JITENDRA SHANTILAL THALESAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By the present appeal, the appellant - original complainant in Sessions Case No. 578 of 1991 of the Court of Sessions at Mumbai has assailed the part of order dated 28th September, 1995 passed by the learned Addl. Sessions Judge after conclusion of the trial giving custody of Article 30 "U" shape gold necklace and small piece of 300 mg gold to respondent no. 2 on certain conditions and prayed for setting aside the same and returning said article to the appellant. The said sessions case had arisen out of the investigation of Crime No. 428 of 1990 registered with L.T. Marg police station upon first information report lodged by the appellant regarding robbery of gold ornaments and cash of Rs. 10,000/- committed at the point of gun by three persons armed with the weapons in his jewellery shop on 27th October, 1990. As a result of said investigation the L.T. Marg police station had charge-sheeted in all five accused. The four accused out of them having absconded said trial could be proceeded only against sole accused available for trial.

(2.) The appellant preferred Misc. Application No. 688 of 1995 for returning all articles seized during the investigation and produced at the said trial. The respondent no. 2, examined as witness P.W. 13 at the trial also preferred Misc Application No. 750 of 1995 for returning of Art. 30 to him. In short, it is the case of the appellant that matters transpired during investigation as well as evidence surfaced at the trial reveals that Art. 30 was made up from the parts of ornaments robbed from his shop. While it is the case of respondent no. 2 that he had purchased said Art. 30 for value from one Santosh Shetty i.e. one of the accused out of four absconding accused and as such he is bonafide purchaser for value of the said Article. It is his contention that evidence surfaced at the trial does not establish that Art. 30 is made up of part of the ornaments stolen from the shop of the appellant.

(3.) Mr. V.J. Bhanusali, learned counsel for the appellant urged that the order passed by the trial Court deserves to be set aside as the trial Court completely ignored that the appellant claiming ownership of Art. 30 had prayed for passing the order regarding disposal of said article. He urged that the trial Court preferred to give/continue custody of same with respondent no. 2 as the same was given in his custody during the course of investigation. He urged that the trial Court acted in such a manner only on the count of inability of the trial Court to pass the final order of disposal of property due to trial being not over as four accused were absconding. Learned counsel prayed for setting aside order passed by the trial Court and after ascertaining merits of the claim of the appellant, even during pendency of trial of said absconding accused, returning the Art. 30 to him on such terms and conditions as deemed fit and proper for avoiding causing of prejudice to the prosecution. Learned counsel alternatively submitted that since the right of the appellant to have said Article and/or his claim regarding same being not at all considered by the trial Court, the matter may be remanded back to the trial Court for deciding the same in accordance with law.