Judgment:
ORDER
1. These two criminal revision cases are filed aggrieved by the judgment passed by the Additional Sessions Judge, Nizamabad in Criminal Appeal Nos. 14 and 18 of 1991 dismissing the accused appeal No. 14 of 1991 and allowing the de facto complainant's appeal No. 18 of 1991 and directing that M.Os. 1 to 3 i.e. cash of Rs. 40,000/- (M.O. 1), gold chain (M.O. 2) and gold gundlu with eenalu (M.O. 3) to be returned to the complainant.
2. The facts of the case in brief are as follows : The revision petitioner in Cr.R.C. 229/93 who is the accused-appellant in Crl. Appeal 14/91 has been charge sheeted by the Inspector of Police, Nizamabad town for the offences punishable under Sections 457 and 380 of Indian Penal Code stating that on the night of 23-3-1988 at about 8-45 p.m. he gained entrance into the house of the de facto complainant and committed theft of M.Os. 1 to 3. The trial Court disposed the case on merits by its judgment dt. 21-1-1991 acquitting the accused for the offences alleged and confiscating M.Os. 1 to 3 to the State. Aggrieved by the confiscation order the complainant filed Crl. Appeal 18/91 contending that M.Os. 1 to 3 belong to him and therefore the property order may be set aside and M.Os. 1 to 3 returned to him. The accused also filed Criminal Appeal No. 14/91 before the appellate Court stating that he was kept in illegal detention and on being harassed by police he arranged for M.Os. 1 to 3 and handed over to police and since it is the case of the prosecution that M.Os. 1 to 3 were recovered from him they should have been returned to him instead of confiscating the same to State.
3. The appellate Court allowed the appeal filed by the complainant directing the lower Court to return M.Os. 1 to 3 to the complainant after expiry of revision time. The lower appellate Court further dismissed the appeal filed by the accused holding that the accused is not entitled for M.Os. 1 to 3. Therefore these two revision cases are filed by the accused separately for allowing the appeal of the complainant and dismissing his appeal by the lower appellate Court. However, for the sake of convenience the two revision cases are disposed of by a common order.
4. The learned counsel for the appellant-accused contended that the view taken by the learned Sessions Judge is quite incorrect and contrary to the provisions of Section 452 of the Code of Criminal Procedure. According to him when the law is well established that normally on the closure of case where case is finally disposed and accused is acquitted and if the complainant failed to establish that stolen articles belonged to him and when the accused claimed that the articles seized belong to him they should have been returned to the accused. The trial Court should not order return of the articles to the complainant in the absence of establishing the same when they entered into the witness box. He relied upon a decision reported in Madhavan v. State of Kerala, : 1979CriLJ1197 wherein it was held as follows : (Para 10)
'When after an enquiry or trial, the accused is discharged or acquitted, the Court should normally restore the property which is in its custody to the person from whose custody it was taken. Departure of this rule of practice is not to be lightly made when there is no dispute or doubt that the property was seized from the custody of such accused and belonged to him'.
He further relied on a decision reported in Mehadeb Mahakur v. State of Orissa (1989) 3 Crimes 685 (Orissa) wherein it was held as follows :
'The Supreme Court held that at the conclusion of trial when the accused is acquitted the Court should normally restore the property which is in its custody to the person from whose custody it was taken. The facts and circumstances of the case do not disclose any such exceptional circumstances which would justify the departure from the normal rule that on acquittal of accused the property should be returned to person from whom it was seized.'
5. On the other hand the learned counsel for the respondent de facto complainant submitted that the order passed by the lower appellate authority directing return of property to the complainant is justifiable one and no interference is warranted. In order to know the correctness or otherwise of the case it is appropriate to refer to Section 452 Cr.P.C. Section 452 Cr.P.C. runs as follows :
'(1) When an enquiry or trial in any criminal Court is concluded, the Court may take such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.
(2) An order may be made under sub-section (1) for delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under i sub-section (1) is modified or set aside on appeal or revision'.
In the case on hand, both the accused and the complainant claimed for return of the articles M.Os. 1 to 3 namely cash of Rs. 40,000/- and gold ornaments. The trial Court rejected the request made by both parties and ordered for confiscation of the property. However, in trial the learned Sessions Judge, taking into consideration the evidence that was let in by the accused and also complainant's witnesses found that the complainant is entitled for return of the articles. Para No. 8 of the lower appellate Court's judgment runs as follows :
'Now we shall see whether the M.Os. 1 to 3 are liable to be returned to the de facto complainant i.e. PW-1. The lower Court in para 7 and 8 of the judgment has observed that since M.Os. 2 and 3 appear to be new ornaments and it is not specifically mentioned in complaint regarding theft of cash of Rs. 40,000/- neither PW-1 nor PWs-2 and 3 are entitled to them. I have already stated that the lower Court has ordered confiscation of M.Os. 1 to 3 to the State. It may be noted that PWs-1 and 2 are the sons of PW-3 Saraswathi, PWs-1 to 3 have clearly identified M.Os. 1 to 3 as their articles. When such an identification is available, the lower Court is not justified to disbelieve the same on the ground that they appear to be new. Though the plea of accused that the old currency notes of Rs. 40,000/- were given to State Bank of Hyderabad branch, Nizamabad and in exchange new notes i.e. M.O. 1 were obtained from it, he failed to establish the same. The lower Court has confiscated M.O. 1 to the State on the ground that in the complaint it is not specifically stated regarding theft of cash of Rs. 40,000/-. If the value of the property stolen is shown more, the police will have to treat the case as grave one and send grave crime report to the DIG in order to avoid the same, some times the police see that lesser value is mentioned. In the instant case it appears on that account of that reason only, the quantity of cash is not mentioned. PW-2 has stated that his mother brought the cash from the village two days before theft and he noted the numbers of currency notes from 473601 to 474000 on a calendar. Therefore merely because there is no specific mention of M.O. 1 in the complaint, it is not just and proper to disbelieve the categorical version of PWs-1 to 3 that cash of Rs. 40,000/- i.e. M.O. 1 was stolen. I have already held above that the accused is not entitled for M.Os. 1 to 3. Therefore, the trial Court ought to have ordered for return of M.Os. 1 to 3 to PW-1 instead of confiscating it to the State. Hence the order of lower Court confiscating M.Os. 1 to 3 to the State is not sustainable under law'.
6. When there was rival claim as to the ownership of the property the learned Sessions Judge instead of embarking upon to decide it once for all and ordering to hand over the same to the complainant, should have directed the parties to establish their claim before the competent Civil Court as to the ownership of the property as held by Madras High Court reported in Muthaiah Muthirian v. Vairaperumal Muthirian, : AIR1954Mad214 case wherein it was held : (Para 2)
'In normal circumstances, on acquittal or discharge, the property would be returned to the person from whom it was seized. But when there are circumstances showing that the culprit has not claimed the property as his specifically and when there are also no grounds to hold that the property could belong to him and the question of ownership has not been gone into in the judgment and decided one way or the other and discharge or acquittal is based upon inadequacy or doubtfulness of the proof offered, it would be unreasonable to return the stolen property to the accused person.'
It was further held in the abovesaid decision as follows : (Para 3)
'Where, therefore, there is a doubt as to ownership of property or where a question of bona fide title by purchase or otherwise arises the duty of the Criminal Court is to leave the parties to their remedy in a Civil Court'.
Following the principles laid down in the above-cited decisions and also the reason mentioned therein and in view of the observations made by the Madras High Court in Muthaiah Muthirian case this Court inclined to dispose of these two revision cases with the following observations. Since there is serious claim as to the ownership of the property involved in the case by both the accused and the complainant it is proper to direct the parties to establish their claim over the properties before the Civil Court. If such a suit is instituted by either of the parties to the proceedings before the competent Civil Court such Court shall dispose of the same within six months from the date of institution of the suit. Both the parties shall co-operate with the trial Court to get the matter disposed of if necessary by leading evidence day by day. Till then M.O. 1 namely, cash of Rs. 40,000/- in the form of currency notes shall be deposited in a nationalised bank and interest if any accrued thereon shall be returned to the party who succeeds in the Civil Court. Regarding the M.Os. 2 and 3 it is ordered that M.Os. 2 and 3 gold ornaments shall be kept in the safe custody of the nationalised bank and it shall be returned only to the person who gets order in his favour in the Civil Court.
7. With the above observations, the two criminal revision cases are disposed of.
8. Order accordingly.