1 Cri.Revn.Appln.298 of 2011 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL REVISION APPLICATION NO. 298 OF 2011 Creative Outerwear Limited ... Applicant Versus Shri. Shailesh H. Bajaj & Anr. ... Respondents Mr. I.A. Bagaria for applicant. Mr. Shailesh Bajaj - respondent No. 1 in person present. Mr. Rajesh More, A.P.P. for State. CORAM : K.U. CHANDIWAL,J. DATED : AUGUST 18, 2011 P.C. Heard. Rule. Rule made returnable forthwith. Heard finally. 2. The orders of the learned Metropolitan Magistrate in Judgment under section 138 of Negotiable Instruments Act for return of 4000 shares allegedly pledged by respondent or his father with the complainant was assailed by the petitioner in Criminal Appeal No. 256 of 2011 before the learned Additional Sessions Judge, Greater Bombay at Bombay. By order dated 27.6.2011 the learned Sessions Judge upheld the order of the learned Metropolitan Magistrate and hence, the present 2 Cri.Revn.Appln.298 of 2011 Criminal Revision Application. 3. A long drawn history of litigation is pointed by the learned counsel for the petitioner. Summary Suit No. 5217 of 1999 filed by the petitioner was decreed on 15.4.2002. The decree was challenged before the Division Bench and even before the Supreme Court. Respondent Shailesh did not succeed. The decree holder thereafter moved for insolvency notice. However, solace was provided by the Apex Court by allowing installment. 4. The respondent canvass that the judgments are null, void and nonest and be ignored being passed as a result of fraud exercised by the present petitioner upon respondent Shailesh. It is informed that petitioner did not disclose that it allegedly adjusted repayment of the amounts to the respondent against principal amount and not against interest. There is controversy with the amount of Rs. 1 Crore was lent and advanced by the petitioner to respondent way back in 1995 in which cheques were issued and dishonour thereof resulted in above referred prosecution under section 138 of Negotiable Instruments Act. 5. Suit No. 1673 of 1998 was moved by respondent Shailesh before this court he seeks return of 4000 shares which were not returned by 3 Cri.Revn.Appln.298 of 2011 M/s. Crative. In notice of Motion No. 1690 of 2011 in the said suit, by order dated 23.7.2011 the leaned Single Judge did not entertain the request of respondent Shailesh to direct return of 4000 shares. However, hearing of the suit was expedited. 6. Even if 4000 shares to which reference is made does not belong to petitioner as averred by respondent. However, in respect of those shares, there still remain controversy between the petitioner, respondent Shailesh and father of respondent as later has also filed proceedings against petitioner concerning those shares. A short point that will now crept in is the said shares were not in the custody of respondent when its production in the proceedings under section 138 of Negotiable Instruments Act (C.C. No. 346/SS/2005) was sought. Acquittal under section 138 of Negotiable Instruments Act by the learned Additional Chief Metropolitan Magistrate will not tilt the picture for authorizing him to return 1,60,000 shares of Sesa Goa Limited to respondent accused as they were not the property of the accused respondent and were lying in the demat account of the petitioner. Even if the petitioner or the authorized agency in the cross examination admitted that 4000 shares of Sesa Goa Limited were owned by respondent Shailesh, were left with the complainant (Petitioner). However, that by itself would not 4 Cri.Revn.Appln.298 of 2011 change the complexion of the matter as the shares were produced before the court by Sesa Goa Limited. In such situation the orders of the learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaum dated 25.3.2011 and order of the learned Additional Sessions Judge accepting such return of the shares calls for interference. 7. It should have been given a thought by both the above referred authorities that de hors the production of shares not by the respondent still controversy in respect of these shares subsisting not even resolved upto the Apex Court in favour of Shailesh - respondent, the substantial rights of Shailesh by way of Suit No. 1673 of 1998 are still pending, the courts should not have directed return of those shares to respondent. 8. The respondent in person during the course of his submission, did not dispute the checkered history of litigation. He has relied on the judgments of N. Madhavan Vs. State of Kerala, 1979 CRI L.J. 1197, Kishan Singh Versus Gurpal Sigh and Others (2010) 8 Supreme Court Cases 775 and Balkrishan Gupta and Ors. Vs. Swadeshi Polytex Ltd and another, AIR 1985 Supreme Court 520. 9. In the result, orders under challenge are quashed to the extent of return of shares. However, the shares be returned to Sesa Goa Limited 5 Cri.Revn.Appln.298 of 2011 who had produced the same on 22.3.2011 with charges appearing in respective shares. Rule made absolute in the above terms. (K.U. CHANDIWAL,J.)