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2015 DIGILAW 2603 (BOM)

Sukhram s/o Bharat Harde v. State of Maharashtra

2015-12-15

A.B.CHAUDHARI

body2015
JUDGMENT : Being aggrieved by the Judgment and Order dated 15th December, 2006 passed by learned Judicial Magistrate First Class, Joint Court, Gondia, in Summary Criminal Case (SCC) No. 917 of 2005, by which the learned trial Judge convicted the revision applicant of offence under section 124 of the Bombay Police Act, and sentenced him to undergo imprisonment till rising of the Court for one day and to pay a fine of Rs. 500/-, in default, Simple Imprisonment for fifteen days, and the order to forfeit to the State Govt., the balance amount, namely the property in the crime in the sum of Rs. 13,64,297.00, and confirmed by learned Additional Sessions Judge, Gondia, in Criminal Appeal No. 46 of 2006, vide Judgment and Order dated 11th April, 2007, the applicant filed the present Revision Application. FACTS : 2. It was the case of the prosecution that Radheshyam Meshram, Police Sub-Inspector (PW 2), raided the house of the revision applicant along with Rajesh (PW 3) and found the cash in the sum of Rs. 24,50,000.00 in the drawer of his bed, which was seized under Exh.13 by charging the applicant of the offence under section 124 of the Bombay Police Act. The charge-sheet was filed and the summary trial was held. Relying on the evidence of Rajesh Muneshwar (PW 1), Radheshyam Meshram, Investigating Officer (PW 2) and Rajesh (PW 3), Panch witness, the Court recorded conviction under section 124 of the Bombay Police Act and made the aforesaid order. The Appellate Court in appeal dismissed the appeal preferred by the revision applicant and confirmed the Judgment and Order of the trial Judge. Hence this Revision Application. 3. In support of the Revision Application, learned counsel for the Revision Applicant invited my attention to the finding recorded by the trial Judge in para 7 of his Judgment and Order and contended that the trial Court did find that it is for the prosecution to prove the ingredients of section 124 of the Bombay Police Act, namely either stolen property or property fraudulently obtained. According to Mr. Narnaware, perusal of the evidence as well as findings recorded by the courts below shows that none of them have come to the conclusion about the property being stolen. He, therefore, submits that then what remains is the property fraudulently obtained. According to Mr. Narnaware, perusal of the evidence as well as findings recorded by the courts below shows that none of them have come to the conclusion about the property being stolen. He, therefore, submits that then what remains is the property fraudulently obtained. According to him, it is not even the case of the prosecution as to how and when the applicant obtained the property fraudulently and the only case of the prosecution is that the cash amount of Rs. 24,50,000/- was found in the house of the applicant and nothing more. According to him, there is not even an investigation on this aspect; but the courts below have recorded the conviction only on the ground that the revision applicant did not disprove that the property was not obtained fraudulently, thereby throwing the burden on the accused to disprove the case of the prosecution, when, as a matter of fact, initial burden of proof was not discharged by the prosecution. Mr. Narnaware then contended that reading of the impugned Judgments itself shows that the Income Tax Department had made an assessment order in respect of the said cash amount of Rs. 24,50,000/- and recovered tax as well as penalty in the sum of Rs. 10,85,703-00 and, therefore, obviously, the balance amount after deduction of income tax and penalty belonged to the revision applicant. But then, there is an order of forfeiture of amount to the State Govt., which cannot be supported by any provision of law. He, therefore, submitted that it is the Revision Applicant who is entitled to the balance amount of Rs. 13,64,297-00 and, thus, prayed for reversal of the Judgments of the courts below. 4. Per contra, learned Addl. Public Prosecutor Mr. Khan supported the impugned Judgment and Order and submitted that there is a concurrent finding of fact recorded by the courts below that the Revision Applicant failed to account for or give a satisfactory explanation as to how he was in possession of a cash of Rs. 24,50,000/- at his house. The prosecution having seized the cash from his house, according to Mr. Khan, it was for the accused to prove by satisfactory explanation that the said cash was earned by lawful means and not fraudulently. 24,50,000/- at his house. The prosecution having seized the cash from his house, according to Mr. Khan, it was for the accused to prove by satisfactory explanation that the said cash was earned by lawful means and not fraudulently. He, therefore, submitted that the prosecution had discharged its initial burden of proof in the wake of the admitted fact of seizure of a huge cash from the house of the applicant and, therefore, there is no such further requirement for the prosecution to prove that it was obtained fraudulently, as, taking recourse to section 106 of the Evidence Act, it is within the special knowledge of the Revision Applicant. Hence, he prayed for dismissal of the Revision Application. 5. I have perused the reasons recorded by both the courts below while recording the concurrent finding of conviction of the revision applicant. However, I am inclined to interfere with the impugned Judgments and Orders, because there is a serious error of law committed by the courts below. Then it is the duty of this Court to correct the error of law. Section 124 of the Bombay Police Act (now Maharashtra Police Act) reads thus :- "Section 124 Possession of Property of Which No satisfactory Account can be Given Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall, if he failed to account for such possession or to act to the satisfaction of the Magistrate, on conviction, be punished with imprisonment for a term which may extend to one year but shall not, except for reasons to be recorded in writing, be less than one month and shall also be liable to fine which may extend to five thousand rupees." From perusal of the above provision, it is clear that it is for the prosecution to prove that the property found or seized was, thus, a 'stolen property'. It is not even the case of the prosecution that there was any theft, robbery or dacoity and that the property stored at the house of the applicant, namely cash amount of Rs. 24,50,000/-, was out of the stolen property. Therefore, the said case is ruled out. Consequently, the submission to press section 106 of Evidence Act into service must be rejected. 6. 24,50,000/-, was out of the stolen property. Therefore, the said case is ruled out. Consequently, the submission to press section 106 of Evidence Act into service must be rejected. 6. Next ingredient is, in the absence of stolen property, that it should be a property fraudulently obtained. Fraud is defined thus :- "Word "fraud" means a criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick." Section 420 of Indian Penal Code reads thus :- "420. Cheating and dishonestly inducing delivery of property. - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, or shall also be liable to fine." 7. Perusal of the findings of the courts below and careful examination of the prosecution case and the evidence of these witnesses, namely PWs 1, 2 and 3, nowhere shows that the applicant had earned the said amount of Rs. 24,50,000.00 by playing fraud on somebody. That is not even the case, much less even the investigation. On the contrary, the plain case of the prosecution is that they got some information about stashing of a huge cash at the house of applicant and they raided the same and found cash. The Legislature has deliberately used the words 'property obtained fraudulently' in section 124 and, therefore, the courts cannot ignore the said requirement of law stated in section 124 of the Act. However, what I find is, there is not even semblance of investigation or evidence from the prosecution that the property was obtained fraudulently, much less from any particular source or out of some crime. Thus, in my opinion, even from the findings recorded by the courts below, it can safely be concluded that the prosecution had no evidence, much less legal evidence or even investigation to show that the property obtained was fraudulently obtained. 8. Thus, in my opinion, even from the findings recorded by the courts below, it can safely be concluded that the prosecution had no evidence, much less legal evidence or even investigation to show that the property obtained was fraudulently obtained. 8. However, I find from reading of the findings of the courts below that the conviction has been recorded on the ground that the Revision Applicant attempted to prove his case through a Chartered Accountant, his witness, that the applicant properly accounted for, for the said amount of Rs. 24,50,000.00 and the Court had rejected the evidence of his witness and, in my opinion, rightly. In the other words, explanation tried to be inserted by the Revision Applicant for explaining the cash before the Court has not been found satisfactory, which is a concurrent finding of fact and which I accept. But to draw a conclusion, on the basis of he not giving a satisfactory explanation, that the property was fraudulently obtained would be absurd. It would be nothing, but jumping to the conclusion on the basis of the weakness of the defence in not proving or giving a satisfactory explanation and nothing more. In such a situation, it is the Income Tax Act which comes into play and rightly, in my opinion, the Assessing Officer assessed the income tax and penalty and recovered amount of Rs. 10,85,703.00 out of the said amount which order the Revision Applicant did not challenge. In other words, having recovered the income tax and penalty as per the Income Tax Act, amount of Rs. 13,64,297.00 was the balance amount which the Revision Applicant was legally entitled to. I, thus, find that the conviction of the Revision Applicant for not explaining or satisfactorily explaining custody of Rs. 24,50,000/- is contrary to the Criminal Jurisprudence, namely that the defence cannot be expected to prove that the applicant did not obtain the amount fraudulently. In fact, it was for the prosecution to prove that the applicant had obtained the amount fraudulently in which the prosecution miserably failed. The net result of the discussion is that conviction of the Revision Applicant must be held to be illegal. 9. The next aspect is about the orders made by the Magistrate as well as the Appellate Court to forfeit the balance of Rs. 13,64,297.00 to the Govt. Those orders must have been made towards the final disposal of the property. The net result of the discussion is that conviction of the Revision Applicant must be held to be illegal. 9. The next aspect is about the orders made by the Magistrate as well as the Appellate Court to forfeit the balance of Rs. 13,64,297.00 to the Govt. Those orders must have been made towards the final disposal of the property. But then there is no basis for making such an order, particularly because the seized amount became Income Taxpaid and consequently, the Revision Applicant automatically became entitled to the balance amount. I, therefore, think that the order directing forfeiture of the amount of Rs. 13,64,297.00 to the Govt., cannot be countenanced and must be set aside with a further direction to pay the said amount to the Revision Applicant. 10. It is true that the amount was seized in the year 2005 and is lying with the Govt., for over a decade. However, there is no case made out for granting interest on the said amount looking to the manner in which the amount was stored in the house of the applicant. The applicant is said to have been doing his business as RTO Agent in the offices of R.T.Os. It is a matter of anxiety and concern that the Department of RTO has RTO agents and then the result is the sordid state of affairs like the one in this case is being seen. It is better to stop here and to proceed to make the following order :- ORDER (a) Criminal Revision No. 128 of 2007 is allowed. (b) Rule is made absolute in terms of Prayer Clauses (i) and (ii). (c) The State Govt., is directed to make a refund of Rs. 13,64,297-00 (rupees thirteen lakhs sixty-four thousand two hundred and ninety seven only) to the Revision Applicant only within a period of eight weeks from today, and, in default, shall pay interest at the rate of seven per cent till the actual payment is made to the Applicant.