1 WP 1838.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL WRIT PETITION NO. 1838 OF 2011 Sapna Pandurang Parab. ... Petitioner. V/s. The State of Maharashtra & Ors. ... Respondents. Mr. Sagar V. Kasar for the Petitioner. Mr. D.P. Adsule, APP for the State. Mr. A.R. Shaikh for Respondent 3. CORAM : K.U. CHANDIWAL, J. DATED : 17th OCTOBER 2011. P.C. :- Heard learned Counsel for the Original Complainant and Respondent No.3 – Vinod Varma. The Petitioner as complainant filed report to the Police giving rise to Regular Criminal Case No.89 of 2006 against her maid Respondent No. 2 – Smt. Rupali. The Petitioner alleged theft of two gold chains weighing 50 grams. Based on the accusations, the said Respondent No.2 was tried and the learned J.M.F.C., Manmad, by order dated 8th June 2010 acquitted Respondent No.2 – Smt. Rupali. However, in paragraph 3 of his order, he directed, the muddemal property (golden ingots) to be given to the complainant (Petitioner) upon her execution of bond to the tune of Rs.50,000/- after Appeal period. 2 WP 1838.11.sxw 2. Respondent No.3 Vinod felt aggrieved by such directions, consequently challenged the same before the learned Sessions Judge, Malegaon and the Additional learned Sessions Judge, allowing the Appeal hold entitlement of Respondent No. 3 – Vinod to the ingots of 50 grams in terms of Section 452 of Cr.P.C. This order of the learned District Judge is questioned by the Petitioner (Original Complainant). The learned Counsel for the Petitioner submits, the application moved by Respondent No.3 for return of the property specified of his purchase of two gold chains from a lady for Rs.11,550/- weighing 16.980 grams against the receipt. However, on 15.11.2006, when Manmad Police approached his shop, they have excessively collected 33 grams gold and total 50 grams ingots taken charge from said jeweler – Respondent No.3. 3. The learned Counsel for the Complainant – Petitioner submits in the light of this admission made by Respondent No. 3, the learned Sessions Judge was unjustified in directing release of total 50 gms. of gold to Respondent No.3. Secondly, he submits that the failure of the prosecution to prove the case should not entail to the legitimate claim of the Petitioner being Complainant and acquittal by itself will not change colour and complexion of her entitlement. 4. The learned Counsel for Respondent No.3 submits that whatever was stated in the interlocutory application would not come to the rescue of the Complainant as the theft itself is not proved and consequently, any purchase made by Respondent No.3 as a jeweller will be in consequential. 3 WP 1838.11.sxw 5. The learned Counsel for Respondent No.3 has placed reliance to the Judgment in the matter of Manipal Finance Corpn. Ltd. V/s. T. Bangarappa and Anr. reported in 1994 Supp. (1) S.C.C. 507 to state that the goods may be stolen to the person from whom it was recovered to establish theft or mis-appropriation. 6. Considering the features of the prosecution case, the learned Judge has observe in paragraph 8 of his Judgment in R.C.C. No.89 of 2006 that the Investigating Officer has failed to apply mandatory provisions of Section 27 of the Indian Evidence Act, there is no recovery nor stolen property is seized as per direction of the Accused. In this case even PW-1 did not support the prosecution. PW-7 Asha Patil also did not support having accompanied the shop of Respondent No.3 Vinod Varma. The learned Judge held, commission of theft and recovery is not proved. 7. In the light of these observations of the learned Judge, there was no justification on his part to have directed return of the property to the Complainant, particularly, when very theft itself being not established. Consequently, I do not see any error on the part of Additional Sessions Judge in directing return of the gold ingots 50 gms. to Respondent No.3, the original owner from whom Police seized the articles. Writ Petition lacks merit. Dismissed. Interim order vacated. (K.U. CHANDIWAL,J.) 4 WP 1838.11.sxw