no. 1113 of 2006 in his favour. According to the petitioner, his son Soumit Ranjan Jena exports iron ore through Minerals and steels Trading of India ('mstc' in short) at goa in the name and style M/s. Jena Enterprises and the petitioner is the authorized signatory of the said Enterprises. There is an account of M/s. Jena Enterprises in h. D. F. C. Bank, Sambalpur branch. The petitioner withdrew a sum of Rs. 1 crore from the said account on 3. 5. 2006 and kept it in the house of his brother-in-law namely ramakrushna Khuntia @ Pichu in an attache-case. He took back cash of Rs. 19,00,000 and the rest amount of Rs. 81,00,000 was retained in possession of Ramakrushna khuntia. On 19. 7. The petitioner withdrew a sum of Rs. 1 crore from the said account on 3. 5. 2006 and kept it in the house of his brother-in-law namely ramakrushna Khuntia @ Pichu in an attache-case. He took back cash of Rs. 19,00,000 and the rest amount of Rs. 81,00,000 was retained in possession of Ramakrushna khuntia. On 19. 7. 2006 Ramakrushna khuntia lodged an F. I. R. alleging that some gold ornaments and one attache-case had been stolen from his house and during investigation it came to light that he lodged a false F. I. R. in order to grab Rs. 81,00,000 belonging to the petitioner. So, the petitioner filed the petition under Section 457 of Criminal Procedure Code as stated earlier. The Assistant Deputy Director of Income Tax (Investigation) intervened in the matter and claimed that the entire seized cash being unaccounted for, should be released in favour of the Income tax Department under Section 132a of the Income Tax act. The petition under Section 457 of Criminal Procedure Code was rejected as the ownership of the cash was yet to be ascertained and it was ordered that the seized cash be kept in Government Treasury. Being aggrieved with the said order the petitioner preferred Criminal Revision No. 41 of 2006, which was dismissed, and the order of the lower Court was upheld. The present crlmc has been filed challenging the said order. ( 5 ) LEARNED counsel appearing for the petitioner submitted that Ramakrushna khuntia (Opposite party No. 2) filed an affidavit that his sister had kept the seized cash in his custody. Similarly, learned counsel appearing for Soumit Ranjan Jena, petitioner in CRLMC No. 175 of 2007 submitted that the petitioner (Soumit Ranjan Jena)has no objection if the seized cash is released in favour of his father, the present petitioner. So the CRLMC should be allowed and the seized cash may be released in favour of the petitioner. Per contra learned counsel appearing for opposite party No. 3, deputy Director of Income Tax (Investigation), Sambalpur contended that the entire seized cash being unaccounted for, should be released in favour of the Income Tax department under Section 132a of the Income Tax Act. Per contra learned counsel appearing for opposite party No. 3, deputy Director of Income Tax (Investigation), Sambalpur contended that the entire seized cash being unaccounted for, should be released in favour of the Income Tax department under Section 132a of the Income Tax Act. The said section reads as follows: "on a requisition being made under sub-section (1) the Officer or Authority referred to in Clause (a) or Clause (b) or Clause (c), as the case may be, of that sub-section, shall deliver the books of account, other documents, or assets to the Requisitioning Officer or when such Officer or Authority is of the opinion that it is no longer necessary to retain the same in his or its custody. " ( 6 ) PURSUANT to this provision, the Director, Income Tax (Investigation), bhubaneswar issued a warrant of authorization on 23. 7. 2007 in favour of the Deputy Director, Income Tax (Investigation), Sambalpur (opposite party No. 3) to require the Inspector-in-charge of Town P. S. , Sambalpur to deliver him the book of account and other documents or assets as aforesaid. Admittedly, the Court is not an Officer or Authority as found in the provision quoted above. When the S. D. J. M. , Sambalpur is in seisin of the matter, he is not obliged to release the seized cash in favour of the Income Tax department. Moreover, since no assessment so far as has been made against the petitioner or M/s. Jena Enterprises, the Income tax Department has no right to get the seized cash released in their favour. This view has been fortified in the decision J. R. Malhotra and another v. The Additional sessions Judge, Jullundur and others where the Apex Court held that when there was no order of assessment and Income Tax demand, the revenue could not indirectly keep the money on the plea that there would be demand and therefore, the money should be kept with the Revenue. As mentioned earlier, Ramakrushna Khuntia does not lay any claim on the seized cash and Soumit ranjan Jena has no objection if the cash is released in favour of his father, the present petitioner. So, in my view it would be just and proper to release the seized cash in favour of the petitioner. ( 7 ) THEREFORE, under such facts and circumstances, the CRLMC is allowed, the impugned order dated 3. 11. So, in my view it would be just and proper to release the seized cash in favour of the petitioner. ( 7 ) THEREFORE, under such facts and circumstances, the CRLMC is allowed, the impugned order dated 3. 11. 2006 passed by the learned Sessions Judge, Sambalpur in criminal Revision No. 41 of 2006 confirming the order of the trial Court is hereby set aside and the seized cash be released in favour of the petitioner on furnishing Bank guarantee of Rs. 1 crore.