1. Rule. Learned APP Mr. H.L.Jani waives service of notice of Rule for the Respondent – State of Gujarat.
2. The present Petition has been filed by the Petitioner under Articles 14, 19 and 226 of Constitution of India for the prayer that the impugned order passed by the learned Sessions Judge, Navsari in Criminal Revision Application No.6 of 2012 dated 31.5.2012 confirming the order passed by the learned Chief Judicial Magistrate, Navsari below Exh.16 in Criminal Case No. 5426 of 2005 dated 27.1.2012 may be quashed and set aside on the grounds stated in the Petition.
3. Heard learned Advocate Mr. Zubin F. Bharda for the Petitioner and learned APP Mr. H.L.jani for the Respondent – State of Gujarat.
4. Learned Advocate Mr. Zubin Bharda for the Petitioner has submitted that the amount of Rs.90,000/- which has been seized as muddamal in the aforesaid Criminal Case infact belonged to the Petitioner which he had withdrawn on the same day by cheque from his own savings account, and when he was going out from the Bank, the incident had occurred resulting in the seizure of the aforesaid amount as muddamal. He submitted that therefore the application was made for release of the amount in favour of the Petitioner, which has been rejected by both the courts below, and therefore, the present Petition has been filed. Learned Advocate Mr. Bharda has also stated that the accused who had been apprehended has also absconded and therefore the amount cannot be kept as muddamal for indefinite period. He has also placed on record the affidavit of the Petitioner along with the certificate and the statement of the Bank of India, Navsari Branch and the xerox copy of the said cheque, confirming that on 5th September, 2005, I.e. the date on which the incident occurred, amount of Rs.90,000/- was withdrawn from the savings bank account by the Petitioner.
5. Learned APP Mr. H.L.Jani made a feeble attempt stating that it is a muddamal, and therefore, unless it is decided that it belonged to the Petitioner, it cannot be released.
6. In view of the statement and considering the facts and the circumstances, though the amount may have been retained as muddamal, the fact remains that the accused is absconding and there is no trace of him and the trial has not commenced, admittedly, in view of the certificate given by the Bank of India, the amount of Rs.90,000/- was withdrawn by the Petitioner from his own savings bank account on the date of the incident, and when he was going out of the Bank, the incident occurred. Therefore, it cannot be disputed that this amount belonged to the Petitioner and the incident occurred when he was going out after withdrawing the amount, which was sought to be snatched away resulting in the incident. Therefore, the interest of justice would be served if the amount is ordered to be released in favour of the Petitioner.
7. In the facts and circumstances and in view of the affidavit and the certificate, the present Petition deserves to be allowed. The impugned order passed by the learned Chief Judicial Magistrate, Navsari below Exh.16 in Criminal Case No. 5426 of 2005 dated 27.1.2012 and the order passed by the learned Sessions Judge, Navsari in Criminal Revision Application No.6 of 2012 dated 31.5.2012 are hereby quashed and set aside. The amount of Rs.90,000/- lying in the fixed deposit with the Nationalized Bank which has been invested in the name of the Nazir of the Court of learned Chief Judicial Magistrate, Navsari is ordered to be released in favour of the Petitioner on usual terms after getting appropriate undertaking.
8. It goes without saying that the amount shall be returned along with interest accrued thereon since the amount has been invested in the name of the Nazir. It is also clarified that this order is passed in peculiar facts and circumstances and in view of the evidence, and is not to be treated as laying down any precedent.
Rule is made absolute. Direct service permitted.
(Rajesh H. Shukla,J) Jayanti*