IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1798 OF 2007 Multi Commodity Exchange of India Ltd. .. Petitioner Vs. State through Local Crime Branch, Kolhapur & Ors. .. Respondents --- Mr.V.N.Singarpurkar for the petitioner. Mr.Y.M.Nakhawa, A.P.P for respondent No.1. Mr. Mundargi with Omar Khaiyam Shaikh for respondent No.2. Mr.M.K.Kulkarni for respondent No.3. --- CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 29th August 2008. : 29th August 2008. : 29th August 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . On 01st August 2008 this Court issued notice for final disposal at admission stage. I have heard the learned counsel appearing for the petitioner, learned senior counsel appearing for the 2nd respondent and learned counsel appearing for the 3rd respondent. The challenge in this petition is to the order dated 27th August 2007 passed by the learned trial Judge by which application made by the 2nd respondent under section 451 of the Code of Criminal Procedure (hereinafter referred to as the said Code) for return of muddemal property was : 2 : 2 : 2 : allowed. 2. At the instance of the 2nd respondent bank, C.R.No.22 of 2007 was registered at Shahupuri police station alleging fraud against the accused (3rd respondent) to the extent of Rs.42,61,00,000/-. According to the case made out by the 2nd respondent in the said application, the accused invested various amounts with various parties. According to the 2nd respondent, a sum of Rs.18,18,21,367/- was invested by the accused with the petitioner herein (Multi Commodity Exchange of India Ltd). According to the case made out by the 2nd respondent, a sum of Rs.38,00,000/- was invested by the accused with Angel Commodities Broking Pvt Ltd. A sum of Rs.08,73,51,548/- was deposited by the accused with the National Commodity and Derivatives Exchange. Apart from this, amounts of Rs.03,50,000/-, Rs.01,00,000/- and Rs.07,40,000/- were invested by the accused with India Bulls Securities, Kaynet Finance and Geojit Securities Ltd. In the application under section 451 made by the 2nd respondent, the prayer was for grant of interim custody of an amount of Rs.28,11,62,915/-. By the impugned judgment and order, the said application has been allowed by granting interim custody of cash amount of Rs.28,11,62,915/- to the 2nd respondent bank : 3 : 3 : 3 : till the conclusion of the trial on its executing indemnity bond of Rs.30,00,000/- and subject to conditions imposed in the said order. 3. The submission of the learned counsel appearing for the petitioner is that the petitioner had informed the Investigating Officer by letter dated 16th April 2007 that the balance in the cash margin deposit account of the 3rd respondent as on 16th April 2007 was Rs.98,60,606.85/- out of which as on that date a sum of Rs.09,53,862.11/- was the amount due and payable by the 3rd respondent to the petitioner on account of various charges. By the said letter it was also disclosed that the 3rd respondent had submitted to the petitioner towards additional margin two fixed deposit receipts issued by the HDFC bank, Kolhapur branch in favour of the 3rd respondent in the amount of Rs.01,35,00,000/- and Rs.01,65,00,000/- respectively. Submission of the learned counsel appearing for the petitioner is that apart from the fact that the petitioner was not heard at the time of passing the impugned order, the communication dated 16th April 2007 issued by the petitioner to the Investigating Officer has been completely ignored by the learned trial Judge. : 4 : 4 : 4 : 4. He stated on instructions that as of today a sum of Rs.17,29,754.36/- is due and payable by the 3rd respondent to the petitioner on account of charges and the petitioner is ready and willing to deposit the balance amount of Rs.81,30,852.49/- with the 2nd respondent bank. On instructions he stated that the two fixed deposit receipts shall be also deposited by the petitioner with the trial Court. 5. The learned senior counsel appearing for the 2nd respondent stated that for the time being and at this stage, the 2nd respondent has no objection if the impugned order is modified to the extent that the petitioner will deposit a sum of Rs.81,30,852.49/- with the 2nd respondent and that the fixed deposit receipts in the custody of the petitioner shall be deposited with the trial Court. He submitted that the 2nd respondent desires to apply for modification of the conditions imposed by the trial Court while passing the impugned order and the 2nd respondent will also make a separate application making a prayer therein as regards fixed deposit receipts in the custody of the petitioner. 6. The learned counsel appearing for the 3rd respondent relied upon the report dated 21st April 2007 : 5 : 5 : 5 : submitted by the Investigating Officer (Local Crime Branch, Kolhapur) in which it is pointed out that the 3rd respondent had invested a sum of Rs.18,85,21,367/- with the petitioner. He submitted that in accordance with the said report, the trial Court had directed the petitioner to deposit the said amount in the Court. 7. I have carefully considered the submissions. I have also perused the certified copy of the report dated 21st April 2007 submitted by the Investigating Officer. 8. The perusal of the report dated 21st April 2007 shows that the Investigating Officer has stated that from the bank account of the 3rd respondent it appears that a sum of Rs.18,85,21,367/- has been invested by the 3rd respondent with the petitioner. However, the said officer has referred to letter dated 16th April 2007 submitted by the petitioner to the investigating agency in which it was stated that only a sum of Rs.98,60,606/- was balance in the margin account of the 3rd respondent with the petitioner and the petitioner was holding two fixed deposit receipts in the sum of Rs.01,35,00,000/- and Rs.01,65,00,000/- as additional margin. Report also refers to the fact that the 3rd respondent had invested a sum of Rs.08,73,51,548/- with NCDEX and it was : 6 : 6 : 6 : reported to the Investigating Officer that as on 01st February 2007 a sum of Rs.01,69,44,094/- was available with the said NCDEX apart from the fixed deposit receipts held by the said NCDEX. 9. It must be stated here that the order impugned has been passed under section 451 of the said Code which is to operate till the conclusion of the trial. It is pertinent to note that even in the impugned order the learned Judge has referred to letter dated 16th April 2007 sent by the petitioner to the investigating agency. For the time being, the amount available with the petitioner after deducting the amount which according to the petitioner represents charges payable to the petitioner can be paid over to the 2nd respondent. The petitioner has offered to deposit the fixed deposit receipts with the trial Court. The learned senior counsel appearing for the 2nd respondent on instructions of Mr.A.B.Naik, Senior Law Officer states that indemnity bond in the sum of Rs.30 crores has been already executed by the 2nd respondent as directed by the trial Court under the impugned order. 10. It must be stated here that since I am dealing with an order made under section 451 of the said Code, : 7 : 7 : 7 : the contention raised by the 3rd respondent that the entire amount of Rs.18,85,21,367/- is pending with the petitioner is not dealt with. Modification of the impugned order made by this Court shall not be construed to mean that the contention raised by the 3rd respondent regarding availability of the entire amount invested by the said respondent has been rejected by this Court. The orders under section 451 of the said Code are not final and the same can be modified from time to time till the conclusion of trial. 11. Hence, I pass the following order: (i) The impugned order dated 27th August 2007 passed by the trial Court below Criminal Misc. Application No.182 of 2007 is modified so far as the petitioner is concerned. (ii) The petitioner will deposit a sum of Rs.81,30,852.49/- with the 2nd respondent within a period of two weeks from today. (iii) The petitioner is also directed to deposit with the trial Court fixed deposit receipt held by the petitioner bearing : 8 : 8 : 8 : No.1644850000011 dated 01st September 2006 in the amount of Rs.01,35,00,000/- as well as the fixed deposit receipt No.1644850000038 dated 15th September 2006 in the amount of Rs.01,65,00,000/- within a period of two weeks from today. (iv) This order will not prevent the 2nd respondent from applying for appropriate modification of the impugned order. It will be also open for the 2nd respondent to file a fresh proceeding for seeking appropriate directions regarding the aforesaid fixed deposit receipts directed to be deposited by the petitioner with the trial Court. (v) It is made clear that the direction issued under this order shall be acted upon by the petitioner without waiting for a copy of this order becoming available and compliance cannot be deferred on the ground that a copy of this order is not available. (vi) Application is partly allowed in above terms with no orders as to costs. : 9 : 9 : 9 : (A.S. Oka, J)