ABDUL HAMED ABDUL GAFOOR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS writ petition is preferred, being aggrieved by the judgment and order dated 20th December, 1991 passed by the Court of Sessions, Malegaon, dismissing the appeal preferred by the appellants (Original Accused Nos. 2 and 3) and confirming the order passed by the Judicial Magistrate, First Class, Malegaon, about the return of property.

(2.) FEW facts need to be narrated, which are as follows : the petitioners in this writ petition, were original accused Nos. 2 and 3 in Criminal Case No. 17 of 1989, on the file of the Court of the Judicial Magistrate, First Class, Malegaon. Three accused, namely, Mohd-Hanif Vali Alla Sardar, Abdul Hamid Hafij Abdul Gafur and Sarvar Abdul Hamid, were chargesheeted for the offences punishable under section 406, 420 read with 34 of the Indian Penal Code.

(3.) THE prosecution case was that the complainant Mr. Noor Khan, who was the resident of Malegaon and who was running power looms of Grieves Cotton Co. , Ahmedabad make, was the owner of two powerlooms, which were 54" (inches) in size. Due to his old age, the complainant was not using those power looms. On 31st December 1987, one Abdul Majid, who was a Dalal of Malegaon, came to the complainant, Noor Khan, along with accused No. 1 Mohd. Hanif Vali Alla Sardar, and told the complainant that accused No. 1 was desirous of taking his looms on rent. The complainant agreed to let out his two power looms to accused No. 1 and an agreement came to be entered into between the complainant and accused No. 1 with respect to those power- looms. The power looms were thus let out by the complainant to accused No. 1 at the rate of Rs. 75/- per month for each powerloom for a period of 11 months. This agreement was dated 31st December, 1987. As per the agreement, accused No. 1 paid an amount of Rs. 1,650-/- to the complainant as full rent of two powerlooms for a period of 11 months on the same day. When the term of the agreement was over, the complainant visited the house of accused No. 1 on 1st December, 1988. He found that the said powerlooms were not with accused No. 1. He learnt that accused No. 1 had sold those powerlooms to somebody else. He, therefore, lodged a complaint with the Azad Nagar Police Station. Malegaon. Thereafter the Investigating Officer concerned, reduced the complaint in writing and registered the complaint as Crime Registration No. 125 of 1988 (I. P. C. 406) on 7th December, 1988. Thereafter the Investigating Officer investigated the offence, recorded statements of the concerned witnesses and seized Muddemal property viz. , the powerlooms from the possession of accused Nos. 2 and 3. After completing investigation, chargesheet came to be filed against accused Nos. 1 to 3 in the Court of the Judicial Magistrate, First Class, Malegaon for offences under section 406, 420 I. P. C. read with section 34 I. P. C. The accused appeared in the Court, charge was framed against them, they pleaded not guilty and claimed to be tried. Their defence was that of total denial. The learned Magistrate, after recording the evidence, gave a finding that the prosecution had proved that the complainant was the owner of the said Muddemal property and that accused No. 1 was entrusted with the Muddemal property. He also gave a finding that the prosecution had proved that accused No. 1 had disposed of the said property i. e. two powerlooms in violation of the agreement made between the complainant and accused No. 1.