MANDAKINI MANOHAR DESAI Vs. CHAMPAKLAL CHOGMAL JAIN

JUDGEMENT

(1.) The applicant herein had filed a private complaint in the Court of the learned Metropolitan Magistrate, 19th Court, Esplanade, Mumbai, alleging therein that one Mr. Dastur had subjected her to cheating and offence under Section 420 as also under Section 406 of IPC have been committed. The learned Metropolitan Magistrate, 19th Court, Esplanade, Mumbai, hereinafter referred to as the learned trial Judge acquitted Mr. Dastur. Certain ornaments were produced before the learned Trial judge in the course of trial and the learned trial Judge ordered that the said ornaments should be delivered to the applicant. It is required to be noted that the respondent Nos.1 and 2 had filed an application before the learned trial Judge for return of the ornaments to them and that the matter was attended to by the learned trial judge and that is how the order was passed. Being aggrieved by the order dated 17.4.1998 as regards the order regarding the return of the ornaments, the respondent Nos.1 and 2 filed two separate appeals being appeal No.85 of 1998 and Appeal No.86 of 1998. The First Addl. Principal Judge and Addl. Sessions Judge for Greater Bombay hereafter referred to as the learned Sessions Judge allowed the said appeals and set aside the order passed by the learned trial Judge and directed that the said ornaments be returned to the appellants i.e. Respondent Nos.1 and 2. Being aggrieved by this Order dated 19.8.1999 passed by the learned First Addl. Principal Judge & Addl. Sessions Judge for Gr. Bombay the applicant herein has moved this court in its revisional jurisdiction.

(2.) During the course of hearing of this application, this court was informed that the present applicant had at the early stage of trial had applied for return of the ornaments before the learned trial Judge. That application was rejected and no specific orders were passed therein. The respondents 1 and 2 had specifically filed an application for return of the ornaments little before the end of the trial and evidence of respondent Nos.1 and 2 was recorded to which there was no cross examination on behalf of the applicant or on behalf of the state for benefit of the applicant. Based on the evidence placed before the Court through the respondent Nos.1 and 2 the learned trial Judge arrived at the conclusion that the applicant is entitled to get back the ornaments and passed an order. This will go to show that little prior to the end of the trial there was no formal application filed by applicant pending before the learned learned trial Judge so that the learned trial judge could consider the case of the applicant and decide whether the application ought to be granted or not. The learned Addl. Sessions Judge considered the matter and passed an order in favour of the respondent Nos.1 and 2 by relying upon the principles laid down in the case of Swarupchand vs. Smt.Leela reported in 1991(1) Bombay Cases Reported 501 and ordered that the ornaments be returned to the respondent Nos.1 and 2 as they were recovered from their possession.

(3.) All the aforesaid developments would go to show that there was no specific application filed by the present applicant for return of the property little prior to the end of the trial and therefore I am of the view that the applicant should file a Regular Application before the learned trial Judge praying for return of the property, so that the learned trial Judge could consider the said application and decide the same on merits. It is pertinent to note that whatever evidence was led by respondent Nos.1 and 2 in the year 1995 was led practically behind the back of the applicant because the applicant was the original complainant and therefore she could not have exploited the opportunity to cross examine these respondent Nos.1 and 2. Hence, I am of the view that once the applicant files a regular application for return of the ornaments, the respondent Nos.1 and 2 can oppose the said application and that is how the question of return of property can be considered by the Court after the proper evidence as regards the ownership of the ornaments and other related aspect are brought on record. Needless to mention that the applicant as well as the respondent Nos.1 and 2 will get full opportunity to lead evidence in support of their respective cases and that is how the property can be disposed of on the basis of the order which would be passed by the learned trial Judge.