- (1.) UPON the complaint of petitioner Tara Chand, regarding the misappropriation of four golden Gokhroos (Bangles) case was registered against Ganesh Mal N. P. No. 2 and on challan being filed he was tried for the charge under S. 406 I. P. C. by the Judicial Magistrate, Abu Road. The learned Magistrate vide judgment dated December 4, 1984 held him guilty of the charge and sentenced him to one year's R. I. under S. 406 I. P. C. It was ordered that the golden 'kada' recovered from accused Ganesh Mal may be given to complainant Tara Chand after the expiry of the period of appeal. Ganesh Mal preferred appeal in the court of Sessions Judge, Sirohi. The learned Judge vide judgment dated August 17,1988, allowed the appeal and acquitted Ganesh Mal of the charge. The order regarding the disposal of property was also reversed and it was ordered that the 'kada' may be returned to Ganesh Mal after the expiry of the period of revision/appeal. Tara Chand complainant feeling aggrieved by the order of the appellate Court regarding the disposal of the property, has invoked the revisional jurisdiction of this court.
(2.) THE learned counsel for the petitioner strenuously contended that the learned Sessions Judge has, legally erred in deciding the question of title of the 'kada' in question and instead of directing the parties to get the question of title decided by a competent Civil Court, reversed the order of the Magistrate regarding the disposal of the property. It has been vehemently stressed by the learned counsel for the petitioner that despite Ganesh Mal not filing of separate appeal against the order of the trial Court regarding the disposal of the property, the learned Judge reversed the order in that regard in the appeal challenging the judgement of conviction. Another ground of attack by Mr. Joshi, learned counsel for the petitioner is that without establishing the claim of the property, Ganesh Mal has been given benefit by the appellate court and as such the appellate court's order so far as it relates to the disposal of the property is liable to be set aside. The learned counsel for Ganesh Mal, N. P. No. 2 controverting these contentions argued that no separate appeal was required for setting aside the order regarding the disposal of the property. That, a prayer to that effect has been made in the appeal. It has also been argued that the order of acquittal has become final and when Ganesh Mal has not been held guilty of any misappropriation of property, the learned Judge has rightly ordered for delivery of the property to Ganesh Mal from whose possession it was recovered. It has also been contended that there was no necessity of any decision of the Civil Court because there is a specific finding that the recovered 'kada' has no connection with the 'gokhroos' said to have been pledged by Tara Chand with Ganesh Mal. Both the learned counsel placed reliance on certain authorities to substantiate their respective contentions, which I would presently discuss. The allegation against Ganesh Mal was that on February 22, 1966 Tara Chand pledged with him four 'gokhroos' weighing 115 gms. for consideration of Rs. 1000/- taken as loan by him. That, out of that amount he paid Rs. 600/ -. That, he offered the remaining amount and the interest and wanted Ganesh Mal to return his ornaments but Ganesh Mal avoided the matter for about two years and Tara Chand initiated criminal proceedings against him in the year 1976. During the course of investigation one golden 'kada' weighing 123 gms. and 313 ml. gms. was recovered from Ganesh Mal accused. The learned trial Judge was of the opinion that the 'kada' was got prepared by melting the 'gokhroos'. The appellate Court did not agree with that finding and held that in. view of the evidence pledging of any ornament by Tara Chand with Ganesh Mal was not proved, nor was there any connection between the 'gokhroos' and the 'kada' that is , there is no material to suggest that the 'kada' was of the gold melted from the 'gokhroos' as claimed by Tara Chand complainant. The finding of the appellate Court regarding the prosecution case for the charge under S. 406 I. P. C. not being established against Ganesh Mal, has become final because the judgement of acquittal by the appellate court has not been challenged anywhere. The point about the requirement of separate appeal against the order of disposal of property was raised before the appellate court and the appellate court has discussed in detail the law on the point and has rightly arrived at the conclusion that no separate appeal was required. The memo of appeal shows that prayer was made for setting aside the order of the trial Court regarding the disposal of property also and for return of golden 'kada' to Ganesh Mal. The question regarding the finality of judgment came for consideration before their Lordships of the Supreme Court in the case of Amritlal Ratilal Mehta & another vs. State of Gujarat (1 ). In that case the charges were under ss. 477-A/34 and 420/34 I. P. C. The facts required to be established for both the offences were basically the same. The acquittal for the offence under S. 477-A/34 having become final, their Lordships were pleased to hold that the reversal of acquittal for offence under s. 420/34 I. P. C. cannot stand.
(3.) PLACING reliance on this authority, Mr. Singhi, learned counsel for non-petitioner No. 2 contended that the judgment of acquittal has become final and when Ganesh Mal has not been held guilty for the charge under S. 406, the property recovered has been rightly- ordered to be delivered to him by the learned Sessions Judge. The learned counsel for the petitioner submitted that he is not challenging the order of acquittal but he is confining his arguments regarding the order of disposal of the property passed by the appellate Court. The contention of Mr. Joshi is that the order regarding the disposal of the property is challengeable even in cases where the accused are acquitted of the charges of theft or misappropriation of money. According to Mr. Joshi, in such cases the Court should direct the parties to get the question of title decided by a Civil Court. To substantiate his point, Mr. Joshi referred to the principle enunciated in the case of Malabar Cashewnuts and Allied Products Quilon and others vs. State of Kerala and ors. It was a case where the goods seized from the lorry driven by the accused were kept by the police under the orders of the Criminal Court and were released to the accused on his furnishing cash security in the Court. On acquittal the accused made an application for return of the security amount. A third person also made a similar application for return of the security amount to him on the ground that he was the owner of the goods and the security deposit was a benami deposit made by him in the name of the accused. The contention of the person making such an application was that as he was not a party to the case, the Criminal Court cannot decide the question of benami and therefore, the order of the Court under S. 452 directing the third person to get a decision regarding his title to the goods and the deposit being benami from a Civil Court would be proper. There was no decision regarding the ownership of the property and dispute regarding the title and therefore, the above referred authority is of no help to the petitioner. ;