S RAJENDRAN Vs. K A S RAMA APPASWAMY

JUDGEMENT

(1.) The Petitioner who is the accused before the trial Court has challenged the order dated 16-3-1981 passed by the Chief Metropolitan Magistrate, Bangalore City, in P.C.R. No. 13/1981 directing the release of the property seized, in his favour but attaching certain conditions for such a release.

(2.) A private complaint under S. 200 Cr.P.C., was filed against the accused for offences under sections 380, 406 and 506 read with S. 34, I.P.C. by the complainant, who is respondent 1 herein. The case made out against the accused is that there was an agreement, dated 10-1-1981, that he should supply cotton for spinning yarn and that the accused has violated the terms of the agreement and on that account the complainant requested the accused not to proceed with the spinning of the cotton. But, however, the accused is trying to remove the said property and dispose of the same with ulterior motive and the value of the said cotton was about Rupees 1,20,000/-. On those allegations the complainant lodged a complaint stating that the accused has committed offence of not only misappropriation but also cheating. The Magistrate referred the matter to the police, for investigation and report, under S. 156(3) Cr.P.C., who after investigating the case said to have filed a 'B' report. It is at that stage that the complainant, the accused and one Himiji Hirjee Cheda a partner of M/s. J. K. Cotton Company, Cotton merchants. Bombay who is said to have supplied the cotton to the complainant, filed applications purporting to be one under section 457, Cr.P.C. for possession of the cotton seized in the case, It may, however, be mentioned at this stage that the police seized the cotton which is the subject matter of dispute during investigation and did not produce the same before Court. It is in respect of the said cotton that all the three aforesaid filed applications for being ordered to be delivered to their possession on the ground that each one of them are entitled to be in possession of the same. As could be seen from the impugned order that the claim of each of the applicants was supported by documents and the learned Magistrate after hearing the parties came to the conclusion that accused is entitled to be in possession of the same on the sole ground that the property was seized from him during, investigation. Under those circumstances the learned Magistrate proceeded to pass an order releasing the cotton in favour of accused on certain conditions. The accused aggrieved by the conditions so attached to the order, has challenged the same on the ground that those conditions cause great hardship to him and that they are not feasible under the present circumstances.

(3.) Sri Abdul Wajid Khan contended of among other grounds that the order attaching conditions to the release of the property in question cannot be sustained. Elaborating his contention what he submitted was that the condition asking the accused to furnish bank guarantee or to produce cash security to the Court is not feasible and he also submitted that such a condition cannot be attached as the same would work out very hardship on him. But, however, Srinivasa Iyer, the learned counsel for the complainant urged that the condition attached to the order of release in favour of the accused is justified taking into consideration that accused himself has committed the offences punishable under sections 406 and 420 IPC.