Devilal Ratanlal Lohar Vs Kamlesh Sohanlal Lohar and Ors.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

CRIMINAL REVISION APPLICATION NO.162 OF 2021

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Devilal Ratanlal Lohar, Age 38 years
R/o.Room No.110, Sukh Shanti Society,
Road No.16, MIDC Andheri (East),
Mumbai-400 093.

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Applicant

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versus
1. Kamlesh Sohanlal Lohar,
Age 21 years,
2. Sohanlal Lohar, Age 52 years,
3. Rakesh Sohanlal Lohar,
Age 30 years,
All r/o.Room No.2/1, General Arun Kumar
Vaidya Marg, Goregaon (East), Mumbai.
4. Dinesh Ramlalji Purbiya, Age 26 years,
R/o.M & P.Dhaliya, Tal.Nath Dwar,
Dist.Rajsamand, Rajasthan State.
5. The State of Maharashtra.Respondents

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Mr.Vinod Kashid, Advocate for Applicant.
Mr.Abdullah F. Cutlariwala with Mr.Ankit Pandey, Advocate for
respondent nos.1 to 3.
Mr.A.R.Patil, APP, for State.

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CORAM :PRAKASH D. NAIK, J.

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DATE :23rd June 2022

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PC :

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1.The applicant is aggrieved by order dated 10th December 2019
and 19th December 2019 passed by Sessions Court in Sessions Case
No.169 of 2019.

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MANISH Digitally signedby MANISH SURESH SURESH THATTE Date: 2023.05.23 THATTE 11:43:25 +0530

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2.The applicant is the owner of jewellery shop at Subhas Nagar,
Rebello Compound, MIDC, Andheri (East), Mumbai. The respondent
no.1 was working in the said shop. Another person Indersingh

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Rajput was also working in said shop. The applicant went to his
native place on 28th April 2018. Keys of the shop were handed over
to respondent no.1. Various gold ornaments were lying in the shop.
On 4th May 2018, the applicant received a call that there is robbery in
his shop. The ornaments from shop were taken away. The applicant
returned to Mumbai. Respondent no.1 had lodged the FIR against
unknown persons on 5th May 2018 u/s.394, 328, 34 of IPC. During
the course of investigation involvement of respondents was
disclosed. Respondent nos.1 to 4 were arrested. Gold ornaments
were recovered.

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3.The applicant preferred application u/s.457 of Cr.P.C for return
of property viz gold ornaments of 7 kilogram and 94.500 miligram
valued approximately at Rs.1,84,45,700/- seized in crime no.210 of
2018 registered with MIDC Police Station before the Court of
Additional Chief Metropolitan Magistrate, 22nd Court, Andheri,
Mumbai. The applicant contended that he is the owner of ornaments
seized by police. The respondent nos.1 to 3 filed say and opposed
the application contending that some persons had mortgaged
jewelleries with them and the gold ornaments belonging to them
were seized by police. The learned Magistrate vide order dated 6th
June 2019 observed that the record of the case has been sent to
Sessions Court at the time of committal. In the absence of final
report it is difficult to decide interim custody of ornaments.

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4.Applicant preferred another application vide Exhibit-3 for
return of property i.e. gold ornaments of 7.094 kgs before Sessions
Court. Prosecution and accused no.2 filed say. Prosecution gave no
objection for release of articles on conditions. Vide order dated 14th

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October 2019 the Court directed that the persons named Pankaj
Mahaveer, Vanechand Jain, Bharatkumar Jain, Rameshkumar
Acharya and Prakash Badana’s say are necessary from whose
possession some of the golden ornaments in the form of fine gold are
seized. Accordingly Bharatkumar Jain and Rakesh Kumar Acharya
filed affidavit that they have no objection to release the said gold in
favour of the applicant and they will not claim the same in future.
Vide order dated 10th December 2019 it was observed that say of the
prosecution reveal that from shop owned by Bharat Kumar Jain 200
gms biscuits of gold and from Rakesh Kumar Acharya 200 gms two
biscuits of gold were recovered. In view of no objection of
prosecution and affidavit of Bharatkumar Jain and Rakesh Kumar
Acharya, the aforesaid articles can be released. The Court released
200 gms each gold fine biscuits recovered from Bharat Kumar Jain
and Rakesh Kumar Acharya to be returned to applicant on bond on
usual conditions. The application was kept pending.

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5.The applicant’s application Exhibit-3 for return of property
before Sessions Court for return of gold ornaments of 7.094 kg was
heard again. Accused no.3 Sohanlal Lohar filed application for
releasing 2300 gms gold jewellery. The prosecution had filed say to
the application submitted by applicant and gave no objection to
release the ornaments to applicant. However, prosecution raised
objection to application of Sohanlal Lohar. The learned Sessions
Judge vide order dated 19th December 2019 observed that originally
report was lodged by Kamlesh Lohar alleging robbery of gold
ornaments worth Rs.8,28,000/- and cash of Rs.45,000/-. Later on
Devilal Lohar (applicant) who is the owner of Mahavir Jewellers
informed the police about robbery of 4 kgs gold ornaments. Devilal

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had handed over shop to accused Kamlesh and Inder on 29th April
2018 and alleged incident had occurred on 4th May 2018. Hence
Kamlesh and Inder were in better position to report about actual
stock of gold on the date of incident. Accused are also running
jewellery shop by name Bhairav and it appears that panchanama was
carried out at the shop of accused. In view of no objection of
Mahesh Jain and Pankaj Sancheti Jain, at this stage case is made out
for release of gold ornaments or gold biscuits seized from them to
applicant. However, so far as the remaining gold is concerned at this
stage it is not proper to release the same in favour of applicant.
There is dispute about 2300 gms gold jewellery as both applicants
are claiming custody. If during the course of evidence, the applicant
Devilal Lohar succeed to prove the documents and ultimately his
ownership over the seized remaining gold, in that event he has
liberty to file fresh application for release of gold. Sohan Lal is
accused. Prosecution opposed to release seized gold ornaments in
favour of Sohanlal Lohar as according to prosecution it is stolen
property. Therefore there is no substance in claim of Sohanlal Lohar,
Application Exhibit-3 was partly allowed. Gold biscuits seized from
Mahesh Vanichand Jain and Pankaj Sancheti be released in favour of
applicant Devilal Lohar on executing indemnity bond. Application
Exhibit-21 preferred by Sohanlal was rejected.

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6.Learned advocate for applicant submitted that applicant is the
owner of property recovered during investigation. He is in
possession of relevant documents relating to the possession of gold
ornaments. Petitioner had filed income tax returns for the years
2017-18 and 2018-19 which shows that before the alleged incident
he was having 10 kgs opening and closing stock of gold ornaments in

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his shop. All the gold ornaments were recovered from Respondent
nos.1 and 3 under memorandum panchanama during their custodial
interrogation and some of the gold ornaments were recovered from
the field of accused. Accused no.1 was working in the shop of
applicant no.1 and initially he lodged the FIR alleging robbery.
Respondents are not entitled for property recovered during
investigation. There is no claim from any accused over 5 kgs
ornaments and claim of accused is only in respect of 2 kgs 300 gms
ornaments for which accused nos.2 and 3 had filed application
Exhibit-21 for return of property which was rejected by Sessions
Court. This applicant has claim over the property.

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7.Respondent no.1 has filed reply opposing reliefs sought in this
application. Learned advocate for Respondent nos.1 to 3 submitted
that claim of the applicant is false. The recovered property was not
from the shop of applicant. Identification of the articles is
impossible. There are rival claims of the parties in respect to the
recovered articles which can be issued at the time of trial. The FIR
was filed at the instance of respondent no.1. However, during
investigation respondent nos.1 to 4 were arrested. They were
subsequently released on bail. The muddemal property should not
be released in favour of applicant.

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8. Learned Sessions Judge has allowed the application for return of property in respect to other articles. The robbery was committed in the shop premises of applicant. Prima facie there is reason to believe that articles belongs to applicant. Applicant has claimed interim custody of articles. After accused were arrested and during the course of investigation the gold ornaments were recovered. The

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dispute is about gold ornaments weighing 2300 gms which is
claimed by accused. The prosecution had given no objection for
releasing property to applicant. Learned APP submitted that the
prosecutor’s stand is clear from say filed before Sessions Court.
Considering the circumstances, gold ornaments weighing 5.794 kgs
can be released to applicant as interim custody. Prima facie applicant
has better claim and hence on usual terms and conditions the gold
ornaments as can be aforesaid returned to the applicant by way of
interim custody.

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ORDER

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(i)Criminal Revision Application No.162 of 2021 is allowed;
(ii)The impugned order dated 19th December 2019 passed by the
Additional Sessions Judge, Dindoshi, Mumbai, is set aside;

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(iii)The investigating officer is directed to hand over the gold
seized during the investigation of the case weighing 5.794 kgs to the
applicant on executing requisite bond before the Trial Court;

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(iv)The applicant shall not alienate the property to any other
person;

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(v) The applicant shall produce the said property as and when directed by the Court;

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(vi) The applicant shall not change the form of property handed over to him;

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(vii) Revision Application stands disposed off accordingly.

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(PRAKASH D. NAIK, J.)

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MST

Devilal Ratanlal Lohar v. Kamlesh Sohanlal Lohar and Ors.

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Devilal Ratanlal Lohar v. Kamlesh Sohanlal Lohar and Ors.

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