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2013 DIGILAW 44 (SIK)

Nilam Namgyal (Neelam) v. State of Sikkim

2013-11-20

N.K.JAIN

body2013
JUDGMENT N.K. JAIN, J. 1. Heard learned counsel for the parties. 2. The petitioners have approached this Court by way of this writ petition, wherein they have made the following prayers:- (a) To direct the Respondent No. 1 to refund the amount deposited by the Petitioners along with interest @ 20% per month to be calculated on and from the date mentioned in the respective money receipts of the Petitioners and their family members and friends issued by Respondent No. 2. (b) To pass any other directions, reliefs, orders that may be deemed fit and proper by this Hon’ble Court in the circumstances of this case. (c) To allow the costs of the present Petition. 3. A notice to show cause was issued to respondents. In pursuance thereof, respondent No. 1 has filed a written report dated 31.10.2013. So far as respondent No. 2 is concerned, the learned counsel appearing on behalf of respondent No. 2 submitted that he does not want to file any counter affidavit at this stage, as the present writ petition itself is not maintainable, and he may be allowed to argue the writ petition without any counter affidavit. He further submitted that if the writ petition is admitted, then he will file the counter affidavit. 4. Learned counsel for the petitioners submitted that the petitioners are depositors, who deposited the amount with respondent No. 2. A criminal case was instituted against respondent No. 2, however, he was acquitted and a direction was given by a Criminal Court to the District Magistrate, South Sikkim at Namchi to constitute a Committee to return the amount to the rightful claimants. He further submitted that the petitioners are the rightful claimants and they have approached the learned District Magistrate, but he has not returned the amount to them. Therefore, a direction is required to be given to respondent No. 1 to return/refund the entire amount. 5. Mr. J.B. Pradhan, learned Public Prosecutor has submitted that no such direction, as argued by learned counsel for the petitioners, has been issued by the Criminal Court in the case relating to the petitioners. Therefore, neither any amount was deposited with the District Magistrate nor he is bound to refund the amount to the petitioners. 5. Mr. J.B. Pradhan, learned Public Prosecutor has submitted that no such direction, as argued by learned counsel for the petitioners, has been issued by the Criminal Court in the case relating to the petitioners. Therefore, neither any amount was deposited with the District Magistrate nor he is bound to refund the amount to the petitioners. He also submitted that the respondent No. 1 has already filed a written report before this Court on 31.10.2013 and as per report, the amounts, which were seized in G.R. Case No. 102 of 2007, have already been refunded to the concerned depositors. So far as the petitioners are concerned, they are not depositors in G.R. Case No. 102 of 2007, therefore, they are not entitled to receive any amount from the District Magistrate as per the directions of the Court of Chief Judicial Magistrate, East & North Sikkim at Gangtok in G.R. Case No. 102 of 2007. 6. Mr. Pradhan, learned Public Prosecutor also submitted that there were two different criminal cases, first is G.R. Case No. 81 of 2006 and the second is G.R. Case No. 102 of 2007. The so called direction, as submitted by learned counsel for the petitioners, was issued in G.R. Case No. 102 of 2007 and not in G.R. Case No. 81 of 2006. He, therefore, submitted that in the facts and circumstances of the present case, the petitioners are not entitled to any relief as prayed in the present writ petition. 7. Learned counsel for respondent No. 2 submitted that this writ petition is not maintainable as no direction can be issued regarding the refund of the amount without establishing a fact that the petitioners are rightful claimants to receive the amount. He also submitted that, whether the petitioners are rightful claimants or not is a question of fact. The respondent No. 2 is disputing the rightful claims of the petitioners. Therefore, it is a disputed question of fact, which cannot be and should not be allowed by this Court to be agitated in this writ petition under Article 226 of the Constitution of India. The respondent No. 2 is disputing the rightful claims of the petitioners. Therefore, it is a disputed question of fact, which cannot be and should not be allowed by this Court to be agitated in this writ petition under Article 226 of the Constitution of India. He also submitted that as per averments in the writ petition, the petitioners are depositors of the amount, in G.R. Case No. 81 of 2006, wherein the learned Chief Judicial Magistrate, East and North Sikkim at Gangtok, while acquitting the accused, has not passed any direction for refund of the amount . He also submitted that the order of acquittal in G.R. Case No. 81 of 2006 was passed way back on 30.09.2008 and the present writ petition has been filed in the year 2013 and, therefore, it is liable to be dismissed on the ground of inordinate delay and laches in filing the writ petition. He, therefore, submitted that there is no merit in the writ petition and it may be dismissed. 8. I have considered the submissions of the learned counsel for the parties. During the course of arguments, various other objections have also been raised by the learned counsel for respondents No. 1 and 2. Learned counsel for the petitioners, faced with the objections of the respondents submitted that he may be permitted to withdraw this writ petition with liberty to file an application before the Court of Chief Judicial Magistrate, East and North Sikkim at Gangtok, to move necessary application for necessary directions or for refund of the amount to the petitioners, as the case may be, in accordance with law. 9. Learned counsel for respondents No. 1 and 2, both have no objection in allowing the petitioners to approach the Court concerned for necessary directions in accordance with law. 10. In view of the above discussions and prayer made by the learned counsel for the petitioners, the writ petition is dismissed as withdrawn with liberty as prayed for.