Court No. - 25
Case :- CRIMINAL REVISION No. - 491 of 2009 Revisionist :- Bhola Nath Opposite Party :- State Of U.P.
Counsel for Revisionist :- I.K. Chaturvedi Counsel for Opposite Party :- Govt. Advocate
Hon'ble Siddhartha Varma,J.
Brief facts relevant for the decision of the case are that after a First Information Report was registered with regard to Case Crime No. 1160 of 1999 under Sections 406, 420, 467 468, 419, 140 and 179 IPC, investigation was undertaken and the police submitted its charge sheet before the 9th A.C.J.M. where trial was undergone. While the trial was going on another case against the applicant Bholanath with Case Crime No. 197 of 1999 was registered and the trial which resulted from it was numbered as Case No. 1050 of 2000. This trial was undergone under Section 363 IPC. The allegation in Case Crime No. 1160 of 1999 which was tried as Case No. 68 of 2001 was that the complainants therein were duped by the accused Bholanath by taking money on the pretext that he would get them jobs. When the investigation in case crime no. 197 of 1999 was going on an amount of Rs. 1,15,350/- was recovered from the possession of the accused Bholanath. The complainants in case no. 68 of 2001 alleged that the amount of Rs. 1,15,350/- which was recovered in case no. 1050 of 2000 and which amount the police had made a case property actually belonged to them and they filed an application for the release of it in their favour. This release application was decided by the A.C.J.M.
IIIrd Rai Bareilly on 27.11.2000. After hearing the complainants of case no. 68 of 2001 and also the accused Bholanath the application for the release of the amount of Rs. 1,15,350/- was rejected and the amount was kept as case property in the safe custody of the Court. However, in both the cases, namely, Case Crime No. 1160 of 1999 and the Case Crime No. 197 of 1999 the applicant accused was acquitted on 15.2.2001 and 22.3.2001 respectively after a full fledged trial in Case No. 68 of 2001 and Case No. 1050 of 2000. However, the amount of Rs. 1,15,350/- which was alleged to be the amount which the accused had taken from the complainants in Case No. 68 of 2001 when the judgement of acquittal was pronounced on 15.2.2001 the Additional Chief Judicial Magistrate had provided that the amount had to be confiscated in favour of the State Government.
In paragraph 13 of the judgement which had resulted in the order of acquittal on 15.2.2001 the A.C.J.M. had observed that the amount of Rs. 1,15,350/- was not claimed by the accused and therefore the same had to be confiscated in favour of the Government. The applicant who was the accused in the case, after the acquittal, filed an appeal only against that portion of judgment and order dated 15.2.2001 by which the amount of Rs. 1,15,350/- had been confiscated. In the grounds of appeal it was very categorically submitted that the amount of Rs. 1,15,350/- should be returned to the person from whose possession it was recovered and it was also submitted that if the record of the case was seen then it would be evident that when the applicant had moved his application for bail in Case No. 68 of 2001 then in paragraph 7,8, and 9 of the application he had very categorically stated that the amount belonged to him and he had also disclosed the source from where the amount was received by him. When the appeal was dismissed on 27.9.2002 the instant revision was filed.
Despite the various opportunities which were granted to the learned Government Advocate no counter affidavit has been filed.
Learned counsel for the applicant has stated that he had throughout claimed the amount of Rs. 1,15,350/- in proceedings in the courts below and despite the claim which he had made, the court below had observed that the applicant had made no claim.
In this regard, the applicant drew the attention of the Court to the paragraph 7 of the bail application which he had moved and the same is being reproduced here as under:-
“Para 7. That in fact the applicant took a loan as there is one Deep Foam House in Rai Bareilly under the proprietorship of Pradeep Kumar, who is real son of the applicant and an amount of Rs. 3 Lacs was withdrawn from the Vijaya Bank and the applicant was going to Lucknow for purchasing the foam for the foam house of his son in the meanwhile a short of accident took place where alleged kidnappee of this case stand in the middle of the road and some sort of altercation took place in the meanwhile persons of nearby locality and Dhaba gathered there and they beaten the applicant and hand over the application to the police and by that time no such article such as name place dress etc. were recovered from the Tata Sumo and only Rs. 1, 35, 000/- was recovered out of which the police was kind enough to show Rs. 1,15,350/- in the recovery memo and that amount belong to the applicant.”
The applicant submitted that when decision was being taken by the Trial Court then all documents and evidence which were there before it had to be perused by it and it cannot be said that the applicant had to move a separate application for claiming the amount which had been recovered from his possession.
Furthermore, he submits that the amount was recovered from his possession and therefore when he was being acquitted it should have been returned to him.
In reply, the learned AGA, however, submitted that since no claim was made for the amount the same was rightly confiscated in favour of the State.
Having heard the learned counsel for the parties and having gone through the record and the written argument submitted by the applicant, I am of the definite view that the Trial Court wrongly confiscated the amount in favour of the State Government. Firstly, upon the acquittal of the applicant, the amount which was recovered from him should have been returned to the applicant. Secondly, the Trial Court wrongly observed that the applicant had never demanded for the return of the amount. In fact, in the averments made in the bail application the applicant had also disclosed as to how the amount had come to him before it was confiscated by the police and it was thus incumbent upon the Trial Court to have looked into all the documents and evidence as were placed before it.
Under such circumstances, the revision is allowed. The amount of Rs. 1,15,350/- which was confiscated in favour of the State Government should be returned to the applicant forthwith.
I, therefore, direct that the amount of Rs. 1,15,350/- be handed over to the applicant upon the filing of a certified copy of this order. Since, the applicant has wrongly been denied the amount which legally belonged to him, the amount of Rs. 1,15,350/- shall be returned to the applicant alongwith 6% simple interest calculated with effect from 15.2.2001. The interest amount shall be paid by the State.
Order Date :- 28.2.2018 praveen.