1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1193 OF 2010 Mr.T.C. Jose & Ors. ...Applicants vs. The State of Maharashtra ...Respondents Mr.Girish Kulkarni with Mr.Benny Joseph i/b. M/s.Sanjay Udeshi & Co. for the Applicants. Mr.S.R. Shinde, APP for the State. CORAM : V.M. KANADE, J. DATED : APRIL 15, 2010 P.C. :- 1 Heard Counsel for the applicants/petitioners and APP for the State. 2 The petitioners have filed this petition under Article 227 of the Constitution of India read with Section 482 of the Cr.P.C. for quashing and setting aside the judgment and order passed by the Additional Sessions Judge, Pune, which was pleased 2 to confirm the order passed by the Judicial Magistrate, First Class, Pune, who had rejected the application filed by the present petitioners for return of cash amount which was recovered from original accused. Brief facts are as under:- 3 A representation was made by the accused that they are working in the Bank of Maharashtra and they would be in a position to sell flats which were attached by the bank at the concessional price. Relying on the said representation, the petitioners paid amount of Rs.49 lakhs to the accused. The petitioner no.1 paid Rs.24 lakhs, petitioner no.2 paid Rs.10 lakhs and petitioner nos.3, 4 and 5 paid Rs.5 lakhs each to the accused. The said amount was to be deposited with the Bank of Maharashtra. The accused gave them receipts/deposit slips and told that the said amount was deposited in the said bank. Later on, the applicants came to know that the said 3 amount was not, in fact, deposited in the said bank and they were taken away by the accused. A complaint was filed by the petitioner no.1 with Nigdi Police Station on 26th April, 2008 against the accused. During the course of investigation, the police have recovered an amount of Rs.26,92,165/-. Charge sheet has been filed against the accused and the trial is pending in the trial court. 4 The petitioners filed individual applications under Section 457 of the Cr.P.C., 1973 for return of the seized property by the police. The trial court rejected the application of the petitioners on the ground that it was difficult to ascertain the exact amount which would be paid to each of the applicants from the amount which was recovered from the accused. Being aggrieved by the aforesaid order, the petitioners filed revision application in the Sessions court. Revision application, however, was also dismissed by the Additional Sessions Judge and the order passed by 4 the trial court is confirmed. 5 I have heard the learned Counsel for the petitioners and the learned APP for the State. In my view, both the courts below have committed an error of law which is apparent on the face of record. It is an admitted position that the said amount has been recovered by the Nigdi Police Station during the course of investigation from the accused. All the petitioners herein had paid total amount of Rs. 49 lakhs out of which the police have recovered Rs. 26,92,165/-. The amount which was paid individually by the petitioners is mentioned in the complaint and in the application filed by them before the trial court. The trial court, therefore, should have permitted the petitioners to withdraw the amount in the proportion in which the amount was paid by them to the accused. The petitioners have given the exact proportion which is to be refunded to them in their individual applications. 5 5 Counsel for the petitioners has submitted that the petitioners are willing to execute a bond and give an undertaking to the trial court that in the event, any adverse orders are passed, the said amount would be returned by them. 6 The Apex Court and this Court in catena of cases has held that if the amount has been seized is cash, the same can be returned to the complainant on execution of a bond. Both the lower courts, therefore, clearly erred in holding that it is difficult to come to the conclusion what proportion has to be paid to the individual applicants. Since the amount paid by individual applicants is mentioned by them in their applications and in the complaint, out of the amount which is recovered, the said amount has to be distributed in the same proportion and in the same percentage as was deposited initially by them to the accused. 7 The impugned orders, therefore, are 6 quashed and set aside. 8 Writ petition is allowed in terms of prayer clauses (b) and (c). The petitioners shall execute a bond and mention therein that in the event, there being any adverse order passed in the trial court, the petitioners shall return the said amount and deposit the same in the trial court without interest. The said amount shall be deposited within four weeks after the adverse order, if any, is passed. The petitioners shall also give an undertaking to the trial court in the same manner. 9 Petition is allowed and disposed of in the aforesaid terms. (V.M. KANADE, J.)