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Himachal Pradesh High Court · body

2012 DIGILAW 759 (HP)

State of Himachal Pradesh v. Anil Talwar

2012-10-30

KULDIP SINGH

body2012
Judgment Kuldip Singh, Judge 1. This petition has been filed against the order dated 23.4.2012 passed by learned Sessions Judge, Sirmaur District at Nahan in Criminal Revision No. 17-Cr.R./10 of 2011 reversing order dated 18.7.2011 passed by learned Judicial Magistrate 1st Class, Court No.1, Paonta Sahib in Cr.Misc. Application No. 317/4 of 2011. 2. On 18.4.2011 Rohit Kothal and Nitish Joshi while going to Dehradun via Paonta Sahib from Haryana were searched at Behral Barrier, Paonta Sahib by the Police and from their personal search currency notes worth ` 30 lacs were recovered, both of them were arrested under Sections 41, 109 Cr.P.C. The Sub Divisional Magistrate, Paonta Sahib dropped the proceedings against both Rohit Kothal and Nitish Joshi vide order dated 11.5.2011. The police produced currency notes before the Executive Magistrate, who ordered seizure of the same under Section 102 Cr.P.C. The police after lapse of one month approached the court for initiating proceedings under Section 102 Cr.P.C. 3. Rohit Kothal and Nitish Joshi moved an application for releasing the currency notes recovered from them which was dismissed by learned Judicial Magistrate 1st Class, Court No.1, Paonta Sahib on 16.6.2011. The respondent on 17.6.2011 moved an application for releasing ` 30 lacs to him on the ground that Rohit Kothal and Nitish Joshi at the time of search disclosed to the police that they were carrying money which belonged to respondent as they had received the money from third parties on behalf of the respondent. The police did not believe Rohit Kothal and Nitish Joshi as they were not having any documentary proof in support of their contention. Rohit Kothal and Nitish Joshi were in lawful custody of currency notes of ` 30 lacs under instructions of respondent rightful owner of currency notes. 4. It was stated in the application that respondent had sold five plots to different parties vide registered sale deeds No. 201, 202, 203, 204 and 206 all dated 7.2.2011 at Dehradun for sale consideration of ` 6,75,000/- each. The respondent received sale consideration of ` 75,000/- in cash and cheque of ` 6,00,000/- from each of the vendee. The understanding between the respondent and each vendee was that on payment of ` 6,00,000/- in cash, the cheque would be returned. Rohit Kothal and Nitish Joshi had received ` 30 lacs from the vendees on behalf of the respondent. 5. The understanding between the respondent and each vendee was that on payment of ` 6,00,000/- in cash, the cheque would be returned. Rohit Kothal and Nitish Joshi had received ` 30 lacs from the vendees on behalf of the respondent. 5. The application was contested by the petitioner by filing reply. In the reply it has been stated that ` 30 lacs were recovered from Rohit Kothal and Nitish Joshi, who were arrested. The source of money was not disclosed by Rohit Kothal and Nitish Joshi. The Sub Divisional Magistrate was seized of the matter, therefore, proceeding under Section 102 Cr.P.C. could not be initiated and proceeding under Section 102 Cr.P.C. was initiated after conclusion of proceeding before Sub Divisional Magistrate. Rohit Kothal and Nitish Joshi had no title over the money. 6. The learned Judicial Magistrate on 18.7.2011 refused to release the amount to respondent and observed that the respondent has failed to prove the source of money and also failed to prove that he was entitled to receive and possess the amount. The learned Sessions Judge on 23.4.2012 allowed the revision of the respondent, set-aside the order dated 18.7.2011 and ordered release of currency notes worth ` 30 lacs to respondent subject to his furnishing indemnity bond equal to the amount of ` 30 lacs alongwith accrued interest, hence petition on the grounds that the impugned order is based upon surmises and conjectures. The impugned order is against the facts and law. The learned Sessions Judge has committed grave error which has caused miscarriage of justice. The respondent could not establish lawful possession of the currency notes worth ` 30 lacs. The identity of person claiming money has not been established. The money was not recovered from the respondent. As per the sale deeds, the money was already received by the seller. The learned Sessions Judge has erred in setting aside the order dated 18.7.2011. 7. Heard and perused the record. There is no denial that currency notes worth ` 30 lacs were recovered from Rohit Kothal and Nitish Joshi on 18.4.2011 at Behral Police Barrier when they were checked by the police while entering Paonta Sahib on their way to Dehradun. The police took action under Sections 41, 109 Cr.P.C. but proceedings were dropped against Rohit Kothal and Nitish Joshi by the Sub Divisional Magistrate, Paonta Sahib on 11.5.2011. The police took action under Sections 41, 109 Cr.P.C. but proceedings were dropped against Rohit Kothal and Nitish Joshi by the Sub Divisional Magistrate, Paonta Sahib on 11.5.2011. Rohit Kothal and Nitish Joshi moved an application for releasing the amount of ` 30 lacs to them but their application was rejected by the learned Judicial Magistrate 1st Class, Court No.1, Paonta Sahib on 16.6.2011. Thereafter, the respondent moved an application for releasing ` 30 lacs to him on the ground that he was legally entitled to hold and possess ` 30 lacs, Rohit Kothal and Nitish Joshi on 18.4.2011 at the time of recovery of amount by the police were holding ` 30 lacs on behalf of the respondent. 8. In the record of the trial Court there are copies of sale deeds No. 201, 202, 203, 204 and 206. In the sale deeds, the respondent is the vendor but vendees are different. In each sale deed, the property has been sold by the respondent to the vendee for a consideration of ` 6,75,000/-. It has been contended on behalf of the petitioner that in each sale deed there is a recital that the vendor has received the entire sale consideration. It has been submitted on behalf of the respondent that in fact respondent had received ` 75,000/- in cash and ` 6,00,000/- by way of cheque against each sale deed. The understanding between the vendor and each vendee was that the vendee would pay ` 6,00,000/- in cash, thereupon the vendor would return the cheque, each vendee paid ` 6,00,000/- in cash which was collected by Rohit Kothal and Nitish Joshi on behalf of the respondent and they were going to Dehradun for handing over ` 30 lacs to the respondent. 9. The recital in the sale deed that vendee has received the entire consideration amount is not conclusive proof in support of correctness of the recital. In the revision affidavits of Shivraj Kundu, Ved Pal, Rohit Kundu, Rakesh Arya and Rajesh Mann vendees of sale deeds No. 201, 202, 203, 204 and 206 respectively have been placed on record. In the affidavits it has been stated that they had paid ` 75,000/- in cash and handed over cheque of ` 6,00,000/- to Anil Talwar. The payment through cheque was to be made after two months. In the affidavits it has been stated that they had paid ` 75,000/- in cash and handed over cheque of ` 6,00,000/- to Anil Talwar. The payment through cheque was to be made after two months. Anil Talwar had sent Rohit Kothal and Nitish Joshi and each vendee paid ` 6,00,000/- out of the sale consideration to them. The money so apprehended by the police on 18.4.2011 was paid by vendees to Rohit Kothal and Nitish Joshi. 10. The Section 102 (1) Cr.P.C. provides that any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. The petitioner in the reply before learned Judicial Magistrate has not taken the plea that the currency notes seized from Rohit Kothal and Nitish Joshi were alleged/suspected to have been stolen or were found under circumstances which creates suspicion of the commission of any offence. The proceeding under Sections 41, 109 Cr.P.C. has already been closed by the Sub Divisional Magistrate, Paonta Sahib on 11.5.2011. Thus, there is no foundation for seizing of ` 30 lacs by the police from Rohit Kothal and Nitish Joshi on 18.4.2011. 11. There is substance in the contention of the respondent that even till now no other person except the respondent has claimed the amount taken into possession by the police from Rohit Kothal and Nitish Joshi on 18.4.2011. Rohit Kothal and Nitish Joshi moved an application for release of the amount on the ground that the money was recovered from them but the learned Judicial Magistrate did not release the amount to them, but this does not mean that the respondent is not entitled to the amount of ` 30 lacs recovered by police from Rohit Kothal and Nitish Joshi. 12. There is enough material on record that respondent had sold his properties to various vendees vide sale deeds No.201, 202, 203, 204 and 206 for a sale consideration of ` 6,75,000/- each. He had received 3,75,000/- in cash from the vendees at the time of registration of the sale deeds and balance amount of ` 30 lacs was paid to respondent by the vendees through Rohit Kothal and Nitish Joshi. The learned Sessions Judge has recorded a finding of fact which has not been shown to be perverse. There is no error of jurisdiction. The learned Sessions Judge has recorded a finding of fact which has not been shown to be perverse. There is no error of jurisdiction. The view taken by the learned Sessions Judge emerges from the material on record. There is no merit in the petition which is accordingly dismissed.