A.M. Bhattacharjee, J.
1. On the complaint of the Respondent shering Wangdi, a police case Under Section 420/379/ 34, I. 'p, C. was instituted against three accused persons on the allegation that the accused No. 1, Thendhup sold oranges Of his orchard to the complainant for Rs. 400/- and then again sold the same oranges to the accused No. 2 Sonam and accused No, 3 Tashi for Rs. 500/-.
2. The trial Court, however, discharged the accused No. 2 and No. 3 on the finding that they were bona fide purchasers for value without any knowledge of the prior sale by the accused No. 1 in favour of the complainant and the trial Court then proceeded with the trial against the accused No. 1, Thendup and ultimately convicted him Under Section 420. IPC and sentenced him to undergo Rigorous Imprisonment for one month and also to pay a fine of Rs, 200/-, in default to further suffer Rigorous Imprisonment for 15 days. It was further ordered that out of the amount of fine, if paid, a sum of Rs. 150/- was to be paid to the complainant. We have now been told that the accused No. 1 did not pay the fine and has accordingly suffered imprisonment. The oranges, which were seized from the possession of the accused No, % sonam, were sold under orders of the trial Court during the pendency of the criminal case and the sale proceeds thereof were kept in deposit by the police.
3. The accused No, 2, who was discharged as stated above, applied to the trial Court for a direction to pay to him the sale proceeds of the oranges; but the trial Court, by the impugned order, has directed that if the complainant was not paid the amount of Rs. 150/- out of the amount of fine deposited, if any, then the entire sale-proceeds, and if the complainant was so paid, then the balance of the sale-proceeds after deducting the aforesaid amount of Rs. 150/- were to be paid to the complainant and in the latter case, the amount of Rs. 150/-so deducted was to be deposited as fine realised. Being aggrieved by this order, the accused No. 2 has preferred this appeal.
4. We have heard Mr. N. K. P. Saraf, the learned Advocate for the appellant, Mr. Anup Deb, the learned Advocate for the complainant-Respondent, and Mr. N. B. Kharga, the learned public Prosecutor for the State and we are satisfied that the trial Court went wrong in passing the impugned order, which must, therefore, be set aside.
5. Mr. Saraf has drawn our attention to the recent decision of the Supreme Court in N. Madhavan v. State of Kerala AIR 1979 SC 1829 :1979 Cri LJ 1197) and has contended that the said decision is a clear authority for the proposition that where after an inquiry or trial, the accused is discharged or acquitted, the Court should return the property to the person from whose custody it was taken. It is difficult to accept such a blanket proposition that a discharge or acquittal of the accused would entitle him to the delivery of all the properties recovered from his custody and no such broad proposition has been laid down by the Supreme Court in N. Madhavan's case supra). In fact, the Supreme Court in that decision has pointed out that Section 517 of the Criminal P. C. 1898 refers to four types of properties, namely (a) which i-i produced before the Court, or (b) which is in the custody of the Court, or (c) regarding which any offence appears to have been committed, or (d) which has been used for the commission of any offence and invests the Court, at the conclusion of the inquiry or trial, with the discretion to order disposal thereof by (i) destruction, (ii) confiscation, or (iii) delivery to any person entitled to the possession thereof. And the Supreme Court has pointed out further that in that case property did not fall under class (c) or (d, as it was not a property regarding which any off offence was committed or which was used for the commission of any offence, and that it fell under class (b) only, that is. it was a property in the custody of the Court. And in that context the Supreme Court has observed (at 1831) that one of the 'well-recognised principles is that when after an inquiry or trial the accused is discharged or acquitted, the Court should normally restore the the property of class (a) or (b) to the person from whose custody it was taken' and that 'departure from this salutary rule of practice is not to be lightly made when there is no dispute or doubt...that the property in question was seized from the custody of such accused and belonged to him',
6. But, as already noted, the finding in this case is that the oranges were already sold by the accused No, l to the complainant for valuable consideration and were thereafter again sold to the appellant and, therefore, even though, as found by the trial Court, the appellant was a bona fide purchaser for value without any notice or knowledge of such prior sale and even though the oranges were recovered from his custody, yet it cannot be disputed, particularly after the conviction of the accused No. 1. on that score, that regarding these Prances, the offence of cheating was committed by the accused No. 1. That being so, the case falls under class (c) as noted above, and, therefore, the ratio of the decision of the Supreme Court in N. Madhavan's case supra) cannot obviously apply here, which would apply only when the property does not fall under class (c) or (d).
7. But even then, that is, even though the case falls under class (c, as the offence was committed in respect of these oranges, we are of opinion that the oranges or their sale-proceeds are to be delivered to the appellant. As already noted, it has been found by the trial Court that the appellant and his son were bona fide purchasers of these oranges for value and without notice of any prior sale and that the oranges in fact were recovered from the possession of the appellant. These in our opinion are sufficient to confer on the appellant the rights to possess those oranges within the meaning of Section 517 of the Criminal P. C. and to make him one 'claiming to be entitled to the possession thereof' within the meaning of that Section. The decision of the Supreme Court in State Bank of India v. Rajendra Kumar AIR 1969 SC 401 :19G9 Cri LJ 659, to which the attention of the learned Counsel for the parties was drawn by us, is a clear authority for this view.
8. In that State Bank of India's case supra, the accused was found to be guilty Under Sections 420, 406 and 120B of the I. P, C. in respect of some currency notes belonging to the Respondent Nos. 1 and 2. These currency notes were, however, recovered from the possession of the appellant State Bank of India; but the High Court, while convicting the accused, ordered these notes to be delivered to the Respondents No. 1 and No. 2 to whom they belonged and who were deprived thereof by the accused by the commission of the offence, On appeal by the State Bank of India the Supreme Court set aside the Order of the High Court in respect of the delivery of the currency notes to the original owner, i. e., the Respondents No. 1 and No. 2 and directed the delivery thereof to the State Bank of India from whose possession those were recovered. The Supreme Court pointed out that though it was not expressing 'any concluded opinion in this case on the ultimate question of liability for payment of the money as between the appellant on the one hand and the Respondents Nos. 1 and 2 on the other', yet as the appellant obtained the possession of these notes in the normal course of its business and without any knowledge or suspicion of their having been involved in the commission of any offence, the High Court in 'circumstances of this case' 'should have directed the return of the said currency notes to the appellant which has the 'right to possess' the currency notes within the language of Section 517 of the Criminal P. C'.
9. It may be noted that under the provisions Section 30 (1, Sale of Goods Act, 1930, 'where a person having sold goods, continues in possession of the goods, the delivery or transfer by that person of the goods under any sale or other disposition thereof to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same'. This is really one of the exceptions in respect of movable properties to the general rule of law expressed in the maxim 'nemo dat quid non habet', that is, no one can transfer a better title than he himself possesses. This being the position, the appellant in this case, having, according to the finding of the trial Court, purchased the oranges for value and without notice of the previous sale by the accused No. 1 to the complainant, can contend that he has acquired not only a right to possess but also a right to own the oranges and that the original buyer, the complainant, can only recover damages from the seller, the accused No. 1, but cannot recover the oranges from the appellant. But following the line adopted by the Supreme Court in the State Bank of India's case 1969 Cri LJ 659)(supra, we would also not express any concluded opinion as to the ultimate question of the rights and liabilities between the appellant and the complainant or any other party, as it is sufficient fox our present purpose to hold, as we do, that the appellant had full right to possess the goods and the same having been recovered from his possession, the goods or the sale proceeds thereof were to be returned to him,
10. We, therefore, allow the appeal, set aside the order of the trial Court and direct that the entire sale-proceeds of the oranges be paid to the appellant.