1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL APPLICATION NO. 475 OF 1999 1 Vidhyadhar S. Joshi 2 Mrs.Yashoda V.Joshi 3 Mr.Vasudeo V.Joshi ...Applicants All residing at 27, Yamuna Chawl, Shastri Hall,Tardeo Road,Mumbai-400007 vs. 1 Central Bureau of Investigation having their office at Tanna House,Mumbai 2 State of Maharashtra 3 Bank of Baroda 4Mr.Ramchandra Shridhar Joshi ...Respondents Mr.Mahesh Joshi i/b M/s.O.P.Soni & Co. for the applicants Mr.J.C.Satpute and Mr.H.V.Mehta for C.B.I. Mr.H.J.Dedhia,A.P.P. For State CORAM :A.S.OKA,J. DATE : JUNE 8, 2009 JUDGMENT : 1 Heard learned counsel for the applicants and the learned counsel for the first respondent. None appears for the third respondent (Bank of Baroda). None appears for the fourth respondent. 2 According to the case of the applicants, the first applicant on his retirement received provident fund to the extent of Rs.40,000/-. He invested the said amount in a fixed deposit. Apart from the said amount invested in fixed deposit, the applicant deposited certain other amounts in fixed deposits with the third respondent Bank of Baroda. The said fixed deposits were renewed from time 2 to time. The fixed deposit receipts were in joint name of the applicants and the fourth respondent who is the real brother of the first applicant. The said fixed deposit receipts were attached at the instance of the first respondent-C.B.I. The particulars of the said fixed deposit receipts have been incorporated in Exh.A annexed to application. The applicants are admittedly not concerned with the crime. 3 The applicants made an application being Misc. Application no.936 of 1997 before the learned Special Judge seeking release of the amount payable under the said five fixed deposit receipts. The case of the applicants was that the amount invested under the said fixed deposit receipts has nothing to do with the amount which was allegedly procured by the accused by practising fraud. The said application was decided by the learned Sessions Judge by order dated 17th December 1997. In the said order, the learned Special Judge noted that the prosecution (first respondent-C.B.I.) had no objection for release of the amounts covered by the said fixed deposit receipts. By the said order, the learned Special Judge directed that the applicant shall be entitled to receive the amount payable under the said fixed deposit receipts. On the basis of the said order, an application was made by the applicants to the third respondent-Bank of Baroda for release of the amounts payable under the 3 fixed deposit receipts. By communication dated 5th January 1998, the third respondent informed the applicant that the third respondent was not made a party to the application filed by the applicant. By the said communication the applicants were informed that unless C.B.I instructs the bank to release the amount, the same cannot be released. A communication was issued in February 1998 by the Superintendent of Police of the first respondent-C.B.I to the third respondent informing the 3rd respondent-bank that the learned Special Judge has permitted the release of the amount covered by the said fixed deposit receipts. As the amounts were not released, the applicants made an application being Misc. Application no.518 of 1998 for seeking direction against the said bank. 4 The said application was disposed of by order dated 29th June 2009. In the said order, a statement was recorded that the C.B.I has already handed over the original fixed deposit receipts to the applicants for getting the amount released from the bank in accordance with the order and that the C.B.I has no claim or objection about it. The learned Special Judge observed that it is open for the applicants and the said bank to agitate their claim about the fixed deposit receipts before the proper forum. With these observations, the learned Special Judge dismissed the said application. The 4 challenge in this applicatin is to the said order dated 29th June 1998. 5 On 22nd March 1999, this application came up before this court for admission. Paragraphs 2 and 3 of the order passed on that day read thus : 2 The grievance now made by the petitioners is that in spite that respondent no.3 bank is not releasing the amount covered under those 5 FDRs. The learned counsel appearing for the bank stated that the respondent no.4 was one of the joint depositor. He was employee of the bank and hence he could claim higher rate of interest. The petitioners were not entitled for the same. Hence, he is objecting for release. 3 It is pointed out that the amount as of today of five FDRs comes to Rs.1,04,533/- 6 On 1st April 1999, after hearing the Advocate for the third respondent-bank, this court issued rule and permitted the applicants or any of them to withdraw a sum of Rs.75,000/- out of the said amount of Rs.1,00,000/-. Withdrawal of the said amount was permitted without giving any security. The applicants were permitted to withdraw the balance amount of Rs.25,000/- on furnishing adequate security. Accordingly, amounts were withdrawn by the 3rd applicant. Bank guarantee in the sum of Rs. 25,000/- was submitted. 7 I have heard the learned counsel for the applicants and the learned counsel for the first respondent-C.B.I. 5 None appears for the third repsondent-Bank of Baroda as well as the fourth respondent. 8 Perusal of the orders dated 29th June 1998 and 17th December 1997 passed by the learned Special Judge show that the first respondent C.B.I categorically stated before the learned Special Judge that the C.B.I has no objection if the amount payable under the fixed deposit receipts is released in favour of the applicants. The order dated 17th December 1997 records that the fixed deposit receipts were handed over to the third applicant. Communication dated 5th January 1998 sent by the third respondent shows that the five original fixed deposit receipts were submitted to the third respondent bank. Even the order dated 29th June 1998 records that the C.B.I had already handed over fixed deposit receipts to the applicants and the C.B.I had no claim over the amount payable under the fixed deposit receipts. 9 There is no reply filed by the third and fourth respondents to this application. The order dated 22nd March 1999 passed by this court in this application shows that the amount payable under the fixed deposit receipts was Rs.1,04,533/-. 10 The fixed deposit receipts were seized at the instance of the first respondent-C.B.I The first respondent has no objection if the amounts payable under 6 the fixed deposit receipts are paid to the applicants. Out of the total amount payable under the fixed deposit receipts, the applicants have already received a sum of Rs.1,00,000/- . The applicants are entitled to receive the balance amount payable under the fixed deposit receipts. As stated earlier, this application has not been contested by the third and fourth respondents. 11 Hence, the application is disposed of by passing the following order : i) The third respondent bank is directed to pay to the applicant the balance amount payable under the fixed deposit receipts, the particulars of which are set out in the Exh.A to this application. ii)The balance amount with interest accrued, if any, shall be paid by the third respondent to the applicants within a period of four weeks from the date on which a certified copy of this order is submitted by the applicants to the third respondent. The amount shall be paid to the applicants or to any one of them subject to consent in writing of the other applicants. iii)The bank guarantee submitted by the applicants in the sum of Rs.25,000/- stands discharged. iv)The impugned ordes are accordingly modified. v) Criminal application is accordingly allowed with no order as to costs. JUDGE