entire consideration amount is not conclusive proof in support of
correctness of the recital. In the revision affidavits of Shivraj Kundu, Ved
Pal, Rohit Kundu, Rakesh Arya and Rajesh Mann vendees of sale deeds
No. 201, 202, 203, 204 and 206 respectively have been placed on record.
In the affidavits it has been stated that they had paid ` 75,000/- in cash
and handed over cheque of ` 6,00,000/- to Anil Talwar. The payment
through cheque was to be made after two months. Anil Talwar had sent
Rohit Kothal and Nitish Joshi and each vendee paid ` 6,00,000/- out of
the sale consideration to them. The money so apprehended by the police
on 18.4.2011 was paid by vendees to Rohit Kothal and Nitish Joshi.
10.
The Section 102 (1) Cr.P.C. provides that any police officer
may seize any property which may be alleged or suspected to have
been stolen, or which may be found under circumstances which create
suspicion of the commission of any offence. The petitioner in the reply
before learned Judicial Magistrate has not taken the plea that the
currency notes seized from Rohit Kothal and Nitish Joshi were
alleged/suspected
to
have
been
stolen
or
were
found
under
circumstances which creates suspicion of the commission of any offence.
The proceeding under Sections 41, 109 Cr.P.C. has already been closed
by the Sub Divisional Magistrate, Paonta Sahib on 11.5.2011. Thus, there
is no foundation for seizing of ` 30 lacs by the police from Rohit Kothal
and Nitish Joshi on 18.4.2011.
11.
There is substance in the contention of the respondent that
even till now no other person except the respondent has claimed the
amount taken into possession by the police from Rohit Kothal and Nitish
Joshi on 18.4.2011. Rohit Kothal and Nitish Joshi moved an application
for release of the amount on the ground that the money was recovered
from them but the learned Judicial Magistrate did not release the amount
to them, but this does not mean that the respondent is not entitled to the
amount of ` 30 lacs recovered by police from Rohit Kothal and Nitish
Joshi.
12.
There is enough material on record that respondent had sold
his properties to various vendees vide sale deeds No.201, 202, 203, 204
and 206 for a sale consideration of ` 6,75,000/- each. He had received
` 3,75,000/- in cash from the vendees at the time of registration of the
sale deeds and balance amount of ` 30 lacs was paid to respondent by
the vendees through Rohit Kothal and Nitish Joshi. The learned Sessions
Judge has recorded a finding of fact which has not been shown to be
perverse. There is no error of jurisdiction. The view taken by the learned
Sessions Judge emerges from the material on record.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MMO No. 110 of 2012
Date of decision: 30.10.2012
State of Himachal Pradesh Vs Anil Talwar
The Hon’ble Mr. Justice Kuldip Singh, Judge.
Citation; 2013 CR L J 368 HP
This petition has been filed against the order dated
23.4.2012 passed by learned Sessions Judge, Sirmaur District at Nahan
in Criminal Revision No. 17-Cr.R./10 of 2011 reversing order dated
18.7.2011 passed by learned Judicial Magistrate 1st Class, Court No.1,
Paonta Sahib in Cr.Misc. Application No. 317/4 of 2011.
2.
On 18.4.2011 Rohit Kothal and Nitish Joshi while going
to Dehradun via Paonta Sahib from Haryana were searched at Behral
_____________________
1
Whether reporters of Local Papers may be allowed to see the Judgment ? yes
2
Barrier, Paonta Sahib by the Police and from their personal search
currency notes worth ` 30 lacs were recovered, both of them were
arrested under Sections 41, 109 Cr.P.C. The Sub Divisional Magistrate,
Paonta Sahib dropped the proceedings against both Rohit Kothal and
Nitish Joshi vide order dated 11.5.2011. The police produced currency
notes before the Executive Magistrate, who ordered seizure of the same
under Section 102 Cr.P.C. The police after lapse of one month
approached the court for initiating proceedings under Section 102 Cr.P.C.
3.
Rohit Kothal and Nitish Joshi moved an application for
releasing the currency notes recovered from them which was dismissed
by learned Judicial Magistrate 1st Class, Court No.1, Paonta Sahib on
16.6.2011. The respondent on 17.6.2011 moved an application for
releasing ` 30 lacs to him on the ground that Rohit Kothal and Nitish
Joshi at the time of search disclosed to the police that they were carrying
money which belonged to respondent as they had received the money
from third parties on behalf of the respondent. The police did not believe
Rohit Kothal and Nitish Joshi as they were not having any documentary
proof in support of their contention. Rohit Kothal and Nitish Joshi were in
lawful custody of currency notes of ` 30 lacs under instructions of
respondent rightful owner of currency notes.
4.
It was stated in the application that respondent had sold five
plots to different parties vide registered sale deeds No. 201, 202, 203,
204 and 206 all dated 7.2.2011 at Dehradun for sale consideration of
` 6,75,000/- each. The respondent received sale consideration of
` 75,000/- in cash and cheque of ` 6,00,000/- from each of the vendee.
The understanding between the respondent and each vendee was that
3
on payment of ` 6,00,000/- in cash, the cheque would be returned. Rohit
Kothal and Nitish Joshi had received ` 30 lacs from the vendees on
behalf of the respondent.
5.
The application was contested by the petitioner by filing
reply. In the reply it has been stated that ` 30 lacs were recovered from
Rohit Kothal and Nitish Joshi, who were arrested. The source of money
was not disclosed by Rohit Kothal and Nitish Joshi. The Sub Divisional
Magistrate was seized of the matter, therefore, proceeding under Section
102 Cr.P.C. could not be initiated and proceeding under Section 102
Cr.P.C. was initiated after conclusion of proceeding before Sub Divisional
Magistrate. Rohit Kothal and Nitish Joshi had no title over the money.
6.
The learned Judicial Magistrate on 18.7.2011 refused to
release the amount to respondent and observed that the respondent has
failed to prove the source of money and also failed to prove that he was
entitled to receive and possess the amount. The learned Sessions Judge
on 23.4.2012 allowed the revision of the respondent, set-aside the order
dated 18.7.2011 and ordered release of currency notes worth ` 30 lacs to
respondent subject to his furnishing indemnity bond equal to the amount
of ` 30 lacs alongwith accrued interest, hence petition on the grounds that
the impugned order is based upon surmises and conjectures. The
impugned order is against the facts and law. The learned Sessions Judge
has committed grave error which has caused miscarriage of justice. The
respondent could not establish lawful possession of the currency notes
worth ` 30 lacs. The identity of person claiming money has not been
established. The money was not recovered from the respondent. As per
the sale deeds, the money was already received by the seller. The
4
learned Sessions Judge has erred in setting aside the order dated
18.7.2011.
7.
Heard and perused the record. There is no denial that
currency notes worth ` 30 lacs were recovered from Rohit Kothal and
Nitish Joshi on 18.4.2011 at Behral Police Barrier when they were
checked by the police while entering Paonta Sahib on their way to
Dehradun. The police took action under Sections 41, 109 Cr.P.C. but
proceedings were dropped against Rohit Kothal and Nitish Joshi by the
Sub Divisional Magistrate, Paonta Sahib on 11.5.2011. Rohit Kothal and
Nitish Joshi moved an application for releasing the amount of ` 30 lacs to
them but their application was rejected by the learned Judicial Magistrate
1st Class, Court No.1, Paonta Sahib on 16.6.2011. Thereafter, the
respondent moved an application for releasing ` 30 lacs to him on the
ground that he was legally entitled to hold and possess ` 30 lacs, Rohit
Kothal and Nitish Joshi on 18.4.2011 at the time of recovery of amount by
the police were holding ` 30 lacs on behalf of the respondent.
8.
In the record of the trial Court there are copies of sale deeds
No. 201, 202, 203, 204 and 206. In the sale deeds, the respondent is the
vendor but vendees are different. In each sale deed, the property has
been sold by the respondent to the vendee for a consideration of
` 6,75,000/-. It has been contended on behalf of the petitioner that in
each sale deed there is a recital that the vendor has received the entire
sale consideration. It has been submitted on behalf of the respondent that
in fact respondent had received ` 75,000/- in cash and ` 6,00,000/- by
way of cheque against each sale deed. The understanding between the
vendor and each vendee was that the vendee would pay ` 6,00,000/- in
5
cash, thereupon the vendor would return the cheque, each vendee paid
` 6,00,000/- in cash which was collected by Rohit Kothal and Nitish Joshi
on behalf of the respondent and they were going to Dehradun for handing
over ` 30 lacs to the respondent.
9.
The recital in the sale deed that vendee has received the
entire consideration amount is not conclusive proof in support of
correctness of the recital. In the revision affidavits of Shivraj Kundu, Ved
Pal, Rohit Kundu, Rakesh Arya and Rajesh Mann vendees of sale deeds
No. 201, 202, 203, 204 and 206 respectively have been placed on record.
In the affidavits it has been stated that they had paid ` 75,000/- in cash
and handed over cheque of ` 6,00,000/- to Anil Talwar. The payment
through cheque was to be made after two months. Anil Talwar had sent
Rohit Kothal and Nitish Joshi and each vendee paid ` 6,00,000/- out of
the sale consideration to them. The money so apprehended by the police
on 18.4.2011 was paid by vendees to Rohit Kothal and Nitish Joshi.
10.
The Section 102 (1) Cr.P.C. provides that any police officer
may seize any property which may be alleged or suspected to have
been stolen, or which may be found under circumstances which create
suspicion of the commission of any offence. The petitioner in the reply
before learned Judicial Magistrate has not taken the plea that the
currency notes seized from Rohit Kothal and Nitish Joshi were
alleged/suspected
to
have
been
stolen
or
were
found
under
circumstances which creates suspicion of the commission of any offence.
The proceeding under Sections 41, 109 Cr.P.C. has already been closed
by the Sub Divisional Magistrate, Paonta Sahib on 11.5.2011. Thus, there
6
is no foundation for seizing of ` 30 lacs by the police from Rohit Kothal
and Nitish Joshi on 18.4.2011.
11.
There is substance in the contention of the respondent that
even till now no other person except the respondent has claimed the
amount taken into possession by the police from Rohit Kothal and Nitish
Joshi on 18.4.2011. Rohit Kothal and Nitish Joshi moved an application
for release of the amount on the ground that the money was recovered
from them but the learned Judicial Magistrate did not release the amount
to them, but this does not mean that the respondent is not entitled to the
amount of ` 30 lacs recovered by police from Rohit Kothal and Nitish
Joshi.
12.
There is enough material on record that respondent had sold
his properties to various vendees vide sale deeds No.201, 202, 203, 204
and 206 for a sale consideration of ` 6,75,000/- each. He had received
` 3,75,000/- in cash from the vendees at the time of registration of the
sale deeds and balance amount of ` 30 lacs was paid to respondent by
the vendees through Rohit Kothal and Nitish Joshi. The learned Sessions
Judge has recorded a finding of fact which has not been shown to be
perverse. There is no error of jurisdiction. The view taken by the learned
Sessions Judge emerges from the material on record. There is no merit
in the petition which is accordingly dismissed.
October 30, 2012
(GR)
.
( Kuldip Singh ),
Judge.
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