MAHINDRA SAIGAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Criminal Writ Petition is directed against the order dated 21st November, 1984 passed by the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay, rejecting the application of the petitioner for return of the property which was seized by the police in Criminal Case No. 84 of 1984 and the order of the learned Additional Sessions Judge, Greater Bombay dismissing the revision petition filed by the petitioner against the said order of the learned Additional Chief Metropolitan Magistrate. The facts necessary for the decision of this petition in brief are that the petitioner obtained a loan of Rs. 1,22,000/- from the complainant on 3-2-1984 and on that date the petitioner-accused executed one Power of Attorney, two Promissory Notes, one for Rs. 87,000/- and another for Rs. 85,000/- and also sworn one affidavit. According to the complainant, the accused promised to sell to him Flat No. 306 and two garages situated in Pushpakunj Co-operative Housing Society Ltd., A Road, Churchgate, Bombay-20 for Rs. 3,67,000/- and that the complainant paid him the full amount. Later on it is alleged that the complainant found that the accused was not full owner of the said flat and there were income-tax dues and the flat was auctioned for the recovery of those dues by the Income-tax Department. Realising that he has been cheated by the accused the complainant reported the matter to the Additional Commissioner of Police, General Crime Branch, C.I.D. Bombay. On the basis of the said report the offence under section 420 I.P.C. was registered. During the investigation of the offence the Police seized moveable and immoveable property from the possession of the accused. It transpired during the investigation that the amount the accused obtained from the complainant was utilized by the accused for purchasing the said property. The property seized by the Police on 24-6-84 include (i) residential Flat No. 11, 1st Floor, Aarati Building, Gayatri Mahatre Road, Dahisar, Bombay and (ii) Shop No. 112, Jeevan Bima Nagar Shopping Centre, Condominium, S.V. Road, Borivli (West), Bombay 92. According to the petitioner, besides the above immoveable property, some documents, cash amount of Rs. 2,600/- and one wrist watch Citizen automatic were also seized by the Police.

(2.) It is the case of the petitioner that the property seized by the Police was not obtained by him from the amount that he got from the complainant. According to him, there were many transactions between him and the complainant and during the transactions he executed certain promissory notes and other documents in favour of the complainant and agreed to repay the amount after two years as has been mentioned in the pronotes. The petitioner submitted an application to the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay for return of his properties. The said application was opposed by the complainant. The learned Additional Chief Metropolitan Magistrate found that the flat and the shop was the property involved in the offence. In case the prosecution case was correct. According to him, the petitioner was not entitled to the return of the said property. Hence he rejected the application of the petitioner. The Revision preferred against the order of the learned Additional Chief Metropolitan Magistrate was dismissed by the learned Additional Sessions Judge, Greater Bombay.

(3.) The learned Counsel for the petitioner contends that the petitioner had entered into an agreement to purchase the residential flat No. 11 before he obtained money from the complainant. According to the learned Counsel for respondent No. 2, the agreement in question is dated 20th April, 1984 though in the body of the agreement some payments were shown to have been made earlier. As regards the Shop No. 112, Jeevan Bima Nagar Shopping Centre, S.V. Road, Borivli, Bombay, it was admittedly purchased after 3rd February, 1984 i.e. after the accused obtained money from the complainant. It is the prosecution case that the petitioner cheated the complainant and fraudulently obtained from him huge amount to the extent of Rs. 3,67,000/- and utilized that amount for purchasing the aforesaid immoveable and moveable property seized by the Police in this case. Both the courts below found that the property in question is involved in the offence for which the charge-sheet has been filed against the petitioner on 24-10-1985 in the Court of the Metropolitan Magistrate, 23rd Court, Esplanade, Bombay. As the property prima facie appears to be involved in the offence alleged against the petitioner the courts below were right in rejecting the application of the petitioner for returning the property to him.