1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 163 OF 1998 The State of Maharashtra, Through Shankarsingh, Inspector, R.P.F., Aurangabad Appellant VERSUS 1. Jitender Sampath Lal s/o Sampath Rajji, Aged 24 years, Resident of 64 Nehni Nagar, Jalna. 2. Mahavir Prasad Agrawal s/o Ratanlal Agrawal, Aged 46 years, Resident of Civil Club, Jalna. 3. Radhyesham s/o Ratanlal Agrawal, Aged 42 years, Resident of Old Mondha, Jalna. 4. Mukesh Mahavir Agrawal, Aged 26 years, Resident of Civil Club, Jalna. 5. Kamal Omkar Prasad Zunzunwala, Aged 38 years, Resident of Sadar Bazar, Jalna. 6. Rishi Steel & Alloyes Co. Pvt. Ltd. Jana, Represented by Managing Director. Respondents Mr. S.G. Nandedkar, APP for the appellant / State Mr. P.K. Joshi, Advocate with Mr. Vinod S. Khairnar, Advocate for the respondents CORAM : A.V. NIRGUDE, J. Date : 24th November, 2010 ORAL JUDGMENT 1. This appeal is filed against the Judgment and order passed by the learned Railway Magistrate, Aurangabad acquitting the respondents/accused in Regular Criminal Case No. 24 of 1992. The 2 accused Nos. 1 to 5 are either employees, directors or Managing Directors of accused No.6 Company. It is a Private Limited Company. It runs business of manufacturing rolling steel. The company procures steel and iron scrap for melting and converting it to steel ingots. The complainant is Inspector of Railway Protection Force. He received source information that the respondents had received railway property which was suspected to be stolen or unlawfully obtained. On 1/11/1991 the complainant and his companions raided the company premises of the respondent No.6. They found iron scrap and some serviceable railway goods made of iron there. They seized the material under a panchanama. At the time of raid, the accused No.1 the supervisor of the Mill stated to the complainant that he has no document to show that the railway property was lawfully obtained. 2. Later on, the complainant recorded statements of other respondents mainly the respondent No.2 the Managing Director of the Company. He stated that his company had procured this material from one Nagpur Alloys Casting Ltd. (Henceforth referred as ‘Nagpur company’). He also said that this material was brought to his company premises from Bhusawal in lorries and he produced lorry receipts to support his case. He thus tried to show that the railway property came to his possession lawfully. He also produced certain documents which are called “Issue Notes” a reference to this term is made in further part of the judgment. 3. It is an admitted fact that the Nagpur Company is a large manufacturer of finished goods exclusively for the railways. It is also an admitted fact that the Nagpur company received railway scrap from various railway yards/stores. It is further an admitted fact that the Nagpur company is not authorized to use the scrap they receive from the railways, for any other purpose than for manufacturing finished goods for railways. It is further an admitted fact that in September, 1991 the representative of the Nagpur company the 3 prosecution witness No. 9 received certain scrap material from railway yard at Bhusawal under eleven delivery notes which are called “issue notes”. He received this scrap under the eleven issue notes and stored the same in an open plot near Bhusawal. It is the prosecution case that the Nagpur company thereafter transported the scrap received under the above mentioned issue notes to its Nagpur factory. 4. As said above the respondent/ accused assert that they purchased this scrap through certain agency from the Nagpur company. It is their case that the scrap so purchased was then loaded on trucks engaged by the prosecution witness No.5. 5. It is sufficiently indicated that the prosecution is trying to prove that the scrap and other goods found in the premises of the respondent No. 6 – Company were issued by Railways to Nagpur Company under the issue notes, mentioned above. According to the prosecution, the Nagpur Company had no authority to transfer these articles to any third party, and since the articles were found in possession of the respondents, the prosecution was launched against them. Indeed, on the face of it, the prosecution could prove that the Railway property was suspiciously found to have been unlawfully obtained by the respondents. Having discharge this initial burden, it is for the respondents to discharge the burden to prove that the railway property which was found in their possession came into their possession lawfully. 6. The question is whether they have sufficiently discharged this burden? Their defence is already explained above. It is amply proved that the issue notes practically were title documents of the the scap in question. The issue notes were admittedly issued in favour of the Nagpur Company. So, it is the Nagpur Company which could have lawfully possessed, transported and used the scrape. If the scrape along with the title-deeds came to the respondents, it is for the Nagpur Company to explain as to how they were gone in possession 4 of the respondents. Apparently, the Nagpur Company has no concern with the respondent No. 6 – Company. In fact, they are strangers to each other. There is nothing on record to show that the Nagpur Company has explained this aspect of the case though their witnesses had come before the Court. Their witness, prosecution witness No. 9 valiantly stated that he received the scrape under the issue notes. He further stated that the articles were stored in an open plot near Bhusaval. But he certainly lied when he said that he arranged to transport the articles to Nagpur Company. He did not explain as to how ultimately the scape came to Jalna. He further admitted the prosecution witness No. 5, a Proprietor of a Transport Company transported the scape from the railway yard to the storage facility. But the prosecution witness No.5 admitted that he had prepared the lorry receipts, a mention of which is made above. In these lorry receipts, he mentioned the name of the Nagpur Company as the consignor of the goods and the name of the respondent No. 6 as the consignee mentioning its address at Jalna. As said above the respondent No.2 stated in his defence that vide the lorry receipts the scrape arrived at his premises. In view of this, the prosecution witness No. 9 has utterly failed to explain as to how the scrape in question ultimately landed in the premises of the respondent No. 6 Company. There was no possibility for the respondents to know that the Nagpur company had no authority to sell the scrape to them. It seem they procured this raw material for their business in usual manner. Since they obtained the issue notes which were the title document for the scrape there was no need for them to verify the title of the scrape. 7. Indeed even when they received the scrape at Jalna it was still a 'railway property'. The term “railway property” is defined in Section 2 (d) of the Railway Property (Unlawful Possession) Act, 1966. The definition reads as under : 5 Section 2 (d) : “railway property” includes any goods, money or valuable security or animal, belonging to, or in the charge or possession of, a railway administration.” As per the terms of contract between the railways and the Nagpur company the scrape was handed over to the Nagpur company on lien. The learned Advocate appearing for the respondents tried interpret the definition to submit that when the articles in question were delivered in possession or in charge of the Nagpur Company, the Railways lost its title to it. On plain reading of the definition, this interpretation is impossible. Nonetheless the respondents could not have suspected this defect in the title of the Nagpur company. Even when they seek to discharge the burden of proving that they obtained the railway property lawfully they need not prove their case beyond reasonable doubt. They being the accused in this case they required to prove their case on probability. I hold that they have succeeded in doing so. The appeal should fail. It is dismissed. ( A.V. NIRGUDE, J. ) SRM/criapl/163/98/241110/ok