BHOLANATH DAKHNIPRASAD CHAURASIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Mr.Nadkarni for the petitioner Mr.Sawant for Respondent No.2 and Mr.Galeria, APP for State.

(2.) THIS writ petition is filed challenging the order dated 6th July 1990 passed by the Additional Chief Metropolitan Magistrate's, 40th Court, Girgaum, Bombay in S.C. No.63/P of 1988 with regard to the return of the sum of Rs.10,952/- lying in the Fixed Term Deposits in a Bank.

(3.) IT is this order which was taken exception of by the petitioner. Mr.Nadkarni, the learned Advocate appearing on behalf of the petitioner contended that since the petitioner accused was acquitted the property which was the subject matter of the trial or the prosecution ought to be returned to him. According to him under Section 452 of the Cr.P.C. the petitioner is entitled for the return of the said property at the conclusion of the trial. He cited the judgment of the Supreme Court in the case of Pushkar Singh v. State of Madhya Bharat reported in AIR 1953 SC 503. The said decision will not be of any assistance to the petitioner. There the accused was charged with the offence of theft of money. That money which was the subject matter of the offence was found in possession of the accused. The money was directed to be returned to the accused not because it came from his possession but the money was found belonging to the accused. In this case, Mr.Nadkarni has not been able to point out that the money was found to belong to the petitioner-accused. His submission is based on the fact that since the money had come from the custody of the accused it should be returned to the accused since he was acquitted of the charge levelled against him. That is neither the ratio of the decision of the above decision cited by Mr.Nadkarni nor is he entitled under section 452 of Cr.P.C. The trial Court who acquitted the petitioner accused was the best judge to say to whom the amount belongs and that Court had directed the amount to be returned to the complainant-Respondent No.2 meaning thereby it was the Respondent No.2 who was entitled to that amount and that seems to be correct finding or inference in the facts of the case since it is not disputed that the amount in question was supposed to have been credited in the account of the Respondent No.2 in whose favour the cheque was issued by the LIC authorities. Mr.Nadkarni then contended that the petitioner had spent for the illness of his deceased father and the Respondent No.2 was only the nominee in respect of the said amount. It is true that as a nominees the Respondent No.2 was a trustees in respect of the said amount which could be claimed by all the heirs of the deceased as per their shares in accordance with their personal law. But admittedly no litigation in that behalf is pending in any Court and, therefore, the amount has to be returned to the party having legitimate custody. Sine after the remand the trial Court wanted to ascertain and make enquiry in that behalf the order or direction to record the evidence of the complainant and the Bank officials to find out to whom the amount belonged cannot be said to be wrong.