Babu Lal Jain vs State of Haryana

R.L. Anand, J.

Though in the considered opinion of this Court, the present criminal revision has become infructuous on account of the main F.I.R. out of which the present revision for the superdari of the goods the subject matter of the F.I.R. has arisen, yet in order to obviate any chance of remand by the higher Court, I would like to dispose of the revision petition on merits by discussing the facts and the submissions which have been raised before this Court by the respective counsel for the parties.

Shri Babu Lal Jain, who was the complainant of F.I.R. No. 457 dated 28th May, 1996 registered at Police Station Central, Faridabad, has filed the present criminal revision and it has been directed against the order dated 20th August, 1996 passed by the Court of Additional Sessions Judge, Faridabad, who accepted the revision petition filed by M/s Exquisite Enterprises, and set aside the order dated 22nd July, 1996 passed by the Court of Additional Chief Judicial Magistrate, Faridabad, who earlier ordered for the release of the goods in question in favour of the complainant Shri Babu Lal Jain on his furnishing superdarinama in the sum of Rs. 75,00,000/ with one surety in the like amount to the satisfaction of the S.H.O. concerned, with the condition that he shall keep intact the case property and shall not change its nature or dispose of it till the final decision of the case. The learned Additional Sessions Judge, however, ordered that the goods in the shape of 48000 skins be released to M/s Exquisite Enterprises through Shri H.S. Bali, its partner, on furnishing superdari in the sum of Rs. 75,00,000/ with one surety in the like amount to the satisfaction of the trial Court; undertaking to keep the goods intact till the disposal of the case by using proper preservative and storing them at a proper place, and to produce them in the Court at the time of the trial as and when so directed by the Court during the pendency of the case.

Brief facts of the case can be described as follows :

Shri Babu Lal Jain, styling himself as Managing Director of Tonk Tanneries (P) Ltd. (Rajasthan), lodged F.I.R. No. 457 dated 28th May, 1996 in Police Station Central, Faridabad, against Shri G.S. Bali, his son Shri H.S. Bali and one Mr. S.S. Sethi, alleging that these three persons had hatched a conspiracy and in pursuance of the said conspiracy 48,000 and odd raw skins, belonging to M/s Tonk Tanneries Pvt. Ltd., carrying on business at Tonk (Rajasthan), had been allegedly misappropriated by Shri G.S. Bali in connivance with his son Mr. H.S. Bali and one Mr. Sethi, and that Mr. G.S. Bali in the capacity of Director of the said Company had taken away the skins for finishing to the premises of M/s Exquisite Enterprises, of which he and his son are the partners and Dr. (Lt. Col.) G.S. Bali had also taken the chemicals etc. belonging to M/s Tonk Tanneries Pvt. Ltd. (for short ''the company'') and had removed the account books of the Company in order to fabricate the evidence prejudicial to the interests of the Company and its shareholders. Before I proceed further, it may be mentioned that this F.I.R. has been quashed by this Court vide order of the even date, mainly on the ground that firstly it is not established on the record that the skins in dispute were actually the property of M/s Tonk Tanneries (P) Ltd. and that the subjectmatter of this F.I.R. was also the subjectmatter of F.I.R. No. 122 dated 31st October, 1994 registered at Police Station Sadar, Tonk (Rajasthan), and that there was a crude attempt on the part of Shri Babu Lal Jain when he lodged the second F.I.R. No. 457 dated 28th May, 1996 in connivance with the Haryana Police and realising that the Police of Rajasthan had come to the conclusion that no criminal offence was made out against Dr. G.S. Bali and the other accused of the said F.I.R. It has also been held in the separate judgment that ingredients of Section 406, I.P.C., are not prima facie attracted and at the most a case of civil liability has been converted into a criminal liability and for that reason the Police of Rajasthan had in its wisdom thought it proper not to prosecute the accused, and realising that problem, Shri Babu lal Jain had misused the process of law when he lodged another F.I.R. on the similar allegations, which were the subjectmatter of F.I.R. No. 122 dated 31st October, 1994. While quashing F.I.R. No. 457 dated 28th May, 1996 this Court has derived support from the famous case reported as State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 S.C. 604, and other authorities on the subject.

During the course of investigation of F.I.R. No. 457 dated 28th May, 1996, 48,000 skins, which were taken into possession from the custody of M/s Exquisite Enterprises, became the subjectmatter of superdari and to get the superdari different persons, namely, Canara Bank, the accused, namely, Dr. G.S. Bali, Shri H.S. Bali and Shri Babu Lal Jain complainant, M/s. Exquisite Enterprises through its partner Shri H.S. Bali and M/s Red Cat Overseas, moved separate applications before the trial Court, high lighting entitlement to the release of the goods on superdari. I need not incorporate the averments of the Canara Bank and M/s. Red Cat Overseas, but it will be useful for me to incorporate the stand taken up by M/s Exquisite Enterprises, who stated before the Magistrate that the Police had seized the stock of the skins lying in its godowns at the instance of Shri Babu Lal Jain. There is no evidence with the Police regarding the entrustment of the skins in any manner or form by Shri Babu Lal Jain or M/s Tonk Tanneries Pvt. Ltd. to M/s Exquisite Enterprises. Out of the goods 8,935 skins are of buff calf. With these skins neither the complainant nor anybody else has any concern. 6,950 skins have been imported by M/s Exquisite Enterprises and there are 7,997 sheep and goat skins, which were received from other sources or purchased by M/s Exquisite Enterprises. In addition to this, 13,025 skins of M/s Red Cat Overseas Inc. are also under Police custody.

Shri Babu Lal Jain claimed the superdari of seized goods alleging that the case property belonged to M/s Tonk Tanneries Pvt. Ltd. and he is one of its Directors. Dr. G.S. Bali, accused of F.I.R. No. 122 dated 31st October, 1994, and F.I.R. No. 457 dated 28th May, 1996, gave in writing to the Bank and signed the statement and also informed the Bank that the goods were in his possession at the premises of M/s Exquisite Enterprises at Faridabad. The accused had made admission to the Bank that all possible record was taken by him, when he was the Additional Director of M/s Tonk Tanneries Pvt. Ltd. This accused has signed the Bank statement and admitted the entrustment of the goods as partner of M/s Exquisite Enterprises Pvt. Ltd. It was further pleaded that the skins were the property of M/s Tonk Tanneries Pvt. Ltd. and had been rightly seized. The stock was intact at the time of the seizure and the complainant had also identified the accused at the time of the recovery. The learned Magistrate vide order dated 22nd July, 1996 allowed the application of Shri Babu Lal Jain and the reasons advanced by the learned Addl. Chief Judicial Magistrate are contained in paras Nos. 8, 9, 10 and 11 of the order, which are reproduced as follows :

"8. The goods in question have been seized in case filed under Section 406, I.P.C. against Shri H.S. Bali and others. This FIR was lodged on the report of Mr. Babu Lal Jain of M/s TTPL. On the allegations that the skins purchased and received for job work were converted into ''wet blue'' as such at Tonk. Mr. G.S. Bali has factory of his own at Faridabad, named M/s Esquisite Enterprises. This factory is managed by him and his son Mr. Harbir Singh Bali and Manager M.S. Bali. Mr. G.S. Bali on the pretext of finishing the skins took the aforesaid skins along with chemicals and equipments to the Faridabad factory situated at 5B15A, Industrial Plot, Mathura Raod, Faridabad, in total 53,605 wet blue skins have been taken by him to his Faridabad factory. He has acknowledged the fact of these goods in his possession to the Bank. Mr. G.S. Bali under the preplanned conspiracy started destroying the record of the company regarding transfer of some skins to him. He under the preplanned conspiracy cheated the complainant by taking away the aforementioned skins along with some chemicals. It is further the case of the complainant that Mr. G.S. Bali had also stolen the books of account, signed cheque book, stock records, Cforms and other records from the company premises. In view of this FIR, the goods in question were seized by the Police.

The Canara Bank has claimed the release of goods in its favour on the ground that the same were hypothecated with the bank and the goods have been shifted from TTPL to M/s Esquisite Enterprises without permission of the bank, as the case property were hypothecated with the bank. Bank has first charge over the goods and the goods should be given to the bank. The bank has claimed to produce an agreement of hypothecation which could show that the goods in question were in fact hypothecated with Canara Bank. Also the goods of such nature, if released in favour of the bank, the bank may not have proper arrangement for keeping the goods. In fact, as such, it is not in the interest of justice to release the goods in favour of the bank at this stage.

Further, there is nothing on record to show that 13,025 wet blue sheep skins of foreign origin form part of the seized goods and further belonging to M/s Red Cat Overseas Inc. The goods were seized from the possession of accused on the complaint of Babu Lal Jain. Thus the goods are to be returned to its true owner. For want of proof that 13,025 wet blue sheep skins are owned by M/s Red Cat Overseas Inc., therefore, the release of this number of wet blue skins in favour of M/s Red Cat Overseas Inc. is disallowed.

The goods in question were seized from the premises of M/s Esquisite Enterprises Pvt. Ltd. Sh. Babu Lal Jain complainant has claimed the ownership of these goods as that of M/s. TTPL. Photocopy of letter dated 22.2.1994 written by Harbir Singh Bali partner of M/s Esquisite Enterprises to the Chief Manager, Canara Bank, Jaipur, shows that the accused have themselves admitted the ownership of the goods as that of M/s TTPL. It is specifically mentioned in this letter that the goods in question were received from TTPL. Though they have denied that the goods were hypothecated with the bank, yet they have categorically admitted the ownership of the goods as that of M/s TTPL. Not only in one letter, but in letter dated 21.1.1994 also the accused have admitted the ownership of goods as that of M/s TTPL. Under these circumstances, I am of the considered view that the ends of justice would be met in case the goods in question be released on superdari in favour of Mr. Babu Lal Jain complainant."

Aggrieved by the order of the learned Magistrate, this Court has been informed that two revision petitions were filed one by M/s Exquisite Enterprise in the Court of Additional Sessions Judge, Faridabad, and one by M/s Red Cat Overseas Inc. in this High Court. Ultimately, the revision filed by M/s Red Cat Overseas Inc. was dismissed as withdrawn with the passing of the impugned order by the Additional Sessions Judge, Faridabad, on 20th August, 1996. Learned Additional Sessions Judge set aside the order of the learned Additional Chief Judicial Magistrate and while doing so, he had incorporated his own cogent reasons, which are contained in paras Nos. 10 to 20, which I would like to reproduce in order to appreciate the contentions raised by the learned counsel for the parties, as follows :

"10. After giving thoughtful consideration to the above rival claims of the learned counsel for the parties and the case law cited above, I have little hesitation in holding that our own Hon''ble High Court in Amarjeet Singh Chadha''s case (supra) had entertained the revision against the order passed by the Addl. Sessions Judge in a revision filed in his Court against the order passed by the learned trial Magistrate under Section 451, Cr.P.C. Hon''ble Rajasthan High Court in Raju''s case (supra) also held that this revision against the order passed under Section 451, Cr.P.C., was maintainable.

In another authority reported as Surjeet Singh v. Harbans Singh etc., 1995(1) C.L.R. 659, our own Hon''ble High Court held that ordinarily if rights of the parties are not decided or affected, it will be taken as an interlocutory order for the purposes of Section 397(2) of the Code of Criminal Procedure. In the light of the above observation made by Hon''ble High Court and Amarjeet Singh Chadha''s case (supra), the other authorities of the Single Bench of other High Courts are cited by learned counsel for the respondents need not be discussed.

Relying upon the view of our own Hon''ble High Court, I hold that the revision filed against the order passed under Section 451, Cr.P.C., is maintainable.

Be that as it may, as per the view of our own Hon''ble High Court expressed in Surjeet Singh''s case (supra), in this case also the learned lower court while passing the impugned order seems to have travelled beyond the scope of the provisions of Section 451, Cr.P.C. Perusal of para No. 10 of the order shows that the learned lower court observed that the delivery of the property seized had to be given to its true owner. Surprisingly, there is nothing on file to satisfy the court that Babu Lal Jain was the owner of this property seized. Learned lower Court merely relied upon the letters written by Harveen Singh Bali and Dr. G.S. Bali, Partners of M/s Exquisite Enterprises to the Chief Manager, Canara Bank on 22.2.1994 and 21.1.1994. Vide letter dated 21.1.1994 Dr. G.S. Bali admitted the fact that 11,540 skins were lying in their stocks. He further made it clear that these goods were not hypothecated with any bank. Vide letter dated 22.2.1994 written with reference to the above letter dated 21.1.1994, the signatories Dr. G.S. Bali and Harveen Singh Bali made it clear that the above goods were received by them from M/s Tonk Tanneries Pvt. Ltd. for finishing.

But for these two letters, there is nothing coming on behalf of Shri Babu Lal Jain to establish his title with regard to 48,000 skins lying seized in this case. On the basis of these two letters also, the ownership of 11,540 skins cannot be taken to be that Tonk Tanneries Pvt. Ltd., particularly when Canara Bank, vide its letter dated 25.11.1993 addressed to Dr. G.S. Bali, Director of Tonk Tanneries Pvt. Ltd. as well as Director, M/s Exquisite Enterprises and to Shri Babu Lal Jain, Director Tonk Tanneries Pvt. Ltd, made it clear that in September 1994 no such skins were there in the godowns of M/s Exquisite Enterprises. It was further written in the letter that the godowns were visited in September 1994. Thus from the letters mentioned above, it can hardly be taken that Babu Lal Jain proved his ownership with regard to the skins seized by the Police.

On the other hand, M/s Exquisite Enterprises have placed on file a letter dated 23.5.1996 vide which they had received 13,025 sheep wet blue skins for finishing from Red Cat Overseas Inc. They also placed on file other challans reflecting the receipt of further skins in between 9.4.1996 to 22.5.96. They have further placed on file certain vouchers dated 14.5.96 and 7.5.96 vide which they had purchased about 10,000 skins from Thekedar and Company. Further 3,500 skins were purchased from Chawla Traders vide memo. dated 5.5.1996. The copies of bilties have also been placed on file which reflect that the goods were received by transportation.

Skins are also shown to have been purchased from Zaz Co. 1,000 skins were shown to have been purchased from Gopal and Sons. Further 8,000 skins were shown to have been purchased from N.D.B. & Sons. 833 pieces were shown to have been purchased from Kind Traders. When this plethora of evidence is there on file besides the documents reflecting the despatch of finished goods by M/s Exquisite Enterprises, there was nothing before learned lower court to release the goods on suprdari in favour of Shri Babu Lal Jain merely on the basis of his being complainant.

Surprisingly, this Babu Lal Jain has nowhere given the specifications of the skins which might have been misappropriated by the accused. On the other hand, M/s Exquisite Enterprises gave specifications of the skins which contained imported goatskins, buff calf skins and wet blue skins. Therefore, in case learned lower court had decided to release the goods in favour of its owner, then prima facie the same should have been released in favour of M/s Exquisite Enterprises from whose possession the same were seized by the Police. Still the identity of the goods has not been established. Shri Babu Lal Jain has not been able to place on file any record which could reflect the transportation of goods by him from M/s Tonk Tanneries to Faridabad. He has also not been able to show his concern with 48,000 skins seized in this case.

In these premises, abovementioned two letters written by accused H.S. Bali and Harveen Singh Bali to Canara Bank could not be taken to have established the ownership of Shri Babu Lal Jain with regard to all these skins.

Be that as it may, in almost all the authorities cited herein before, the goods were ordered to be released on superdari to the person from whom they were taken in custody or to the person who had established his ownership beyond doubt. In this case when the identity of the goods is yet to be established and there is plethora of evidence in support of the claim of the accused that they were owners of the goods and more so when the goods have been seized from the premises of the accused, the safest course to keep the skins intact till the disposal of the case shall be to release the same on superdari to these persons from whom they have been seized.

Admittedly when there is no proper place for storing the goods in the police station and for keeping them intact till the disposal of the case as the same are in the shape of skins as could perish without proper preservation, certainly the goods have to be released on superdari to the person from whom they were recovered."

This time Shri Babu Lal Jain, the complainant, has come in the present revision as he was not satisfied with the order passed by the learned Additional Sessions Judge, Faridabad.

I have heard Shri Ashok Aggarwal, Advocate who has also been assisted by Shri S.S. Pattar, Assistant Advocate General, Haryana, appearing on behalf of the State; and Shri Baldev Singh, Advocate, appearing on behalf of respondents Nos. 2 and 3.

The first submission which was raised by Shri Ashok Aggarwal, learned counsel for the petitioner, in this case, was that the learned Additional Sessions Judge committed a patent illegality when he entertained the revision petition against the order of the Additional Chief Judicial Magistrate, as in the opinion of Shri Aggarwal, the order of the learned Additional Chief Judicial Magistrate was interlocutory order and the revision under Section 397, Cr.P.C., was barred. In support of his contention, the learned counsel for the petitioner relied upon Surjit Singh v. Harbans Singh and others, 1995(1) RCR (Crl.) 740 : 1995(1) All India Criminal Law Reporter 770 ; Smt. Anisa Begum v. Masoom Ali and another, 1986 Crl.L.J. 503; and Vasu v. Unnikrishnan, 1983 All India Criminal Law Reporter 277. Learned counsel Shri Ashok Aggarwal also submitted that the case law relied upon by the learned Additional Sessions Judge, Faridabad, was not applicable to the facts in hand.

On the contrary it has been submitted that the order of the learned Additional Chief Judicial Magistrate was not an interlocutory order, but it had adjudicated the rights visavis the petitioner and the respondents and in these circumstances the revision was maintainable and the order has been rightly passed.

After considering the rival contentions of the parties, this Court is of the opinion that the first contention raised by the learned counsel for the petitioner is devoid of any merit. This point had also been ably discussed by the revisional Court in paras Nos. 9 and 10 of the impugned order, which I have already reproduced above. Section 397(2) of the Code of Criminal Procedure bars the entertainment of a revision if the impugned order is interlocutory in nature. If the order is not interlocutory in nature, the revision is always competent. Whether an order is interlocutory or interim and whether it has decided the rights of the rival parties or not, will be seen with reference to the impugned order itself and the claim of the respective parties. It cannot be said that only order passed under Section 451, Cr.P.C. will be considered as interlocutory. In the present case the stand of M/s Exquisite Enterprises was that the seized goods were never in the ownership of M/s Tonk Tanneries Pvt. Ltd and that these goods were purchased by them from different firms and Shri Babu Lal Jain under the garb of the fact that Dr. G.S. Bali is one of the Directors of M/s Tonk Tanneries Pvt. Ltd and also partner of M/s Exquisite Enterprise, had taken undue advantage of the situation by alleging that the subjectmatter of F.I.R. No. 457 dated 28th May, 1996 had been misappropriated by the partners of M/s Exquisite Enterprises. Once the entrustment by M/s Tonk Tanneries Pvt. Ltd. of the goods of that company is not established, and once it is proved prima facie that the seized goods are the property of M/s Exquisite Enterprises, the superdari cannot be given to Shri Babu Lal Jain or to any other person except to M/s Exquisite Enterprises, and specially in view of the fact that the goods have been seized from their possession and they are the prima facie owners of the goods. Against this stand of M/s Exquisite Enterprises, the learned Magistrate gave the finding by holding that the seized articles are the prima facie property of M/s Tonk Tanneries Pvt. Ltd., and the same is the stolen property. In the light of this finding, this Court feels that the rights of the parties had been adjudicated to a great extent and in these circumstances the revision was maintainable as the nature of the impugned order passed by the Additional Chief Judicial Magistrate was not interlocutory but it was a final order with regard to the adjudication of the title with respect to the disputed goods. The case law which has been relied upon by the learned counsel for the petitioner is distinguishable on facts. In Smt. Anisa Begum''s case (supra) it was simply held that the order under Section 451, I.P.C., does not decide anything finally. It is made during the progress of the inquiry or trial for a specific purpose, i.e., interim custody of the property produced before the Court. It is a different thing that while passing it the court may, inter alia, take into consideration as to who is the person prima facie entitled to its possession, but that would not mean that any party is entitled to interim custody of the property as of right. If the court does so, it is only to facilitate proper exercise of judicial discretion and nothing more. In these circumstances, it was observed by the Delhi High Court that the Sessions Judge or the High Court does not have jurisdiction to revise such an order of the Magistrate in view of the specific bar contained in S. 397(2) of the Cr.P.C. Present is a case where the learned Magistrate wrongly took the view that the seized articles are prima facie the property of M/s Tonk Tanneries (P) Ltd. and there was an entrustment on the part of Dr. G.S. Bali to the firm M/s Exquisite Enterprises, of which he is one of the partners along with his son Shri H.S. Bali. The other case law relied upon by the learned counsel for the petitioner, i.e., Surjit Singh''scase (supra) is not applicable to the facts in hand. That was a case where the prayer for permission to crossexamine the witness by the counsel for he petitioner was granted by the trial Court and in these circumstances it was held by the High Court that a revision against that order was not maintainable in the Court of Session. Incidentally the case law, which has been relied upon by the learned counsel for the petitioner, was also taken note of by the learned Additional Sessions Judge.

Shri Baldev Singh, learned counsel appearing on behalf of respondents Nos. 2 and 3, has drawn my attention to the citation reported as Raju and others etc. v. State of Rajasthan, 1992 Crl.L.J. 723. This authority was also incidentally discussed and relied upon by the revisional Court. The ratio of this case is very near to the facts in hand. A tractor was seized during the course of investigation and an application for the release of the tractor was moved by its owner. The Magistrate rejected the application. A revision was filed against that order. An objection was taken that the revision was not maintainable in view of Section 397(2), Cr.P.C. The objection was overruled and it was held by the Rajasthan High Court that the revision was maintainable. In the present case also M/s Exquisite Enterprises even prima facie proved before the revisional Court its ownership over the goods and the revisional Court rightly came to the conclusion that it was not established prima facie on the record that the property seized at one stage was the property of M/s Tonk Tanneries Pvt. Ltd. and it was entrusted to Dr. G.S. Bali on behalf of M/s Tonk Tanneries Pvt. Ltd.

In the light of the above, I repel the first argument of Mr. Ashok Aggarwal, learned counsel for the petitioner, when he made a faint attempt to convince this Court that the revision was not maintainable.

On merits it was submitted by the learned counsel for the petitioner that it had been admitted by Dr. G.S. Bali and his son Shri H.S. Bali that the seized goods were received by him from M/s Tonk Tanneries Pvt. Ltd. for finishing, vide letter dated 22.1.1994, which was written by these persons with reference to letter dated 21.1.1994. It has also been pointed out by the learned counsel for the petitioner that Dr. G.S. Bali and his son Shri H.S. Bali had written a letter to the Chief Manager that 11,440 skins were lying in their stock and that these goods were not hypothecated with any bank. This submission was also taken note of by the learned Additional Sessions Judge in para Nos. 14, 15 and 16 of the impugned order and this Court has no reason to differ with the reasons advanced by the revisional Court. The complainant has nowhere given the specifications of the skins which had been misappropriated by the accused. On the contrary, M/s Exquisite Enterprises had prima facie convicted the Court below that the goods were their property. On beig satisfied that the goods prima facie belonged to M/s Exquisite Enterprises and that it was not a stolen property, the goods had been rightly entrusted on superdari to M/s Exquisite Enterprises Pvt. Ltd. The revisional Court took all safeguards to protect the interests, if any, of the complainant when it called upon M/s Exquisite Enterprises to furnish a security.

While dealing with any revision, this Court has to work out very strong grounds made by the revisionist before upsetting the impugned order. If this Court feels that there is no patent illegality or material irregularity in the impugned order causing any serious prejudice to the petitioner, the revision cannot be allowed. After scanning the impugned order passed by the learned Additional Sessions Judge, this Court is of the opinion that there is no patent illegality or infirmity in the impugned order.

Resultantly, the present revision petition is hereby dismissed on both the counts, firstly that it had already become infructuous with the quashment of F.I.R. No. 457 dated 28th May, 1996 and secondly, even on merits, this revision lacks any dent.