WP.270-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 270 OF 2010 Pawan Nathulal Choradia ...Petitioner Vs. State of Maharashtra & Ors. ...Respondents *** Mr. L. S. Thakur i/b H. R. Sharma, for the Petitioner. Mr. P. S. Hingorani, APP for Respondent No.1. Mr. Dipen Furia with Ms. Uma Jha i/b M/s. Niranjan & Co. for Respondent Nos. 3 to 8. *** CORAM: V. M. KANADE J. DATE : SEPTEMBER 9, 2010 P.C. 1. Heard the learned counsel for the petitioner. The petitioner is challenging the order dated 13th January, 2010 passed by the 26th Metropolitan Magistrate Court at Borivali, who was pleased to reject the application filed by the petitioner herein for return of the property. 2. The learned counsel for the petitioner submits that the petitioner is the original complainant and he has lodged FIR against the WP.270-10 - 2 - respondents/accused, alleging that he has taken away his gold bar, weighing 6 Kg. 638 grams, 640 miligrams. It is alleged that accused was working as manager and on the pretext of showing it to the customer, he took away the said gold bar. The complainant having realized that the gold bar was stolen by the accused, he lodged the complaint. The police thereafter arrested the accused and his accomplices and the gold bar was recovered at their instance from respondent Nos. 3 to 8. 3. At this stage, the learned counsel appearing for respondent Nos. 3 to 8 appeared and made a request for adjournment. He submitted that the matter may be kept on Monday. Request is declined. He submitted that the gold bars were recovered by the police from respondent Nos. 3 to 8. He submitted that in the first complaint which was filed by the petitioner, he had stated that only gold weighing 1600 gms was stolen from him. It is submitted that the petitioner has not established that he is the owner of the said gold bar. On the other hand, it is submitted that respondent Nos. 4 to 8 are owners of the gold bar. He submitted therefore that as long as question of ownership of gold bar is not determined, the application of the petitioner should not be entertained. 4. In the present case it is an admitted position that the WP.270-10 - 3 - petitioner is a complainant who has lodged the complaint of theft of gold bar. Initially, in the first statement he had stated that gold bar was weighing 1600 gms. However in the supplementary statement, he stated that weight of the gold bar was 8 Kgs. The gold thereafter was recovered at the instance of the accused under S. 27 of the Evidence Act from respondent Nos. 4 to 8. At the time of recovery of gold bar from these respondents, a panchanama was drawn and signatures of the panchas have been obtained. The recovery of the gold at the instance of the accused is admissible in evidence. It is well settled position in law that during pendeny of the trial, the owner of the property can apply for return of the property. The contention of the learned counsel for respondent Nos. 4 to 8 that gold bar should be retained by the police during pendency of the trial, in my view, cannot be accepted, in view of the recovery of the gold bar from respondent Nos. 3 to 8 at the instance of the respondents/accused. It is an admitted position that initially, when an application for return of property was filed, the police and the accused had given their no objection for return of the property to the original owner. Even today the learned APP appearing on behalf of the State submits the police has no objection if the gold is returned to the original complainant/owner, provided he gives adequate security to the Court and WP.270-10 - 4 - undertakes that he shall produce the said gold bar as and when required before the Court. In my view, the lower Court therefore, was not justified in rejecting the application of the original complainant. 5. The writ petition is therefore, allowed. The impugned order is set aside. The police are directed to return the gold bar weighing 6 Kg. 638 grams, 640 miligrams to the petitioner herein. Before returning the property, the gold valuer shall make an assessment of the gold bar and give his report about the weight, and market value of the property as of today to determine level of surety. The complainant before receiving delivery of the gold shall execute an undertaking and an indemnity bond in favour of the investigating officer that he will return the said property as and when called by the Court. He shall also given an undertaking that he shall not sell or dispose of the said property during pendency of the trial. In the indemnity bond value of the gold should also be mentioned. The trial Court, namely 26th Metropolitan Magistrate Court at Borivali shall give notice to respondent Nos. 4 to 8 before finally deciding the issue of ownership, on merits and in accordance with the law. 6. It is however, made clear all contentions of the petitioner and respondent Nos. 3 to 8 are kept open. I am informed that respondent Nos. 4 of 8 have filed the criminal revision applications in the Sessions WP.270-10 - 5 - Court. In view of the order passed by this Court, the said criminal revision applications have become infructuous. However, all the contentions of the respondents are kept open and shall be decided at the time of hearing of the trial. The trial of the proceedings before the trial Court is expedited. [ V. M. KANADE J.]