-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRI. APPELLATE JURISDICTION APPLICATION NO.187 OF 2008 IN APPEAL NOS. 739 AND 976 OF 2006 Shri.Shabbir Kikabhai Kapadia ..Applicant Vs. The State of Mah.and Ors. ..Respondents ... Mr.Milan Desai i/b Smt.Saeeda Shaikh Advocate for Applicant Mr.H.J.Dedhia APP for State ... CORAM: S.B.MHASE AND CORAM: S.B.MHASE AND CORAM: S.B.MHASE AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATE : MARCH 17, 2008 DATE : MARCH 17, 2008 DATE : MARCH 17, 2008 P.C. P.C. P.C. 1. Heard the learned Advocate for the Applicant-Original Complainant and the learned APP for the State. 2. The Applicant was the original complainant in C.R.No.131 of 2002 of J.J.Marg Police Station, Mumbai. The Sessions Case No.1116 of 2002 arising out of said CR, is under Sections 302, 392 and 397 r.w. 34 of IPC. There are two accused in the said -2- case. After the accused came to be arrested, the trial went on. At the conclusion of the trial, by judgment and order dated 10th August, 2006, the learned Adhoc Addl. Sessions Judge, Sewree, Mumbai, convicted both the accused for the offence under Sections 392 and 302 read with Section 34 of IPC. In addition thereto, the accused no.1 came to be convicted under Section 397 of IPC. In the said judgment and order, the learned Addl. Sessions Judge directed that the seized ornaments be given to P.W.1 Shabbir Kapadia (Complainant) i.e the present Applicant. 3. The Applicant has now preferred this application for return of the stolen property in the said case. The said property is gold ornaments. The Applicant earlier had preferred Misc. Application No. 283 of 2006 before the Sessions Court, Mumbai for return of the said property in view of the judgment and order dated 10th August, 2006. In the said application, the accused persons stated that they have no objection to return of the said property to the Complainant. However, at that time, as the appeal preferred by the accused was pending before the High -3- Court, the learned Addl. Sessions Judge did not entertain the said application for return of the property as he was of the opinion that the Applicant should approach the High Court for return of the property as the appeal was pending before the High Court. 4. Looking to the facts and circumstances of this case, we are inclined to return the property i.e. gold ornaments to original Complainant-P.W.1 Shabbir Kapadia. However, the gold ornaments shall be returned to P.W.1 Shabbir Kapadia only after the Applicant furnishes an Undertaking to this Court that he will not dispose of the said property or alter it in any manner i.e. he will retain the property in its original condition and further that he will produce the same before the Court as and when required. It is made clear that the said property to be returned to the Applicant only on furnishing his Undertaking to the above effect. 5. Application is disposed of accordingly. -4- [SMT.V.K.TAHILRAMANI, J.] [ S.B.MHASE, J.] [SMT.V.K.TAHILRAMANI, J.] [ S.B.MHASE, J.] [SMT.V.K.TAHILRAMANI, J.] [ S.B.MHASE, J.]