AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1302 OF 2006 Mr. Hyder Ali Choudhary, Indian Inhabitant, the Managing Director of Choudhary Heavy Lifters, Occu: Business, having office at Unit No.124, A-1 Building, Wadala Truck Terminal, Wadala, Mumbai – 400 037. ) ) ) ) ) ) ) .... Applicant Versus 1 The State of Maharashtra through Senior Inspector of Police, Wadala Terminal Police Station, Wadala, Mumbai – 400 037. ) ) ) ) 2 Shri Ramesh Parekh ) 3 Shri Ruchir Parekh ) 4 Shri Omprakash Jhala ) 5 Mohamad Akbar Mohamad Shafi, all of Mumbai, having address at 206, Narayan Niwas, 82/86, Perin Nariman Street, Fort, Mumbai – 400 001. ) ) ) ) ) ... Respondents Mr. Rajendra Sorankar for the applicant. Ms. M.M. Deshmukh, A.P.P. for the State. Mr. P.R. Dave for respondents 2 to 4. AJN 2 CORAM : SMT. RANJANA DESAI & Dr. D.Y. CHANDRACHUD, JJ. DATED : 10TH JULY, 2008. ORAL JUDGMENT:- (Smt. Ranjana Desai, J.) 1. In this application filed under sections 482 and 457 of the Code of Criminal Procedure, 1973 (for short, “the Code”), the applicant has prayed that a direction be issued to respondents 2 and 3 to return the property involved in C.R. No.91 of 2004 to him. The property involved is a crane being Crane Model Tata P & H 955 of 75 Ton No.MH 01-T 7003 (for short, “the said crane”). The applicant is aggrieved by the order passed by learned Additional Chief Metropolitan Magistrate, 5th Court, Dadar dated 21/6/2004 rejecting his application under section 457 of the Code and order dated 11/6/2005 passed by learned 5th Additional Sessions Judge in Criminal Revision Application No.60 of 2004 whereby the order of learned Additional Metropolitan Magistrate dated 21/6/2004 was confirmed. 2. The applicant claims to be the Managing Director of M/s. Choudhary Heavy Lifters. According to the applicant, the said AJN 3 crane belongs to M/s. Choudhary Heavy Lifters. He has lodged complaint against respondents 2 to 4 and one Mohammad Akbar under section 406 read with section 34 of the IPC at the Wadala Trunk Terminal Police Station being C.R. No.153 of 2003. Charge- sheet has already been filed in the said case. During the investigation of this case, the said crane came to be seized at Jodhpur and it was in the possession of the police. 3. The applicant filed application for return of the said crane under section 457 of the Code. In the application, the applicant's case is that in the month of July, 2002, accused Ramesh Pariekh and his son Ruchir Pariekh (respondents 3 and 4 respectively) came to his office. Ramesh Pariekh is the owner of Thar Dry Port Jodhpur, Rajasthan. They came with Mohammad Akbar, the Manager of their Ganesh Crane Service Branch. Transaction of sale of the said crane took place and sale price was fixed at Rs.27,00,000/-. 4. On 29/4/2002, respondents 4 and 5 came to the applicant's office at Wadala and told him that the transaction of sale of the said crane was fixed for a price of Rs.27,00,000/-, but they did not have AJN 4 the cash with them. According to the applicant since he knew respondent 5, he believed them and agreed to sell the said crane on credit. An agreement was executed on stamp paper of Rs.20/- to the effect that if they failed to pay Rs.27,00,000/- within one month, they would be liable to pay monthly charges as per market rate to the applicant. Respondents 3 and 5 signed as guarantors on the said agreement. According to the applicant, respondent 5 and one Om Prakash (respondent 4) came to his office on 1/8/2002 and took possession of the said crane. According to the applicant, respondent 3 issued two cheques of State Bank of Patiala, Branch Vashi, New Mumbai in the sum of Rs.22,00,000/- and Rs.5,00,000/- in favour of Choudhary Heavy Lifters. The said cheques were signed by respondent 4 – Omprakash. Respondent 2 Ramesh Pariekh told the applicant not to deposit the said cheques and thus bought time till 27/12/2003. It is the applicant's case that he contacted respondents 3 and 4 and demanded the price of the said crane and Rs.13,50,000/- as rental charges of the said crane. Respondents 3 and 4 issued cheque in the sum of Rs.40,50,000/- drawn on State Bank of Patiala, Branch Navi Mumbai, but the said cheque was dishonoured on 12/5/2003. The applicant, therefore, filed the aforestated complaint against AJN 5 respondents 2 to 5. 5. The applicant has stated that in the RTO record, Choudhary Heavy Lifters are shown as owners of the said crane. According to the applicant, he possesses the Registration Certificate issued by RTO and he has signed the R.C. Book as the proprietor of Choudhary Heavy Lifters and hence, he is entitled to the interim custody of the said crane. According to him, the said crane is required for his business. In the application, he prayed that the said crane be ordered to be returned to him on such conditions as the court may deem fit. He has undertaken to produce it as and when necessary. 6. Respondent 3 Ruchir Pariekh also filed application for return of the said crane. It is his case as stated in the application that he is doing business of Port handling in the name and style of Thar Dry Port, Jodhpur. He was also the proprietor of Ganesh Crane Services till June, 2002. Thereafter, respondent 5 Omprakash became the proprietor of Ganesh Crane Services. Thar Dry Port has its office in Mumbai and respondent 5 is looking after the affairs of Thar Dry Port at their Mumbai office. AJN 6 7. According to respondent 3, the applicant is the proprietor of Choudhary Heavy Lifters and Choudhary Container Terminal. According to respondent 3, on 18/1/2002, respondent 3 had entered into two agreements with the applicant. As per the said agreements, respondent 3 had purchased the Mobile Crane of 75 tons capacity at the price of Rs.10,05,500/- and the Top Lifter of 30 tons capacity at the price of Rs.10,05,500/-. As per the agreements, respondent 3 had paid a cash of Rs.11,000/- to the applicant as advance payment for Mobile Crane and Top Lifter. It is the case of respondent 3 that an amount of Rs.5 lakhs was paid to the applicant on 18/7/2002 through cheque bearing No.936952 drawn on the State Bank of Patiala and Rs.5 lakhs have been paid through D.D. Dated 26/7/2002 drawn on the Bank of Patiala, Jodhpur Branch and thus the applicant had received entire consideration. It is the case of respondent 3 that after receipt of full and final payment for the said crane, the applicant had dispatched the said crane to respondent 3 at his head office at Jodhpur. It was received in two parts at his Jodhpur Office. According to respondent 3, as per the other agreement, he persistently asked for the delivery of the Top Lifter, but the applicant gave evasive AJN 7 answers and he later on came to know that the Top Lifter was given by the applicant on rent at Port Goa. Respondent 3 contends that advance of Rs.5,500/- for the Top Lifter is still lying with the applicant. According to respondent 3, the applicant has filed a false case against him. The applicant's case that he has forged agreements and cheques is false. Though he is asking for registration papers of the said crane, the applicant is avoiding to give them. Respondent 3's case was that the said crane was in his possession till seizure and if it is not handed over to him, his business will be ruined. He expressed willingness to execute a bond. 8. Learned Magistrate by his order dated 21/6/2004 dismissed the application of the applicant and allowed the application of respondent 3. The said crane was ordered to be returned to respondent 3 on his executing a bond of Rs.10,05,500/- and on his depositing cash security of Rs.1 lakh as a guarantee amount. We are informed that respondent 3 has executed the bond and deposited Rs.1 lakh as ordered by learned Magistrate. The said crane is in the possession of respondent 3. AJN 8 9. Being aggrieved by this order, the applicant preferred revision application in the court of Sessions, Bombay. By his judgment and order dated 11/6/2005, the Sessions Court dismissed the revision application. Being aggrieved by the said order, the applicant has preferred this application under section 482 of the Code. 10. We have heard learned counsel for the applicant and learned counsel for the respondents. Learned counsel for the applicant reiterated the contents of the application filed by the applicant. He submitted that the respondents are guilty of forgery. Agreements have been forged by them. Contrary stand has been taken by the respondents in the complaint filed in Jodhpur. Cheques given on behalf of the respondents have been dishonoured. The said crane stands in the name of the applicant in the RTO record. He is paying necessary charges in respect of the said crane to different authorities. Learned counsel submitted that both the courts have erred in handing over the said crane to the respondents and, hence, the impugned orders be set aside and the said crane be handed over to the applicant. 11. Learned counsel for the respondents on the other hand AJN 9 submitted that both the courts have accepted the respondents' case. There is no infirmity in the judgments calling for any interference with them. He reiterated the contents of the application filed by respondent 3 and submitted that the allegations of forgery are false. He submitted that he has already executed the bond and, therefore, the present application be dismissed. 12. We have carefully perused both the applications and the copies of the two agreements annexed to the application. Several disputed questions of facts and law are involved in this case which can be appreciated only after the evidence is led. We are not inclined to interfere with the impugned concurrent judgments. But, we are of the opinion that considering the fact that the said crane stands in the name of the applicant in the RTO record and the fact that cheque in the sum of Rs.40,50,000/- given to the applicant has been dishonoured, further security needs to be taken from the respondents. We are mindful of the fact that in the proceedings initiated under section 138 of the Negotiable Instruments Act, respondent 5 has been convicted and appeal carried from the said judgment is pending. But we do not want to express any opinion on the various factual and legal issues involved in this case. What AJN 10 relevance the proceedings initiated under the Negotiable Instruments Act have to the instant case and whether there is forgery or not cannot be decided at this stage. For the present, in our opinion, additional security needs to be taken from the respondents. In our opinion, in the circumstances, following order, which is without prejudice to the rights and contentions of both sides, shall meet the ends of justice. 13. Respondents 2 and 3 i.e. Mr. Ramesh Pariekh and Mr. Ruchir Pariekh shall give bank guarantee in the sum of Rs.30 lakhs to the satisfaction of the trial court within a period of six weeks from today i.e. on or before 7/8/2008. Needless to say that the said bank guarantee should be kept alive till disposal of the criminal case. We direct the learned Magistrate seized of the matter to dispose of the same as expeditiously as possible and, at any rate, within one year from the date of receipt of this order by him. We expect the parties to co-operate with the trial. We make it clear that we have not expressed any opinion on the merits of the case and learned Magistrate shall deal with the case independently. 14. Needless to say that if such bank guarantee is not furnished, AJN 11 it will be open to the applicant to approach this court and revive his application. Criminal application is disposed of. 15. At this stage, learned counsel for respondents 2 and 3 seeks stay of the order. In our opinion, since six weeks' time is granted to furnish bank guarantee, it is not necessary to stay the order. [SMT. RANJANA DESAI, J.] [DR. D.Y. CHANDRACHUD, J.]