Court No. - 77
Case :- CRIMINAL APPEAL DEFECTIVE No. - 123 of 2008 Appellant :- Davi Sarin Respondent :- State Of U.P.
Counsel for Appellant :- Anil Srivastava Counsel for Respondent :- Govt. Advocate
Hon'ble Aniruddha Singh,J.
Heard Sri Anil Srivastava, learned counsel for the appellant and Sri Hari Pratap Gupta, learned AGA for the State.
This Criminal appeal has been filed by Davi Sarin under Section 454 Cr.P.C. against judgment & order dated 24.7.2007 passed by Special Judge(D.A.A.) /Additional Sessions Judge, Court No.9, Agra in Special Sessions Trial No. 385 of 1997 and Special Sessions Trial No. 14 of 1997 whereby accused Kali Charan, Bachchu Singh, Ramesh, Smt. Usha, Udal Singh, Ashok Kumar, Mukesh and Devendra Kumar were acquitted under Section 412 IPC and accused Mohan Singh, Suresh Chandra and Mata Prasad were acquitted under Section 394 IPC giving benefit of doubt. Court below further directed that out of recovered amount of Rs.72,60,000/-which were deposited in State Bank of India, Chhiitola, Agra in the account of Income Tax Department P.D.A. No. 25-14-00 on 16.7.1996, Rs.2,00,000/- after deduction of income tax be returned to Nirankar Nath Mittal and remaining Rs.70,60,000/- were confiscated in favour of Income Tax Department.
According to prosecution case, FIR was lodged against two known persons and Mata Prasad, driver of the vehicle alleging that on 8.10.1995 complainant Nirankar Nath Mittal alongwith his friend Davi Sarin were going to Kanpur from Agra in a Maruti car. Two known persons with the help of driver Mata Prasad looted Rs.2,00,000/-.
After investigation, charge sheet was submitted and charges were framed against the accused persons under sections 394, 412 IPC. Prosecution examined P.W.1 Nirankar Nath Mittal and P.W.-2 Davi Sarin. Statements of accused were recorded under Section 313 Cr.P.C., they denied charges and claimed for trial.
After hearing learned counsel for accused and District Government Counsel(Criminal) for the State, impugned judgment and order was passed. Hence, this appeal has been filed for setting aside part of judgment dated 24.7.2007 passed by trial Court i.e. confiscating the amount of Rs.70,60,000/- in favour of Income Tax department and for release of whole recovered amount in favour of appellant.
Learned counsel for the appellant submitted that impugned order is illegal, arbitrary, perverse and against law and fact.
Learned AGA opposed and submitted that the impugned order has been passed after considering whole evidence on record and is just and legal.
From perusal of judgment, it appears that complainant Nirankar Nath Mittal proved the ownership of Rs.2,00,000/- only, hence Court below has directed to release an amount of Rs.2,00,000/- after income tax deduction to him. Complainant Nirankar Nath Mittal could not prove that recovered amount of Rs,72,60,000/- belonged to him. He was unable to prove, ownership of said money, source of income, source from where said money were drawn by the him. Only averment in the appeal has been made by an affidavit by appellant Davi Sarin that there is no claimant of alleged recovered money and said money be released in his favour. No detail has been given by the appellant to show that recovered money belonged to him and no evidence was produced before the trial Court as well as before this High Court to this effect. Appellant Davi Sarin has neither produced any evidence of loot from his possession nor has shown what was the source of cash of Rs.70,60,000/-. It has also not been shown from which bank and from whose account said money was drawn by the appellant.
Hence in absence of evidence showing source of income or any decree by the competent Court that recovered money belonged to the appellant, this appeal lacks merit and is liable to be dismissed.
It is also pertinent to mention here that Rs.2,00,000/- after deduction of income tax was directed to be released in favour of Nirankar Nath Mittal and not in favour of appellant.
There is no illegality or infirmity in the judgment passed by the Court below. The view taken by the Court below is plausible view.
The appeal is dismissed on merit at the admission stage.
Let copy of this order alongwith record of lower Court, if any, be transmitted to the Court below.
Order Date :- 30.4.2019 P.P.
Court No. - 77
Case :- CRIMINAL APPEAL DEFECTIVE No. - 123 of 2008 Appellant :- Davi Sarin Respondent :- State Of U.P.
Counsel for Appellant :- Anil Srivastava Counsel for Respondent :- Govt. Advocate
Hon'ble Aniruddha Singh,J.
Delay Condonation application Since the appeal is being decided on merit at the admission stage, there is no need to give finding on delay condonation application.
Hence delay condonation application is dismissed accordingly.
Order Date :- 30.4.2019 P.P.