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TMI Blog2009 (8) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... ave handed over muddamal to the Department for completion of the proceedings initiated by it – Order passed by trial court had to be quashed and set aside - 206 of 2009 - - - Dated:- 4-8-2009 - M.D. SHAH J. Criminal Revision Application No. 206 of 2009 with Criminal Miscellaneous Application No. 5922 of 2009 Mrs. Mauna M. Bhatt for the applicant. K P. Raval for respondent No. 1. S. N. Divetia for respondent No. 2. JUDGMENT 1. M. D. SHAH J.- This revision under section 457 of the Code of Criminal Procedure ("the Code" for short) is taken out by the Deputy Director of Income-tax (Investigation), Unit-I(1), Ahmedabad, against the order dated April 6, 2009, passed by the learned Metropolitan Magistrate, Court No, 5, Ahmedabad, in Miscellaneous Application No. 42 of 2009 filed by the present respondent No. 2 under section 451 of the Code. 2. Shortly stated, the facts leading to filing of the present revision are t a complaint was filed by respondent No. 2, Kirtilal Dayaljibhai. Thakkar, before Karanj Police Station against his employee, Shri Shailesh alias Sagar Dilipbhai Khadgi, inter alia, alleging that the said Shri Shailesh ran away with cash amounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director of Income-tax (Investigation), learned APP, Mr. K. P. Raval for respondent No. 1-State and learned advocate, Mr. S. N. Divetia for respondent No. 2- original complainant. 7. It is submitted by Mrs. Mauna Bhatt that once custody of muddamal currency notes is taken by the Department by initiating proceedings under section 131 read with section 132 of the Income-tax Act ("the Act" for short), neither the court nor any other agency has the power to release the said muddamal. She has placed reliance, on a decision of this court reported in [2006] 1 GLR vol. 47 196; [2007] 290 ITR 449 ( Rajiv Agrawal or his successor in office v. State of Gujarat ), in this regard. According to her, the ratio laid down in the said judgment is very well applicable to the facts of the present case. Still, however, the learned Metropolitan Magistrate held that the facts of the case on hand is different from facts cited in the authority and since there is sufficient evidence on record to show that Rs. 42 lakhs are belonging to the complainant being the amount with drawn from the bank, the aforesaid judgment was held not applicable to the facts of the present case. 8. It is further submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e requisition for seizure of stolen property. According to him, section 132A of the Act more particularly clause (c) of sub-section (1) could be invoked by the Department only against a person from whom undisclosed assets which were seized have been taken into custody. The muddamal currency notes seized from Shri Shailesh alias Sagar Dilipbhai Khadgi are a stolen property. Hence, the decision in the case of Rajiv Agrawal [2006] 1 GLR vol. 47 196; [2007] 290 ITR 449 is not applicable to the case of respondent No. 2. Further, there was no material before the Department to form a belief that the muddamal amount represented either wholly or partly income or property which has not been disclosed for the purpose of the Act. It is further submitted that the summons issued under section 131(1A) of the Act on March 30, 2009, was unserved on respondent No. 2 and even the fresh summons dated April 1, 2009, was affixed at his residential premises as it was closed. Hence, the summons did not require respondent No. 2 to explain the amount requisitioned from the police authority. In view of the same, it is submitted that the summons were issued illegally and unlawfully and without any jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to see whether the applicant was entitled for custody of muddamal seized by the police for completion of proceeding initiated by the Department or not. Section 132 of the Act would be relevant in this respect. Section 132 stipulates that, on a requisition being made under sub-section (1), the officer or authority referred to in clause (a) or clause (b) or clause (c), as the case may be, of die sub-section shall deliver the books of account, other documents or assets to the requisition officer either forthwith or when such officer or authority is of the opinion that it is no longer necessary to retain the same in his or its custody. 15. Under section 451 of the Code, the criminal court has limited power to make inquiry. However, the court has no power to go in detail and, hence, specific provision is made in the Act under section 132A once the proceedings is initiated by the Department. Under section 132A of the Act, neither the court nor the police authority has the power to release the currency notes. Hence, the scope of inquiry under section 451 of the Code as also under section 132A of the Act is quite different. 16. The intention of the Legislature by incorporating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a grave illegality has been committed by the concerned police officer. The conduct of this officer also speaks volume. 20. In the entirety of the facts and circumstances narrated hereinabove, I am of the opinion that the order passed by the learned Magistrate requires to be quashed and set aside and the revision deserves to be allowed. 21. Thus, the revision is allowed. The order dated April 6, 2009, passed by the learned Metropolitan Magistrate, Court No. 5, Ahmedabad, in Miscellaneous Application No. 42 of 2009 is quashed and set aside. The muddamal currency notes, which were given to the complainant on furnishing personal bond are ordered to be handed over to the Department through the Police Inspector, Karanj Police Station, Ahmedabad, within fifteen days from today. Rule is made absolute. 22. In view of the aforesaid order passed in the main revision application, Cri. Misc. Appln. No. 5922 of 2009, does not survive and is disposed of accordingly. Notice is discharged. 23. Office shall place a copy of this judgment in each matter. 24. The observations made by this court in this judgment being made for the purpose of deciding this revision shall not prejudice the part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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