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2008 DIGILAW 941 (MP)

Rajesh Jewellers v. State of M. P.

2008-07-30

S.S.DWIVEDI

body2008
ORDER 1. The applicant has preferred this criminal revision under sections 397 (1) of CrPC feeling aggrieved by the appellant Court's judgment dated 25.5.2005 passed by IV Additional Sessions Judge, Shivpuri in criminal appeal No. 177/05; whereby the appeal preferred by the applicant has been dismissed and affirmed the order passed by CJM Shivpuri for forfeiture/confiscation of the property seized by the police Kotwali, Shivpuri in Crime No. 512000. 2. Briefly stated facts of the case are that the police Kotwali, Shivpuri had registered a case at Crime No. 512000 for the offence under section 379 of IPC against one Shailendra Kumar from whom possession currency notes of Rs. 8,25,000/- and 7.790 grams of old silver ornaments had been seized. During investigation, it is found that this property has been seized from the possession of Shailendra Kumar on the pretext that it may be stolen property, but on investigation nothing has been proved that aforesaid property belongs to some theft case. Thereafter, the applicant M/s. Rajesh Jewellers through its partner Rajesh Kumar filed an application for custody of the aforesaid seized property before the CJM, Shivpuri. The learned trial Court by impugned order dated 5.2.2005, rejected the application filed on behalf of the applicant for custody of the seized property though, the main accused from whose possession the property had been seized has been discharged from the offence under section 379 of IPC. Feeling aggrieved by the aforesaid order, the applicant had filed a Criminal Appeal No. 177/05 before the Additional Sessions Judge, Shivpuri. The learned appellant Court after hearing both the parties, by impugned judgment dated 25.5.2005 dismissed the appeal and affirmed the order for forfeiture of the concerning property as directed by trial Court. Feeling aggrieved by which, this revision petition on behalf of the applicant has been filed before this Court. 3. Heard learned counsel for both the parties and perused the record. 4. Feeling aggrieved by which, this revision petition on behalf of the applicant has been filed before this Court. 3. Heard learned counsel for both the parties and perused the record. 4. It is submitted by learned counsel for the applicant that the alleged property has been seized by the police on the pretext that it may be stolen property but as no offence under section 379 of IPC has been proved against any of the accused persons then certainly it is the Constitutional right of the applicant that he is entitled to get back the possession of the seized property from whose possession the property has been seized by the police if property does not belong to any criminal case and trial Court has wrongly ordered for confiscation/forfeiture of the aforesaid property without any legal provision. The only objection has been raised that the applicant could not produce any satisfactory document as to whether he has paid any income tax on the seized property or not. It is further submitted that the trial Court has no business for taking any action under the Income Tax Act. However, Income Tax Department had also filed petition for possession of the alleged property and that petition which was registered as Criminal Miscellaneous Petition No. 1027/01 has also been dismissed by this Court earlier and this Court has clearly directed that Income tax Department is free to take legal and proper action against the applicant with regard to the concerning seized property for recovery of income tax, if any, due on the applicant and in view of the aforesaid order dated 10.3.2004, now the applicant is entitled to get back the aforesaid seized property from the Court concerned and both the Courts below have wrongly rejected the application filed by the applicant for possession over the property. Hence, he prayed for setting-aside of the impugned judgment. 5. Learned PP supported the impugned order and submitted that applicant has failed to prove the fact that he had shown the property before the Income Tax Department and also paid the income tax on the currency seized from his possession and in view of that both the Courts below have rightly ordered for forfeiture of the property concerned and no grounds and available for any interference in the impugned judgment. Therefore, he prayed for dismissal of the revision petition. 6. Therefore, he prayed for dismissal of the revision petition. 6. Considering the rival contentions raised by both the counsels it is apparent that property has been seized by the police Kotwali only on the pretext that it may be stolen property but since the seizure on 14.11.2000 the police could not prove the fact that this property belongs to some theft case or criminal case and the property has been detained only on the pretext that Income Tax Department can take legal action against the applicant, but for that purpose also, the retention of the property does not appear to be legal under the provisions of the Income Tax Act. The income tax department is also free to take necessary action against the applicant on the basis of recovery of cash amount of Rs. 8,25,000/- and the applicant is duty bound to satisfy the Income Tax department whether it is money of his assessed income or not, but for that purpose also, the Court concerned cannot retain the aforesaid seized property without any legal provision or without application of the Income Tax department as the Income Tax department had also claimed the possession over the property concerned but that matter has finally been disposed of by this Court in M.Cr.C. No. 102712001 vide order dated 10.3.2004 and in view of that, the Income Tax Department is free to take any legal action against the applicant for non-disclosure of the amount seized in the income tax return. At the most, the trial Court at the time of return of the property in favour of the applicant can also inform the Income Tax department that applicant has received the aforesaid cash amount as well as old silver ornaments from the Court and Income Tax department is free to take suitable legal action against the applicant for recovery of any income tax or penalty as the case may be from the applicant. 7. In view of that, the trial Court as well as the appellate Court have wrongly held that the applicant is not entitled to get back the seized property which has been seized in a criminal case under section 379 of IPC and in that case, the concerning so-called co-accused Shailendra Kumar has also been discharged. 8. 7. In view of that, the trial Court as well as the appellate Court have wrongly held that the applicant is not entitled to get back the seized property which has been seized in a criminal case under section 379 of IPC and in that case, the concerning so-called co-accused Shailendra Kumar has also been discharged. 8. Consequently, the revision petition is allowed and the impugned orders passed by the appellate Court as well as the trial Court are set aside and it is directed that seized property, currency note of Rs. 8,25,000/- together with interest and 7.790 grams old silver ornaments whatever seized from the possession of Shailendra Kumar be returned to the applicant M/s. Rajesh Jewellers through its partner Rajesh Kumar Agrawal. It is further directed that the trial Court may also inform the Income Tax department for delivery of the possession of the aforesaid property so that Income Tax department may take suitable action for recovery of any income tax or any penalty from the applicant as the case may be as per the legal provision. 9. With the aforesaid direction, revision petition is disposed of finally.