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B.S. Tookappa Vs. the State by Ripponpet Police - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1977CriLJ1850
AppellantB.S. Tookappa
RespondentThe State by Ripponpet Police
Excerpt:
.....make an application for condonation. - while making the order of disposal of such property the learned magistrate could deliver it to any person claiming to be entitled to the possession thereof or otherwise meaning thereby that the property could be delivered even to a person not claiming to be entitled thereof, provided the learned magistrate was of the opinion that in the best interest of the property as well as of the parties involved the property need be delivered to him. therefore, the argument of the learned counsel that some arbitration proceeding was pending or that there was a contemplated civil suit for rendition of account would be of no consequence, ft cannot be stated that the proceedings in the criminal court were to remain suspended because of an intended civil..........was obtained releasing the seized paddy in favour of the accused. against that order passed by the learned magistrate obviously under section 451, both the complainant and the accused came in two revisions cr. r. p. nos. 464 and 504 of 1973 before the high court. it was held on 11-1-1974 that the accused would remain in possession of the property seized and if he would be able to dispose of the paddy, he would give security to the extent of the market value of the paddy. accordingly the accused gave security to the court to the extent of rs. 14,000/- said to be the market value of the paddy. thereafter, the learned magistrate, before whom the trial was pending, decided the case and acquitted the accused on 6-9-1975. while making the order of acquittal, the magistrate further ordered.....
Judgment:
ORDER

D.B. Lal, J.

1. This revision is directed against the judgment of the Sessions Judge Shimoga confirming on appeal Under Section 454 of the Code of Criminal Procedure the judgment of the Judicial Magistrate First Class, Sagar, and thereby sanctioning the disposal of property in favour of the complainant.

2. The accused one B. S. Tookappa is the proprietor of a rice mill known as Sri Veerabhadreswara Rice and Flour Mill situate at the village Benavalli of Hosanagar Taluk. He was appointed as sub-agent by the Taluk Agricultural Produce Co-operative Marketing Society Limited, Hosanagar (hereinafter to be referred as the Co-operative Society). The Co-operative Society was engaged in procuring levy of paddy from the growers through the Food Corporation of India. After the levy was complete, the Co-operative Society used to hand over the paddy to the petitioner-accused for keeping the same in their godown for which charges were to be paid. Upon receiving directions from the Co-operative Society, the paddy was required by the petitioner-accused to be hulled, for which hulling charges were paid. Accordingly between the dates 1-5-1973 and 24-5-1973 cer tain transactions were made between the Cooperative Society and the petitioner-accused and on 24-5-1973, 345 bags of paddy weighing 258 quintals and 75 Kgs. were found entrusted for hulling to the petitioner-accused. Out of the total quantity supplied for hulling, 126 quintals of paddy were return ed back to the Co-operative Society by the accused on 24-5-1973. In this manner 132 quintals of paddy remained to be supplied and since the accused refused to supply the same, a complaint was filed against him by the Co-operative Society on 30-7-1973. That was a complaint for the offence Under Section 409 of the I. P. Code. During the investigation, the police seized from the possession of the accused 149 quintals and 70 Kgs. of paddy under Exhibit P. 12 on 5 8-1973. It appears the accused claimed Rs. 796/- for hulling charges and a further amount of Rs. 1000/- which he had deposited with the Co-operative Society for the security.

3. While the case was pending before the Magistrate, some interim order was obtained releasing the seized paddy in favour of the accused. Against that order passed by the learned Magistrate obviously Under Section 451, both the complainant and the accused came in two revisions Cr. R. P. Nos. 464 and 504 of 1973 before the High Court. It was held on 11-1-1974 that the accused would remain in possession of the property seized and if he would be able to dispose of the paddy, he would give security to the extent of the market value of the paddy. Accordingly the accused gave security to the Court to the extent of Rs. 14,000/- said to be the market value of the paddy. Thereafter, the learned Magistrate, before whom the trial was pending, decided the case and acquitted the accused on 6-9-1975. While making the order of acquittal, the Magistrate further ordered Under Section 452 for disposal of the property seized which was the subject matter of the dispute. The learned Magistrate ordered that the paddy was already sold by the accused and as it was entrusted to him and obviously belonged to the complainant, the latter was entitled to get its possession. Since the security deposit was there before the Court, the learned Magistrate directed that a sum of Rupees 1796/- due from the Co-operative Society to the accused be defrayed from the total security and the rest of the amount being the money equivalent to the paddy seized be given to the Co-operative Society, The accused felt aggrieved by the decision of the learned Magistrate and came in appeal before the learned Sessions Judge Under Section 454. The learned Sessions Judge, however agreed with the learned Magistrate and dismissed the appeal. The present revision is directed against that decision of the learned Sessions Judge.

4. The case regarding disposal of property incorporated in the order of the learned Magistrate lay Under Section 452 of the Code of Criminal Procedure and a perusal of that section indicates that the Magistrate had the jurisdiction, to make such order as he thought fit for the disposal of the property produced before him or in his custody or regarding which any offence appeared to have been committed. While making the order of disposal of such property the learned Magistrate could deliver it to any person claiming to be entitled to the possession thereof or otherwise meaning thereby that the property could be delivered even to a person not claiming to be entitled thereof, provided the learned Magistrate was of the opinion that in the best interest of the property as well as of the parties involved the property need be delivered to him. That is so because the order of the learned Magistrate is only a tentative arrangement. The final title to property or right to possess the same are to be determined by the Civil Court or any other Court of competent jurisdiction. Therefore, the argument of the learned Counsel that some arbitration proceeding was pending or that there was a contemplated civil suit for rendition of account would be of no consequence, ft cannot be stated that the proceedings in the criminal Court were to remain suspended because of an intended civil litigation, The learned Magistrate had the jurisdiction to exercise Under Section 452 and in case he exercised that jurisdiction in the best manner possible, perhaps this Court will not interfere in revision.

5. The main contention of the learned Counsel has been that there was a contract of bailment between the accused and the Cooperative Society and that the accused had a lien over the goods which he could detain until the accounts were properly rendered and until the equities were settled between the parties. For all this, the learned Magistrate was required to go into a detailed study of so many complicated questions of civil law. He had to find out as to what transactions passed on between the parties, what law was applicable to such transactions, if a lien arose in favour of either party and if such a lien arose, to what extent the goods could be detained by the accused. In my opinion such complicated questions of civil law were not required to be decided by the learned Magistrate, Before him, the simple question was, as to which of the party Was best entitled to possession and after considering the right to possess claimed by either party, if the learned Magistrate decided in favour of one and against the other that should be the end of the matter so far as his Court was concerned. In Sri Prem Chand Kar v. State of West Bengal 1963(1) Cri LJ 117 (Cal) a learned Judge of Calcutta High Court has very succinctly put the shape of controversy before the Magistrates in such cases. While dealing with a case Under Sections 517 and 523 of the then Code of Criminal Procedure, the learned Judge observed as below :

It is within the jurisdiction of the Magistrate to pass orders both Under Section 517 as also Under Section 523 to dispose of the property seized in a summary manner and may according to his discretion deliver the property to the person, who according to his summary enquiry was found entitled to present possession thereof, if any party is aggrieved by such an order, his remedy lies in the appellate or the revisional Courts and the propriety or otherwise of such an order cannot be questioned in any Civil Court. The orders Under Section 517 and Section 523 do not settle any rights or confer any title. They are merely empowering sections to dispose of the property seized in a summary way. The orders are concerned only with the right to immediate possession and not to the question of title or proprietary right to the property. The jurisdiction of the Civil Courts to decide the question of title to the property in such a case remains unaffected.

Therefore, one has to see whether in the instant case the learned Magistrate has rightly exercised his jurisdiction.

6. As the facts of the present case reveal, there was a clear finding by the learned Magistrate that 132 quintals of paddy were entrusted to the accused. In other words, a categorical finding was given in favour of the complainant namely, the Co-operative Society that, it was the owner of the paddy which was entrusted to the accused for a specific purpose. The learned Magistrate however found that criminal breach of trust was not made out, meaning thereby that there was no criminal intention to misappropriate the paddy. In fact the accused had never disowned, that the paddy did not belong to the Co-operative Society, With that finding one has to judge as to whether the learned Magistrate was justified to return the paddy to the complainant. The primary contention of the learned Counsel for the petitioner was on Exhibit P-9, said to be a letter under which 135 quintals of paddy were released in favour of the complainant. It is stated that if that quantity is taken into account, perhaps the entire 132 quintals of paddy were returned to the complainant and something excess was due to be returned back to the accused. In his judgment the learned Magistrate has explained the letter Exhibit P-9 and he was clearly of the opinion that 135 quintals of paddy said to have been returned never related to the paddy released for hulling purpose. It was rather the quantity returned from the godown which was not meant for hulling and therefore the balance of 132 quintals remained unaccounted for until 30-7-1973, In that connection questions Nos. 10 and 11 were asked from the accused, in his statement Under Section 342 of the then Code of Criminal Procedure. The first question related to Exhibit P-8 a letter dated 30-5-1973 in which the accused himself informed the Co-operative Society that he was possessed of the balance of 132 quintals which were meant for hulling and the accused admitted that he did send that letter.

The second question related to 13-7-1973 when the stock verification was made at the instance of the Co-operative Society and the accused did not produce before the person conducting the stock verification any account to show that 132 quintals were released in favour of the Co-operative Society. From these two answers elicited from the accused, the learned Magistrate concluded that it was almost an admitted case on behalf of the accused that 132 quintals of paddy still remained to be supplied because otherwise the accused was bound to have asserted in his very answers with reference to Exhibit P-9 that already on 27-7-1973 135 quintals of paddy meant for hulling was released and therefore his letter dated 30-7-1973 and the stock verification conducted on 13-7-1973 could be taken in a different light and should not be constituted to mean that he acknowledged the present liability for 132 quintals of paddy. That apart, it was never the defence of the accused that he in fact returned 135 quintals of paddy from the hulling account and that nothing was due from him, He gave a vague statement that his hulling charges were not paid, that his security was not returned and that near about 15 quintals were to be returned by the Co-operative Society to' him. It appears, the case of the accused all along had been that there were a number of transactions between him and the Co-operative Society and unless a complete accounting was taken, it was difficult to say if any quantity of paddy was due to be returned by the accused to the Co-operative Society.

7. In the grounds taken in the revision, it was nowhere pleaded that 135 quintals of paddy out of the hulling account were returned to the Co-operative Society and so the entire fabric of the prosecution case was incorrect. There the emphasis was, to the arbitration proceedings, to the accounting that was yet to be rendered between the parties and to the lien claimed by the accused for suspending the return of the paddy to the Co-operative Society. The learned Counsel further contended that there was no evidence to indicate that the paddy seized was out of the stock of 132 quintals. But that question loses any significance. The reason is, that under the very orders of the Court, the paddy is now sold and only its value remains with the accused for which he has given the security to the Court. It is rightly contended by the learned State Public Prosecutor that once the finding was arrived at in the Court of the Magistrate that the paddy belonged to the complainant, the right to possess accrued in their favour and the decision for disposal of property Under Section 452 was likely to be made in favour of the complainant. At any rate, the order of the learned Magistrate could not be questioned on the ground of its correctness, legality or propriety and hence no interference need be made in revision.

8. The learned Counsel for the petitioner relied upon several cases, but reference need be made to two Supreme Court cases, (i.) Pushkar Singh v. State of Madhya Bharat : AIR1953SC508 and (2) State Bank of India v. Rajendra Kumar Singh : 1969CriLJ659 . These two cases referred to Section 517 of the then Code of Criminal Procedure and laid down the law as to who should be held to be having a 'right to possess' with reference to that section. In the opinion of the Supreme Court if a Magistrate considers a party having right to possess and delivers property to him, the revising Court will not interfere unless it is found that the decision is perverse or illegal, in the sense that the person entitled to possession does not have any right to possess the property. In the first case of 1953 certain money was found in possession of the accused which was alleged to be stolen from the complainant. It was found by the Court that the money belonged to the accused and not the complainant. The accused was acquitted. The Court held that the payment of money to the complainant could not be ordered and the money was to be returned to the accused. In that case, it is evident, a clear finding was given that the accused was held to be having a right to possess the property and Under Section 517 the property was delivered to the accused. In the second case of 1969 certain currency notes were handed over to the accused for the criminal purpose of duplication. In the course of business a bank received those notes from the accused. Ultimately the accused was acquitted and the Bank claimed the notes. The Supreme Court held that the right to possess was with the bank because the very delivery of the notes to the bank amounted to transfer of title in favour of the bank. Since the bank had the right to possess, the decision according to the learned Judges should be in favour of the bank and the notes were to be delivered to the bank. That case again turned upon the question regarding right to possess and on the facts decided it was held that the person entitled to possession is the one who has a right to possess the property. In the instant case the right of possession, as held by the Magistrate, was in favour of the Cooperative Society. That being so, the Cooperative Society having a right to possess was rightly held to take possession of the paddy or its equivalent value, The learned Magistrate has further decided the equities, so far as he could do, in the proceedings before him, inasmuch as, he deducted from the security the sum of Rs. 1796/- due from the Co-operative Society to the accused. To that extent the order of the learned Magistrate could not be considered to be incorrect or illegal in any manner.

9. In this view of the matter, in my, opinion, the order regarding disposal of property passed by the learned Magistrate cannot be questioned on the ground of correctness, legality or propriety and as such no interference need be made by this Court. The petition is without any merit and the same is dismissed.


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