V.N.Varma - (1.) THIS Revision raises a very interesting point. . Opposite party no. 2 (Banshi Lal) is a business man of Bareilly and runs a saop factory there. On tie night of 15/16-3-1976 a theft was committed at his factory wherein he lost money in cash to the tune of Rs. 32,800/-. Opposite party No. 2 reported the matter to the police. Applicant no. 1 (Dhara Singh) worked in his factory as an employee and his suspicion fell upon him because soon after the theft in question he absented himself from duty. The police arrested applicant no. 1 on 1-9-76 at Qutubkhana crossing and allegedly recovered Rs. 20,141/- from a brief case which he was carrying. He was then sent up to stand his trial under section 411 IPC. The trial court finding the case proved against the applicant convicted him under section 411 IPC and sentenced him to two years' RI while so convicting him the trial court further ordered that the amount of Rs. 20,141/- recovered from the possession of applicant no. 1 shall be returned to opposite party no. 2. Applicant no. 1 felt aggrieved with the order passed by the trial court and he, therefore, went up in appeal. His appeal was heard by Sri J. D. N. Shahi, Sessions Judge, Bareilly. The learned Sessions Judge allowed the appeal and acquitted applicant no. 1 of the charge levelled against him. He, however, passed no order in regard to the disposal, of Rs. 20,141/-which had been released! in favour of opposite party no. 2 by the trial court.
(2.) AFTER applicant no. 1 had beer/acquitted he, his father (applicant no. 2) and his mother (applicant no. 3) gave an application in the trial court and prayed for the release of Rs. 20,141/- in their favour. Opposite party no. 2 also filed an application and made a similar prayer in that very court. Both the applications were heard and disposed of together The learned Magistrate rejected the application of the applicants and passed an order for the delivery of Rs. 20,141/- to opposite party no. 1 on the condition that he executed a personal bond of Rs. 20,000/- with two sureties of Rs. 10,000/-each and gave a promise to restore this money if and when asked to do so by a court of competent jurisdiction. Aggrieved, the applicants went up in appeal to the court of Sessions and their appeal was heard by Sri H. N. Mittal, I Addl. Sessions Judge, Bareilly. The learned Additional Sessions Judge dismissed their appeal and confirmed the order passed by the learned Magistrate. Opposite party no. 2 then executed the required bail bonds and took the delivery of Rs. 20,141/- from the court. Dissatisfied, the applicants have now come up in revision to this court. I have heard the learned counsel for the parties at great length and after doing so I am firmly of the view that the orders passed by the courts below need modification. I find that the courts below have not approached this case in a proper manner with the result that they fell in error and passed a wholly incorrect order in this case. It is true that the applicant was convicted by the trial court under section 411 IPC and the money (Rs. 20,141/-) allegedly recovered from his possession was ordered to be returned to opposite party no. 2 but at the same time it is also true that the appeal by applicant no. 1 against his conviction was allowed and he was acquitted. After allowing the appeal, the Appellate Court, should have passed some suitable order in regard to the disposal of Rs. 20,141-/ but he did not do so. Probably this commission on its part was due to negligence or inadvertence. However, the fact remains that it passed no order in regard to the disposal of this money. The learned counsel for opposite party no. 2 contended that as the appellate court passed no specific orders in regard to the disposal of Rs. 20,141/-it should be presumed that it maintained the order of the trial court in this regard. This contention of learned counsel for opposite party no. 2 is wholly untenable and. cannot be accepted. The appeal filed by applicant was against the entire order of the trial court and once his appeal was allowed the entire order of the trial court must be deemed to have been set aside. In other words, the order of the trial court in regard to the disposal of Rs. 20,141/- would stand superseded. Opposite party no. 2 was under no confusion about this position and that is why soon after applicant no. 1 was acquitted by the Appellate Court he too made an application in the trial court for delivery of Rs. 20,141/-to him. The applicants also did not lag behind and made an application for the return of this money to them. In my opinion, the courts below were not at all justified in delivering Rs..20,141/- to opposite party no. 2. I am constrained to say so because the Appellate Court while acquitting applicant no. 1 doubted the correctness of the stroy of the theft of Rs. 32,800/- from the soap factory of opposite party no. 2. If the very story of the theft of Rs. 32,800/-was found to be doubtful then there was no question of the disputed amount of Rs. 20,141/-forming part of Rs. 32,800/-. Further no convincing evidence was found to link the recovered money with the money that opposite party no. 2 had allegedly lost. In view of this situation it was not at all proper on the part of the courts below to have released Rs. 20,141/- in favour of opposite party no. 2. The fact that he executed a personal bond of Rs. 20,000/- and furnished two sureties of Rs. 10,000/- each and promised to restore this money in court if and when called upon to do so will not make any difference to the position as it legally stood after' the acquittal of applicant no. 1. On the basis of the material present on the record of the case in which applicant no. 1 was acquitted no case for delievery of Rs. 20,141/- was made out in favour of opposite party no. 2 and the court below were not at all justified in delivering it to him. If opposite party no. 2 thinks that this money really belonged to him it is open to nine to establish his right and title to it in a competent court of law. Now, I come to the claim of the applicants in regard, to the disputed amount of Rs.20,141/-. The learned counsel for the applicants contended that as according to the prosecution case Rs. 20,141/-had been recovered from the possession of applicant no. 1 this money should be returned to him after he had been acquitted in the case under section 411 IPC. It is true that in cases like this the ordinary rule is to return the property to the person from whose possession it was recovered but in the instant case the facts of the case warrant a different course to be adopted. Applicant no. 1 did not accept the prosecution case that Rs. 20,141/- had been recovered by the police from his attachee case near Qutubkhana crossing. According to his statement made under section 313 CrPC this money had been recovered from his house in which he and his parents lived. He did not claim this money to be his own money. On the other hand, he examined his father (applicant no. 2) as a defence witness to show that this money belonged to his father. If the money belonged to his father then obviously it cannot be delivered to him. If it could have been delivered to any body at all it could have (been delivered to his father but in the present proceedings it cannot be delivered to him also because of the legal bar coming in his way. In the case under section 411 IPC he had stated that the money in question belonged to him. His statement on this point was, however, not accepted by the trial court. The trial court, therefore, did not deliver the disputed money to him but on the contrary it delivered this money to opposite party no. 2. Applicant no. 2 should have gone in appeal against the order of the trial court refusing to deliver the money in question to him but be filed no appeal against that order. It, therefore, became final so far as he was concerned. His right to claim the disputed money in the present proceedings, therefore, stands barred. It is however, open to him also to establish his right and title to this money in a court of competent jurisdiction.
(3.) THE learned counsel for opposite party no. 2 contended that as Rs. 20,141/- has already been delivered to his client he should be allowed to retain the money with him and by way of security he was even perpared to furnish a bank guarantee for it. the learned counsel for the applicants also stated that if the money in question was returned to them they too were perpared to furnish a bank guarantee for it. In this situation, I think it would be proper if no party is allowed to have the money with it. In order to keep the scales of justice even the best course would be to keep the money with the court. In the result, I allow this revision and set aside the orders passed by the courts below. Opposite party no. 2 is directed to deposit Rs. 20,141/-in the trial court immediately. The trial court will retain this amount with it till such time as the rights of the parties are determined by a competent court of law. If none of the two parties is able to establish its right and title to it, it will stand forfeited to the State. Revision allowed.;