DHARA SINGH Vs. STATE

JUDGEMENT

(1.) THIS Revision raises a very interesting point. . Opposite party no. 2 (Banshi Lal) is a business man of Bareilly and runs a saop factory there. On tie night of 15/16-3-1976 a theft was committed at his factory wherein he lost money in cash to the tune of Rs. 32,800/-. Opposite party No. 2 reported the matter to the police. Applicant no. 1 (Dhara Singh) worked in his factory as an employee and his suspicion fell upon him because soon after the theft in question he absented himself from duty. The police arrested applicant no. 1 on 1-9-76 at Qutubkhana crossing and allegedly recovered Rs. 20,141/- from a brief case which he was carrying. He was then sent up to stand his trial under section 411 IPC. The trial court finding the case proved against the applicant convicted him under section 411 IPC and sentenced him to two years' RI while so convicting him the trial court further ordered that the amount of Rs. 20,141/- recovered from the possession of applicant no. 1 shall be returned to opposite party no. 2. Applicant no. 1 felt aggrieved with the order passed by the trial court and he, therefore, went up in appeal. His appeal was heard by Sri J. D. N. Shahi, Sessions Judge, Bareilly. The learned Sessions Judge allowed the appeal and acquitted applicant no. 1 of the charge levelled against him. He, however, passed no order in regard to the disposal, of Rs. 20,141/-which had been released! in favour of opposite party no. 2 by the trial court.

(2.) AFTER applicant no. 1 had beer/acquitted he, his father (applicant no. 2) and his mother (applicant no. 3) gave an application in the trial court and prayed for the release of Rs. 20,141/- in their favour. Opposite party no. 2 also filed an application and made a similar prayer in that very court. Both the applications were heard and disposed of together The learned Magistrate rejected the application of the applicants and passed an order for the delivery of Rs. 20,141/- to opposite party no. 1 on the condition that he executed a personal bond of Rs. 20,000/- with two sureties of Rs. 10,000/-each and gave a promise to restore this money if and when asked to do so by a court of competent jurisdiction. Aggrieved, the applicants went up in appeal to the court of Sessions and their appeal was heard by Sri H. N. Mittal, I Addl. Sessions Judge, Bareilly. The learned Additional Sessions Judge dismissed their appeal and confirmed the order passed by the learned Magistrate. Opposite party no. 2 then executed the required bail bonds and took the delivery of Rs. 20,141/- from the court. Dissatisfied, the applicants have now come up in revision to this court.

(3.) THE learned counsel for opposite party no. 2 contended that as Rs. 20,141/- has already been delivered to his client he should be allowed to retain the money with him and by way of security he was even perpared to furnish a bank guarantee for it. the learned counsel for the applicants also stated that if the money in question was returned to them they too were perpared to furnish a bank guarantee for it. In this situation, I think it would be proper if no party is allowed to have the money with it. In order to keep the scales of justice even the best course would be to keep the money with the court.