..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1050 OF 2008 Mahesh Laxman Juwatkar. ..Petitioner. Versus The State of Maharashtra and Others. ..Respondents. .... Mr.Himanshu V. Kode, Advocate for the Petitioner. Mr.Subhash Raghunath Shinde, Respondent No.6 present in-person. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 7th October, 2008. DATED : 7th October, 2008. DATED : 7th October, 2008. P.C.: 1. Heard the learned Advocate for the petitioner-orig.complainant, respondent No.6 present in-person and the learned APP for the State. 2. The petitioner had filed a complaint against respondent Nos.4 & 5. The said complaint was under Section 138 of Negotiable Instruments Act. It was numbered as C.C. No.1363/SS/2005. In the said case, by order dated 17.2.2007 the learned Metropolitan Magistrate convicted respondent No.4 under Section 138 of N.I.Act. Respondent NO.5 came to be acquitted therein. Respondent No.4 was sentenced to suffer ..(2).. S.I. for six months and he was also directed to pay compensation of Rs.2,85,000/- within one month in default S.I. for one month. 3. The cheque in question was issued on 2.4.2004 for an amount of Rs.2,85,000/-. In the said proceedings flat No.203, 2nd Floor, Uma Niwas, New Rameshwar CHS, Pestam Sagar, Road No.5, Chembur, Mumbai -89 came to be attached. The case of the petitioner is that the flat belongs to respondent Nos.4 & 5. However, respondent No.6 states that infact the flat belong to him as it was sold to him in 1999. 4. The respondent No.6 preferred an application before the learned Metropolitan Magistrate for release of attachment of the said flat. His contention was that he is the owner of the flat. The said application came to be allowed by the learned Metropolitan Magistrate by order dated 28.2.2007. The learned Magistrate observed that presence of both the accused was secured and the trial was completed in the case under Section 138 of N.I.Act. The trial in the said case was concluded on 17.2.2007. The learned Magistrate observed that hence there was no ..(3).. impediment to release the property which was attached by the trial Court pending the trial and the flat came to be released by order dated 28.2.2007. This order is impugned in the present petition. 5. It is seen that after conviction as the compensation amount was not deposited, the complainant preferred an application dated 26.3.2007 for attachment of the flat under Section 431 Cr.P.C.. In the said matter, notice before attachment was issued to the accused, as there was no reply, flat was attached and a direction to issue letter to the Collector to put up the flat for auction by following legal procedure and sale proceeds be deposited in Court was passed in the order dated 11.5.2007. 6. After passing the above order of attachment and sale the accused by his application-cum-reply dated 18.5.2007 and 11.6.2007 objected for the attachment and auction of the flat on the ground that the property does not belong to him and he has already sold the same to his brother-in-law namely Subhash Raghunath Shinde i.e. respondent No.6 by executing registered sale-deed on 21.12.1999 in his favour. It is also submitted that this flat was mortgaged by ..(4).. Shri.Subhash Raghunath Shinde with Syndicate Bank, Worli Branch, Mumbai to obtain loan in 2000. After receiving this application-cum-reply a notice to the complainant was issued on finding her absent on that day. On receiving the said notice, she attended the Court and contested the objection raised by the accused to her application. The contention of the accused was that the accused was neither owner of the flat nor he is concerned with the said flat and therefore order of attachment and auction of said flat is unjust and improper. The submission of the complainant was that the flat stands in the name of the accused in the share certificate and the record of Housing Society and the document of conveyance deed is made by him in favour of his relative to defraud the creditors. 7. The cheque in question was issued on 2.4.2004. The flat in question was sold by accused to Subhash Raghunath Shinde i.e. respondent No.6 by registered sale deed dated 21.12.1999. It further appears that Subhash Raghunath Shinde obtained loan from Syndicate Bank on 29.4.2000 by mortgaging this flat. When the flat was sold by executing a registered sale deed on 21.12.1999 and the transaction of accused with ..(5).. complainant was held in the year 2004, it cannot be said that the flat was sold by the accused to defraud his creditors. When the transfer of title took place in the year 1999, mere formality of transferring share certificate and regarding change of name of owner in the record of society does not affect the title of respondent No.6 Subhash Shinde. When the property was sold much prior to the judgment delivered on 18.1.2007, the flat in question cannot legally be attached and auctioned. The said application, in my opinion, rightly came to be rejected by the learned Magistrate by order dated 1.10.2007. 8. Thereafter the complainant again preferred an application dated 30.3.2007 stating therein that the accused after conviction has undergone the sentence but he did not pay the compensation, hence the compensation may be recovered from him by selling the flat of accused i.e. flat No.203 in Uma Niwas. The said application came to be rejected by the learned Magistrate by observing that the flat in question was transferred to respondent No.6 by registered sale deed five years prior to the cheque being issued. The learned Magistrate observed that it cannot be ..(6).. said that the transaction is a bogus one, in order to defraud creditors, hence he was convinced that there was no necessity to attach the said flat. 9. It is seen that the trial has been finally disposed of. The trial has resulted in conviction of the accused person i.e. respondent No.4. Infact, it is an admitted fact that the accused has also undergone the sentence of imprisonment in the said case. 10. Looking to the above facts, I am not inclined to interfere with the order of the learned Magistrate dated 28.2.2007 releasing the property which was attached. No interference is called for. Writ Petition is rejected. 11. At this stage, on the request of the learned Advocate for the petitioner, the ad-interim relief which was granted by this Court in terms of prayer clause (e) shall continue for a period of four weeks from today. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)