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TMI Blog2021 (11) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Pvt. Ltd. filed complaints under Section 138 of the Negotiable Instruments Act against the Petitioner Company, being Case Nos. CC/447/SS/2005; CC/448/SS/2005; CC/449/SS/2005; CC/450/SS/2005; CC/451/SS/2005; CC/27/SS/2013. In these complaints proclamation was issued against Dinesh Singh Lakra, director of the Petitioner Company, followed by order attachment under Section 83 of Cr.P.C. of the property, being Flat No.302, at Golden Empire Co.Op. Housing Society Ltd., Mira Road, Dist. Thane ('Property' for short). Pursuant thereto, on 28th January, 2008, a District Collector, Thane was authorized to attach the property in the manner specified in Clause (a) or Clause (b) or both of Subsection (4) of Section 83 of the Cr.P.C. The order was acted upon by taking possession of the property. Be that as it may, pending attachment, the Respondent No.2 (Complainant) instituted a summary suit in the City Civil Court, Mumbai against the Petitioners, seeking money decree in the sum of Rs. 45,74,716/-. Pending suit and the attachment (under Section 83 of Cr.P.C.), accused - Dinesh Singh Lakra executed a registered agreement in respect of the said property in favour of his wife Mrs. Sonia Rajp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cr.P.C. 8. Heard. Mr. Saraogi, learned Counsel for the Petitioners and Mr. A.R. Patil, learned Prosecutor for the State. 9. It may be stated that besides the challenge to order dated 21st November, 2019 (impugned order), Petitioners are also seeking directions to Collector, Thane to remove seal put on the flat no. 302 situated at Golden Empire Co.Op. Housing Society Ltd., Mira Road, Dist. Thane (property in question) and directions to hand over the possession to them. Although these petitions were filed in 2019, the State has neither filed the reply, nor informed the Court, about the status of the said property. In the circumstances, Mr. Patil and learned Prosecutor, when called upon to apprise as to State of property in question, Mr. Patil informed as under; "that property in question is under lock and key since 2008. It was under owned by Ms. Soniya Singh. She died in pandemic. Her husband Dinesh Lakra (Petitioner No.2) stays in the flat No.202 on rental basis in the same building. It means property has not been disposed of by the State and it is in their possession." 10. In so far as the impugned order is concerned, it may be stated that pending suit and attachment under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub- section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him." 13. Section 83 of Cr.P.C. empowers the Court, issuing a proclamation under Section 82 to order the attachment of any property movable or immovable or both belonging to the proclaimed person. Subsection 4 of Section 83 provides that if property ordered to be attached is immovable, the attachment be made through Collector of District, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of attachment passed in Civil Suit. 15. Thus, in consideration of the facts of the case, it may be stated that the Petitioners were prevented by 'sufficient cause' in pursuing the remedy under Section 85 of Cr.P.C. These facts were completely ignored by the learned Metropolitan Magistrate. 16. All the same, the order passed under Section 83 is subject to Sections 84 and 85 of the code. Section 85(3) empowers the Court to decide the application on merits. The underlying scheme and object of attaching property of the absconder is not to punish him, but to compel his appearance and therefore under Section 85 of Cr.P.C., Court is empowered to release and restore the attached property. Thus, although the application is required to be made within a period of two years from the date of attachment, however if made after two, that itself shall not preclude the Court from exercising the jurisdiction under Section 85 of Cr.P.C., if reasonable cause is shown, for not approaching within the given time. If period of two years envisaged under Section 85(3) is construed literally, it shall frustrate the object of the attachment. Therefore, in my view, the Courts are bound to consider the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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