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2023 DIGILAW 616 (RAJ)

Suresh Kumar Dhaka, S/o. Sardara Ram v. State

2023-02-27

ASHOK KUMAR JAIN

body2023
ORDER : 1. The present petition has been preferred by the petitioner Suresh Kumar Dhaka being aggrieved by the order dated 30.07.2018 passed by the learned Additional Chief Judicial Magistrate, Makrana whereby the machinery seized in connection with FIR No.82/2017, Police Station Makrana, District Nagaur was released in favour of respondent No.3-complainant. 2. Facts necessary for disposal of the instant Misc. Petition are that respondent No.3-complainant lodged an FIR alleging inter alia that he and Rajendra Singh executed an agreement for taking a mine on lease owned by Bhanwar Kanwar and Ritendra Kanwar for a period of ten years thus a written contract was executed between them on 28.08.2012. After execution of the said contract, heavy investment on purchase of equipments, vehicles and other needed things were made to carry out the mining operation. Merely, after five years of the said deed, due to certain dispute between Rajendra Singh and Bhanwar Lal, so they executed an agreement dated 26.06.2016 to set apart from each other whereby respondent No.3-complainant relinquished his interest for a consideration of amount totaling to Rs.1.01 crore. Under the said agreement, Rs.50 lacs was paid in front by Rajendra Singh and balance amount of Rs.51 lacs was agreed to be paid later on. Thereafter, on the basis of certain alleged events, a police report under Sections 420, 406 and 120B of the IPC was filed by the respondent No.3, upon which Rajendra Singh approached this Court for quashing of FIR No.82/2017 registered at the Police Station Makrana, District Nagaur on the ground that complainant had voluntarily opted to quit from the joint business and Rajendra Singh has absolute right over the mine and equipment installed thereupon. Thus, the case set up by a complainant in FIR for alleged offences regarding fraud and breach of trust by disposing the machinery etc. is absolutely untenable. This Court vide order dated 17.02.2018 has allowed the S.B. Criminal Misc. Petition No.1119/2017 resulting which FIR and all the proceedings subsequent thereto were ordered to be quashed and set aside on the ground that the same amounts to abuse of process of law. 3. After passing of said order dated 17.02.2018, the SHO, Police Station Makrana Shri Goma Ram submitted a report with a request to the learned trial Court to pass order for disposal of LT Machine No.NL0375M-12, 2010 PC Modal 2012 which was seized during investigation. 3. After passing of said order dated 17.02.2018, the SHO, Police Station Makrana Shri Goma Ram submitted a report with a request to the learned trial Court to pass order for disposal of LT Machine No.NL0375M-12, 2010 PC Modal 2012 which was seized during investigation. Thereafter, the present petitioner Suresh Dhaka, Rajendra Kumar and respondent No.3-complainant Bhanwar Lal filed different applications to claim and disposal of seized machine in their favor. The same were disposed vide order dated 30.07.2018, whereby the seized machine was ordered to be handed over to respondent No.3-complainant Bhanwar Lal. 4. Learned counsel for the petitioner would submitted that aforesaid machinery was purchased from Ramchandra Gurjar, who purchased it from Rajendra Singh and both sale letters to this effect were placed on record to support his contention. He would submitted that agreement dated 26.02.2016 clearly indicates that respondent No.3-complainant has relinquished his rights over the mining lease and also towards equipment and machinery. He would submitted that mere non-payment of Rs.51 lacs does not create any right in favour of respondent No.3 to obtain possession of the aforesaid machinery from trial Court and the trial court has committed a serious error in passing the order for handing over the machinery to respondent No.3. He would submitted that Hon’ble Court has quashed the FIR with all subsequent proceedings initiated thereunder and in furtherance of the same the machinery/ equipment seized during investigation from present petitioner have to be returned to the present petitioner by the Court below and police. He would submitted that Hon’ble Court has considered the entire facts on merits and opined that the dispute between respondent No.3 Bhanwar Lal and Rajendra Singh is of civil nature, thus, no criminal act was done by later. He would submitted that the seizure memo indicates that aforesaid machine was seized from a firm owned by present petitioner hence, he is entitled for release of seized equipment/machinery. 5. Learned counsel for the respondent No.3-complainant would submitted that the aforesaid equipment was purchased by the respondent No.3 and entire bank loan was deposited by him only. Moreover, a no objection certificate to this effect was obtained by him from the concerned Bank to secure the possession of the aforesaid seized machinery/equipment on the ground of ownership. 5. Learned counsel for the respondent No.3-complainant would submitted that the aforesaid equipment was purchased by the respondent No.3 and entire bank loan was deposited by him only. Moreover, a no objection certificate to this effect was obtained by him from the concerned Bank to secure the possession of the aforesaid seized machinery/equipment on the ground of ownership. He would further submitted that the trial Court has already applied its mind in passing the detailed order after hearing the parties concerned, and the same was handed over to respondent No.3, who was legally entitled to receive the aforesaid equipment/machinery under the agreement. He would submitted that under the agreement dated 26.02.2016, Rajendra Singh was not having any right to dispose of any machinery or other equipment without consent of respondent No.3 Bhanwar Lal and any act of sale would be a breach of agreement dated 26.02.2016. He would submitted that present petitioner has no locus to get possession of the machinery/equipment in question. At last he would submitted that the present petition filed by the petitioner is not maintainable. 6. Aforesaid contentions advanced by learned counsel for the petitioner are vehemently opposed by the learned Public Prosecutor. 7. Heard Ld. Counsels for the parties and perused the material available on record. 8. In S.B. Criminal Misc. Petition No.1119/2017, a Coordinate Bench of this Court, while dealing with the material leading to registration of FIR No.82/2017 and further proceeding as brought before this Court, while deciding the said petition opined that no criminal motive or mens-rea can be attributed to Rajendra Singh by his act of selling the equipment etc., if any. Otherwise also, the ownership thereto has been vested with him from the date of agreement dated 26.02.2016 which was executed between Bhanwar Lal and Rajendra Singh. This Court further observed that the allegations levelled in the FIR and material collected by the Investigating Officer during investigation is not sufficient to satisfy the Court that the intention of accused was to cheat the complainant right from inception of the contract. This Court is after recording satisfaction observed that no offence against Rajendra Singh is made out. Thus, invoking extra ordinary inherent powers conferred upon it under Section 482 Cr.P.C., quashed the FIR and subsequent proceedings terming it to be abuse of process of law. 9. This Court is after recording satisfaction observed that no offence against Rajendra Singh is made out. Thus, invoking extra ordinary inherent powers conferred upon it under Section 482 Cr.P.C., quashed the FIR and subsequent proceedings terming it to be abuse of process of law. 9. The order dated 17.02.2018 passed by this Court has attained finality and nothing survived hereinafter for consideration regarding any proceedings emanating from FIR No.82/2017, Police Station Makrana. 10. SHO Goma Ram while taking note of the order dated 17.02.2018 has recorded a conclusion that from investigation, offences under Sections 420 and 406 of the IPC were made out against Rajendra Singh S/o Bhanwar Singh. Aforesaid part of the final report was further reproduced in the order dated 12.07.2018 passed by the learned Additional Chief Judicial Magistrate, Makarana wherein it was noted that after investigation, offences under Sections 420 and 406 of the IPC were found proved against Rajendra Singh. It was further noted that during investigation, accused-Rajendra Singh preferred a Misc. Petition bearing S.B. Criminal Misc. Petition No.1119/2017 under Section 482 of the Cr.P.C. and the same was accepted on 17.02.2018 by a Coordinate Bench of this Court. 11. Perusal of the order dated 17.02.2018 passed by a Coordinate Bench indicates that after registration of the FIR, petition under Section 482 Cr.P.C. was filed before drawing any conclusion and filing a charge sheet and the same was allowed by this Court thus, there was no occasion for any of the police official to drawn a conclusion that offence under Sections 406 & 420 IPC were made out. This amounts to deliberate disrespect to this Court and that too by SHO, Police Station Makrana. 12. Herein, the process as referred herein above indicates that after acceptance of the petition, the FIR and all further proceedings undertaken in furtherance of the FIR were quashed. 13. Meaning thereby, anything which was done during investigation have to be reverted back to a situation assuming that such action was never taken place. Herein, the memo of seizure dated 12.04.2017 indicates that the said machinery/equipment was seized from M/s New Bhagwati Minerals. Two sale agreements, one executed by Rajendra Singh in favour of Ram Chandra on dated 20.07.2016 and another by Ram Chandra in favour of present petitioner are also placed on record. Herein, the memo of seizure dated 12.04.2017 indicates that the said machinery/equipment was seized from M/s New Bhagwati Minerals. Two sale agreements, one executed by Rajendra Singh in favour of Ram Chandra on dated 20.07.2016 and another by Ram Chandra in favour of present petitioner are also placed on record. The trial Court had also heard the case of the present petitioner wherein the claim as bonafide purchaser from Ram Chandra was made but the trial Court relied upon the documents which were executed way-before agreement dated 26.02.2016, thus rejected the claim of the present petitioner and so also of Rajendra Singh. After quashing the FIR, no proceedings whatsoever with respect to FIR No.82/2017 survives. Thus, there has to be a disposal of equipment/machinery in terms of Section 452 of the Cr.P.C. but the impugned order indicates that disposal order was passed in a manner as if it was interim disposal. A final disposal thoroughly depends upon the terms and conditions as provided under Section 452 Cr.P.C. 14. Hon’ble Supreme Court in the case of Naiz Ahmed Vs. State of U.P. & Anr., Criminal Appeal No. 430/1980 decided on 17.11.1993 and reported as (1993) 0 Supreme (SC) 1087, wherein the article which was auctioned and purchased by a bonafide purchaser, has ordered such articles to be returned to the accused on his acquittal. 15. Herein, quashing of FIR resulting into acquittal in form of discharge but the effect is that no criminal proceedings ever taken place. The trial Court should have released the property to the person from whom same was seized during investigation. Herein the chain of agreement further submitted to establish that the petitioner has legally received the possession of equipment/machinery and he was the best person to whom the property was to be handed over. There was no occasion to enquire regarding best entitlement or registered ownership of the equipment/ machinery. 16. The trial Court failed to appreciate the correct position of law and also the principles of criminal law for restoring the possession of the seized property, in case of quashing of proceedings. If there was any doubt with regard to ownership of the machinery/ equipment, then the trial Court, being a criminal court, have to exercise the option to ask parties/ claimants for seeking declaration from a competent Court. If there was any doubt with regard to ownership of the machinery/ equipment, then the trial Court, being a criminal court, have to exercise the option to ask parties/ claimants for seeking declaration from a competent Court. In the instant case, the trial Court is duty bound to restore the possession of seized equipment/machinery to the same individual from whom it was seized during investigation. 17. In the result, the petition is allowed. The order dated 30.07.2018 passed by the learned Additional Chief Judicial Magistrate, Makrana is quashed and set aside. It is directed to restore the possession of LT Machine No. NL0375M-12, 2010 PC Modal 2012 to the petitioner within a period of 15 days from the date of receipt of copy of this order. In case, same is not restored within timeline then the trial court shall ensure the execution of this order within a period of four weeks thereafter. The stay petition, if any, is also disposed of.