IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2960 OF 2008 Purushottam C. Mandhana .. Applicant Vs. The State of Maharashtra & Ors. .. Respondents Mr.Prakash Naik with Mr.Vishal Maheshwari i/by Khaitan & Co for the applicant. Mr.J.P.Yagnik, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 09th September 2008. : 09th September 2008. : 09th September 2008. P.C.: . Heard advocate for the applicant and learned A.P.P appearing for the 1st respondent State of Maharashtra. My attention has been invited to the document at Exhibit D which is a letter dated 02nd August 2008 addressed by the 2nd and 3rd respondents (the accused) to the learned Magistrate. In view of the said document, notice to 2nd and 3rd respondents is dispensed with. Taken up for final disposal. 2. An application was made by the applicant under section 451 of the Code of Criminal Procedure, 1973 for return of cash amount of Rs.20,08,000/- which was recovered from the 2nd and 3rd respondents. The applicant is the first informant at whose instance first : 2 : information report was registered alleging commission of offence under section 381 of the Indian Penal Code. It is the case of the applicant that he is carrying on business and he is incharge of several companies. According to him he has a company at Vikroli. The cashier of the said private limited company had withdrawn cash amount of Rs.20,25,000/- for payment of salary to the workers and the said amount was handed over by the cashier to the applicant. According to his case the said cash was kept in a plastic bag and he handed over the same to his brother for keeping the same at the residence as most of the workers had not reported to duty due to heavy rain. According to the applicant his brother handed over the cash amount to peons working in the company and they kept the said amount in a car parked in the compound of the company. The allegation made in the first information report is that in the evening when the brother came out of the office he noticed that the motor car had disappeared and even the driver of the motor car namely the 2nd respondent herein was not present. The driver could not be located. However, car was found parked in the basement. When the car was searched, it was found that the cash amount had disappeared. Therefore, a complaint was lodged by the applicant alleging commission of offence : 3 : against the 2nd respondent. 3. During the course of investigation a sum of Rs.8,00,000/- was recovered from the 2nd respondent and a sum of Rs.6,43,000/- was recovered from the 3rd respondent. This recovery was made in Punjab. Subsequently, from the house of the respondent cash amount of Rs.5,65,000/- has been recovered. Before the learned Magistrate, the Investigating Officer filed a report dated 04th August 2008 recording his no objection for return of cash amount of Rs.20,08,000/- to the applicant. A copy of the said report has been annexed to this application. Even the 2nd and 3rd respondents gave in writing their no objection for returning the said amount to the applicant. 4. By the impugned order dated 05th July 2008, the application was rejected by the learned Magistrate on the ground that a doubt is created in his mind about the genuineness of the claim of the applicant. The learned Judge observed that there was a doubt about the ownership of the cash. 5. The learned counsel appearing for the applicant submitted that neither the Investigating Officer nor the : 4 : accused had opposed the application made by the applicant. Infact all of them had consented for allowing the application. He submitted that the learned Judge ought to have allowed the application by imposing suitable conditions. The learned A.P.P on instructions confirmed the fact that the Investigating Officer and the accused had recorded their no objection for grant of prayer made by the applicant. 6. This was a case where both the Investigating Officer and the accused had recorded their no objection for allowing their application. None of them have doubted the case made out by the applicant that on the relevant day he was in possession of the cash amount of Rs.29,00,000/- and more. Therefore, there was no occasion for the learned Judge to reject the application. The learned Judge ought to have imposed suitable conditions regarding furnishing of bond/adequate security and furnishing of usual undertaking to produce the cash before the Court as and when required. A clear error has been committed by the learned Judge while passing the impugned order. Hence, the impugned orders deserves to be set aside. 7. Application is disposed of by passing following : 5 : order: (i) The impugned order dated 05th July 2008 is quashed and set aside. (ii) The learned trial Judge will pass an appropriate order permitting the applicant to withdraw a sum of Rs.20,08,000/- subject to furnishing appropriate bond/security and subject to compliance with usual terms and conditions. (iii) The trial Court will pass appropriate order accordingly within a period of two weeks from the date of production of authenticated copy of this order. (iv) Parties and concerned Court to act upon an authenticated copy of this order. (A.S.Oka,J)