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2009 DIGILAW 907 (ORI)

RAMESH KUMAR AGARWALA v. STATE OF ORISSA

2009-11-20

I.MAHANTY

body2009
JUDGMENT : I. Mahanty, J. - The present revision application has been filed by the Petitioner Ramesh Kumar Agrawal (informant) seeking to challenge the order dated 24.3.2009 passed by the learned Addl.Sessions Judge (Fast Track), Sambalpur in Crl. Appeal No. 15/2007-08 rejecting the Petitioner's appeal against the order dated 14.11.2006 passed by the learned S.D.J.M., Sambalpur in CM.A. No. 175 of 2006 dismissing the petition u/s 452 Code of Criminal Procedure seeking release of the seized KVPs (postal fixed deposits) in his favour. 2. Learned Counsel for the Petitioner submitted that the Opposite Party No. 2 (accused) had executed an affidavit before the Notary Public at Sambalpur admitting that the Petitioner, who is a Director of Priti Oil Pvt. Ltd., was the owner of the seized KVPs and he had no objection if the same, were refunded to the informant (Petitioner). Apart from the above, learned Counsel for the Petitioner also stated that the parties had settled their dispute and had filed a compromise petition on 11.4, 1996 before the trial Court on which the informant/Petitioner has signed. Apart from the above, Petitioner's further grievance was that Opposite Party No. 2 had filed a false affidavit before the District Consumer Redressal Forum, claiming therein that the KVPs standing in the name of Opposite Party No. 2 (accused) and his wife, had been destroyed and burnt. Apart from the above, learned Counsel for the Petitioner contended that the trial in this case had proceeded without the informant (Petitioner) being examined and, therefore, the revision petition ought to be allowed. 3. Mr. Pawan Kumar Agarwala (accused-Opp.Party No. 2), on the other hand, appeared in person and stated that he had faced trial in G.R. Case No. 246 of 1996 and the trial had been concluded by order dated 26th June, 2006 acquitting the accused and in terms of the directions issued by the trial Court, the KVPs should have been hand over to him (Opposite Party No. 2) since the same were standirig in his name as well as that of his wife and had been seized by'the I.O. in course of investigation, from his possession. 4. Most of the contentions raised in the present petition were also raised before the lower appellate Court. 4. Most of the contentions raised in the present petition were also raised before the lower appellate Court. The lower appellate Court has discussed the various issues raised before it and came to the conclusion that once the accused-opposite party had been acquitted in a trial, he was entitled for a direction for being returned with the properties seized from him. Apart from the above, Opposite Party No. 2 stated that the KVPs which had been seized from him by the Investigating Officer, on the basis of an F.I.R. lodged by the Petitioner (informant) had been given in 'zima' to the informant by the police and the trial Court by order dated 12.12.2001 (during pendency of the trial) had directed that if the documents seized and given in zima to the informant had matured in the meantime, the said amount would have to be deposited in the name of the Court, in stead of giving interim zima of the Petitioner pending final disposal of the G.R. Case No. 246 of 1996. Accordingly, the informant-Petitioner was directed to produce the KVPs in Court which had given in his zima by the Investigating Officer. 5. Opposite Party No. 2 contended that the Petitioner neither complied with the direction of the trial Court passed in 12.12.2001 nor complied with the directions issued, after conclusion of the trial vide judgment dated 26.6.2006 and further, the Petitioner also did not comply with the directions issued by the learned Sessions Judge while disposing of CMA No. 182 of 2006 filed by the Opposite Party, seeking return of the KVPs in his favour. The Opposite Party citing the aforesaid directions, submitted that none of the aforesaid directions has been complied with by the Petitioner and instead, the Petitioner went ahead and filed CMA No. 157 of 2006 before the learned trial Court (afterthe order of acquittal was passed on 26.6.2006) and the said application was rejected by the learned S.D.J.M. on 14.11.2006. Once again, the Petitioner questioned the said order of rejection in the impugned order in appeal i.e. Crl. Appeal No. 15 of 2007-08 before the learned Addl.Sessions Judge, Fast Track, Sambalpur. The learned Sessions Judge was pleased to affirm the order passed by the learned S.D.J.M. by dismissing the appeal on 14.11.2006. Once again, the Petitioner questioned the said order of rejection in the impugned order in appeal i.e. Crl. Appeal No. 15 of 2007-08 before the learned Addl.Sessions Judge, Fast Track, Sambalpur. The learned Sessions Judge was pleased to affirm the order passed by the learned S.D.J.M. by dismissing the appeal on 14.11.2006. The opposite party further stated that 14 years have lapsed since the seizure of the KVPs from his possession and since the Petitioner has not complied with any of the said directions, the revision ought not to be entertained and ought to be dismissed. 6. The scope of Section 452 Code of Criminal Procedure has been dealt with in various judgments passed by the High Court as well as the Hon'ble Apex Court and it is well settled principle of law that, if the accused is acquitted or discharged, then, the property should on general principles be restored to the person from whom it is taken and, therefore, in normal circumstances, on acquittal or discharge, the property should be returned to the person from whom it was seized N. Madhavan Vs. State of Kerala, ) The Hon'ble Supreme Court pointed out that departure fro the statutory rule of practice is not to be lightly made when there is no dispute or doubt that the property in question was seized from the custody of such accused and belonged to him. If the property seized existed in the same shape, an order of delivery to the persons who are acquitted from the trial Could be made, inasmuch as, the property having been seized from their possession and they having been acquitted in respect of that very property are entitled to return of the same. Therefore, as a normal rule, when an accused is acquitted of a criminal charge, and he claims that the property involved in the case belongs to him, or that he is entitled to the possession of the property, the proper order to be passed would be to return the property to him from whose possession it was seized. It is well settled that the only question to be considered while disposing of the property in question u/s 452 Code of Criminal Procedure is the "right to possess" and not the "ownership of the property". It is well settled that the only question to be considered while disposing of the property in question u/s 452 Code of Criminal Procedure is the "right to possess" and not the "ownership of the property". Therefore, if an accused is acquitted for the offence charged, the property ought not to be ordered to be given to the complainant and if the Court is denied to depart from the ordinary rule, then proper reason needs to be recorded for doing so. Once an accused is acquitted for the offence theft, the proper order is to direct that the property found in the possession of the accused, should be restored to him. Especially if there is no finding in the case that the said property belongs to someone else. 7. In the light of the aforesaid well settled principles of law and on perusal of the order of acquittal dated 26th June, 2006, it is clear therefrom that while the prosecution examined nine witnesses and the Defendants did not adduce any evidence, some of the charge- sheeted witnesses including the informant (present Petitioner), did not appear to give evidence in spite of repeated issue of summons and the prosecution had also failed to procure the attendance of the informant-Petitioner even though bailable warrant had been issued against him. The trial Court on examining the evidence produced by the prosecution come to hold that as regards offence u/s 379 I.P.C., none ofthe witnesses examined in the Court stated to have seen when the accused-Pawan committed theft of the cheques. Apart from this, even though cheques have marked as Ext. 2 and the Investigating Officer took specimen signature of the accused and the informant had been forwarded for comparison, no such Handwriting Expert was examined in the Court to state that the signature appearing in the cheque had been forged by the accused nor there was any evidence available on record to establish as to who presented the cheque in the bank and only because the photograph of the accused was available with the bank, no inference could be drawn that he had forged the document and produced the same in the bank for the purpose of cheating. In so far as the offences under Sections 463 and 471 are concerned, the trial Court also gave a finding that the prosecution failed to substantiate the said offences against the accused person. In so far as the offences under Sections 463 and 471 are concerned, the trial Court also gave a finding that the prosecution failed to substantiate the said offences against the accused person. Similarly, in so far as offences under Sections 419 and 420 I.P.C. are concerned, on an analysis of the evidence produced by the prosecution, the trial Court concluded that the prosecution evidence is silent regarding the role of the accused person in preparation of any forged document or cheated by the informant and also took note of the fact that the name of one Binod Gupta which appeared on the bank records and in whose favour the alleged transaction had been made had not been produced by the prosecution for examination in the Court. Therefore, in conclusion, the trial Court concluded that the accused was not guilty on any of the offence for which he charged and, therefore, acquitted u/s 248(1) Code of Criminal Procedure 8. In the light of the finding of the trial Court as noted hereinabove, it clearly shows that no case has been made out by the Petitioner (informant) in order to convince this Court to depart from the ordinary rule. The ordinary rule is that in normal situation on acquittal or discharge, the property should be returned to the person from whom it was seized. Apart from the above, it appears from the impugned order passed in appeal that the present Petitioner has not complied with the interim directions dated 12.12.2001 nor the judgment dated 26.6.2006 after conclusion of the trial passed by the learned S.D I M., Sambalpur directing cancellation of zima and return of documents to the person from whom it was seized nor complied with the direction of the learned Sessions Judge passed in Crl. Revision No. 8 of 2007 directing return of the said KVPs in favour of the opposite party. In this view of the matter, the belated attempt made by the Petitioner to raise this contention by way of filing CMA No. 175 of 2006 before the trial Court and carrying appeal before the Addl.Sessions Judge, FTC, Sambalpur vide impugned order dated 24.3.2009 under Annexure-1, is wholly misconceived. In this view of the matter, the belated attempt made by the Petitioner to raise this contention by way of filing CMA No. 175 of 2006 before the trial Court and carrying appeal before the Addl.Sessions Judge, FTC, Sambalpur vide impugned order dated 24.3.2009 under Annexure-1, is wholly misconceived. In so far as Annexure-3 (purported affidavit of O.P.) and 4 (purported settlement) are concerned, the trial Court, in my considered view, has rightly noted that the said documents not being part of the trial and not being admitted by the accused-opposite party could not be relied upon. 9. Apart from the above, the Petitioner has placed reliance on the affidavit stated to have been filed by the Petitioner and his wife before the District Consumer Redressal Forum, Kalahandi in which he stated that the KVPs in his name and that of his wife have been lost in fire. The Opposite Party No. 2 who argued in this case in person while admitting before this Court that the said factum of burning of the KVPs as noted therein was incorrect but he was under total confusion the fact that as to where the seized documents were available on the said date. In such circumstance, he made the aforesaid statement though false in order to obtain duplicate copies thereof. In this respect, although what Opposite Party No. 2 states, cannot be accepted since it is the responsibility of every party to make truthfull and honest affidavits before all judicial and quasi judicial forums, yet in the present revision, challenge has been made to the order in appeal passed by the learned Addl. Sessions Judge, Fast Track, Sambalpur. Yet, the Petitioner is guilty for not having complied with the direction dated 12.12.2001 passed by the trial Court directing the informant to return the documents to the Court and also not complying with the directions contained in the order of acquittal passed in the conclusion of the trial by the learned S.D.J.M. whereby, he had directed return of the documents to the person from whom seizures had been effected. Most importantly, the Petitioner did not even comply with the orders passed by the learned Sessions Judge in Crl. Revision No. 8 of 2007, where clear direction had been issued to the Petitioner vide order dated 21.2.2007 to handover the KVPs in favour of Opposite Party No. 2. Most importantly, the Petitioner did not even comply with the orders passed by the learned Sessions Judge in Crl. Revision No. 8 of 2007, where clear direction had been issued to the Petitioner vide order dated 21.2.2007 to handover the KVPs in favour of Opposite Party No. 2. It is equally important to note herein that no challenge whatsoever has been made to the aforesaid order and therefore, any subsequent attempt to re-agitate the self-same issue by filing an application u/s 452 Code of Criminal Procedure before the trial Court and rejection of the said application by the trial Court thereafter is no longer germane. 10. The order passed in Criminal Revision No. 8 of 2007 passed by the learned Sessions Judge having not been challenged has attained finality and the non-compliance by the Petitioner as noted herein above, clearly indicates totally callousness shown by the Petitioner thereby disentitling him from any relief. Accordingly, I find no merit in the present Criminal Revision and the same stands dismissed with direction to the trial Court to ensure that the K.V.Ps which had been seized from the Petitioner in course of the investigation by the police, are obtained from the zima of the informant and handover the same to Opposite Party No. 2 within a period of one month from the date of receipt of certified copy of this order.