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Madhya Pradesh High Court · body

2013 DIGILAW 1553 (MP)

Birbal Adiwasi v. State of M. P.

2013-12-13

SUJOY PAUL

body2013
ORDER 1. In this petition filed under section 482 of CrPC, the petitioner has prayed for setting aside the impugned order Annexure P-1 dated 18.7.2013. It is prayed that the amount in question be given to the petitioner. The relevant facts are as under:- 2. The petitioner is a member of Scheduled Tribe Community (Saharia). The petitioner’s agricultural land was situated in village Gatwaya, District Shivpuri. The aforesaid land of petitioner was required for the purpose of extension of Madhav National Park, Shivpuri, which is a reserve wild life sanctuary. The petitioner’s land was acquired by the State Government as per Land Acquisition Act. In lieu of acquisition, the petitioner was given Rs. ten lakhs as compensation which petitioner intended to use for rehabilitation. A cheque of Rs.10,00,000/- was given to the petitioner by the A.D.M. Shivpuri. It is contended by Shri Raju Sharma that petitioner is a rustic, poor and illiterate person, therefore, he was not acquainted with the procedure of opening the bank account. Therefore, in good faith, petitioner requested the accused Brijendra Gurjar to help him to open the bank account. It is contended that accused Brijendra Gurjar and his associate Rahul Jain obtained required documents from the petitioner for opening the account and it was opened by them in Syndicate Bank Branch, Shivpuri. After opening the account, the cheque of Rs. 10,00,000/- aforesaid was deposited by the petitioner through accused Brijendra Gurjar in the aforesaid account. At the time of aforesaid process, the accused Brijendra Gurjar and Rahul Jain got petitioner’s thumb impressions on certain papers. The petitioner put his thumb impression as desired by Brijendra Gurjar in good faith. 3. It is contended that after depositing the cheque, the accused Brijendra Gurjar and Rahul Jain told the petitioner that the amount of aforesaid cheque would be realized in 3-4 days and they will inform the date to the petitioner. The petitioner believed the said statement and when after waiting for a considerable long time, no information about the said amount is received by the petitioner, he again contacted the accused. They did not give any satisfactory reply. This create doubt in the mind of the petitioner and, therefore, he obtained duplicate pass book of his account and enquired about the said cheque of Rs.10,00,000/-. The bank informed that on 30.4.2013 the amount of Rs. They did not give any satisfactory reply. This create doubt in the mind of the petitioner and, therefore, he obtained duplicate pass book of his account and enquired about the said cheque of Rs.10,00,000/-. The bank informed that on 30.4.2013 the amount of Rs. 10,00,000/- has been transferred from petitioner’s account to the account of Brijendra Gurjar and the said Gurjar has withdrawn the entire amount of Rs.10,00,000/- 4. The petitioner, upon receiving this information, preferred a complaint to the Collector, Shivpuri. The Collector, Shivpuri referred the matter to S.P. Shivpuri. The S.P.Shivpuri, in turn, directed the concerned police station to register a case under sections 420 and 467 of IPC read with certain sections of S.C/S.T. (Prevention of Atrocities), Act. The same was registered vide Crime No. 346/2013. It is contended that during investigation amount of Rs.9,00,000/- were recovered from the house of accused Brijendra Gurjar on his disclosure. The said amount was seized by the police from accused Brijendra Gurjar. After recovery of the said amount, the petitioner preferred an application under section 451 r/w 457 CrPC before the Court of JMFC, Shivpuri. A copy of said application is filed as Annexure P-4. The JMFC by order dated 24.6.2013 rejected the said application. Against that, the petitioner preferred Criminal Revision No. 64/13 before the Sessions Court, Shivpuri. The said Court by impugned order (Criminal Revision No. 64/13) rejected the said prayer. 5. Shri Raju Sharma, learned counsel for the petitioner, submits that the Court below has erred in not releasing the said amount. 6. The prayer was opposed by Shri R.K.Awasthi, P.P. on the ground that if at the end of trial it is proved that the seized amount belongs to accused, it will be difficult to recover it from the petitioner. He supported the impugned order. 7. I have heard the learned counsel for the parties and perused the record. 8. The learned JMFC opined that whether the amount in question belongs to the petitioner or not can be decided only after recording evidence. During the course of recording evidence, the said amount may be required to prove the case of the prosecution. It is further held that if the said amount is ultimately found to be of somebody else, it will be difficult to recover it from the present petitioner. During the course of recording evidence, the said amount may be required to prove the case of the prosecution. It is further held that if the said amount is ultimately found to be of somebody else, it will be difficult to recover it from the present petitioner. The revisional Court in para 9 of its finding has recorded that there is no dispute about the ownership of the said amount. Rs.10,00,000/- was deposited by cheque in petitioner’s account. Petitioner has received this amount as compensation in lieu of his land. This amount was transferred by Brijendra Gurjar in his own account. The revisional Court gave further finding that the amount was transferred from petitioner’s account by the accused and for this the petitioner preferred application. 9. The whole case of prosecution is based on documentary evidence and, therefore, there is no need to produce the currency notes for the purpose of evidence. In para 12 also, the revisional Court has given the same finding. In para 13, the revisional Court opined that prima facie it is clear that Rs.10,00,000/- was transferred from petitioner’s account pursuant to application of accused. The Court gave a finding that prima facie it can be presumed that the seized amount of Rs. 9 lakhs is the same amount which is transferred from the account of the petitioner to the account of accused. However, despite giving this finding, the revisional Court did not release the amount on the ground that if amount is ultimately found to be belonging of somebody else, it will be difficult to recover it from the petitioner. 10. In the considered opinion of this Court, the Courts below have erred in not exercising the jurisdiction vested in them under sections 451 and 457 of the CrPC The revisional Court has recorded that the petitioner is a poor rustic and illiterate Adiwasi. He needs this amount for his rehabilitation, but deferred the release of amount and directed for depositing this amount in a nationalized bank. In Sunderbhai Ambalal Desai v. State of Gujarat, 2003(II) MPWN 1, the apex Court held that if material on record indicates that such material belongs to complainant, that seized article be handed over to the complainant after fulfilling certain formalities as mentioned in para 12 of the said judgment. In Sunderbhai Ambalal Desai v. State of Gujarat, 2003(II) MPWN 1, the apex Court held that if material on record indicates that such material belongs to complainant, that seized article be handed over to the complainant after fulfilling certain formalities as mentioned in para 12 of the said judgment. In para 14 of the judgment it was held that for currency note also same procedure may be followed which is mentioned in the earlier paragraphs of the said judgment. 11. Considering the aforesaid, in the opinion of this Court, the Courts below have erred in not releasing the said amount in favour of the petitioner. Neither the accused, nor anybody else has claimed that amount. Both the Courts were satisfied that prima facie the amount in question belongs to the petitioner. The petitioner is a rustic illiterate villager. His land is acquired by the Government and in lieu thereof he received compensation. If this compensation amount is not given to him, it will be difficult for him to keep his body and soul together in the present days of price hike. In my opinion, it will be travesty of justice if this amount is not given to the petitioner. 12. Shri Raju Sharma, during the course of argument, submits that this Court may direct for depositing solvent surety by the petitioner for the amount in question and petitioner will do the needful. In view of this statement, the only apprehension expressed by the revisional Court also does not survive. 13. Resultantly, this petition deserves to be allowed. Thus, following the judgment of Sunderbhai (supra), this petition is allowed. The Court below is directed to release the amount of Rs. 9,00,000/- to the petitioner on depositing solvent surety of the like amount by the petitioner. 14. Petition is allowed to the extent indicated above.