Prakash D. Naik, J.:— The Applicant has preferred this Application seeking permission to withdraw the amount deposited by Respondent No. 2 with the Registry of this Court.
2. The Applicant is Original Complainant in C.R. No. 9 of 2016 registered with Charkop Police Station, Mumbai on 7 January 2016 for the offences under sections 406 and 420 r/w section 34 of the I.P.C. The FIR was lodged against Respondent Nos. 2 and other accused persons. The grievance of the Applicant/Complainant was that false promises were made by the Accused to the Complainant that flat premises at Palghar would be handed over to him and the Accused accepted money by cheque and cash and thereafter false promises were made that the flat would be provided at Malad. Although huge amount of Rs. 1,01,50,000/- was accepted by the Accused, neither the flat was given nor the amount refunded to him.
3. The Respondent No. 2 preferred an application for Anticipatory Bail, before this Court viz. Anticipatory Bail Application No. 159 of 2016. The said Application was heard on 14 March 2016. The co-accused Bharat Bhushan preferred Anticipatory Bail Application No. 462 of 2016 which was also heard on 14 March 2016. Interim relief was granted to Respondent No. 2 and another Applicants vide common order dated 14 March 2016. The Advocate representing the Respondent No. 2 had submitted that the said accused had withdrawn Rs. 10,83,000/- and he is ready to deposit the same in this Court. The Respondent No. 2 was directed to deposit the amount of Rs. 10,83,000/- within 3 weeks in this Court without prejudice. The said amount is to be kept in fixed deposit in any Nationalized Bank. Pursuant to order dated 14 March 2016 the amount of Rs. 10,83,000/- was deposited by Respondent No. 2 in this Court. In view of this, the interim order dated 14 March 2016 was confirmed vide order dated 4 April 2016.
4. The Applicant had preferred this application on 1 September 2018 for withdrawal of the amount deposited by Respondent No. 2.
5. The contention of the Applicant is that on the basis of false representations the Applicant had parted with huge amount to the accused. The Respondent No. 2 has admittedly withdrawn the amount of Rs. 10,83,000/- and while granting Anticipatory Bail he had agreed to deposit the same in this Court. The Applicant is in financial constraints and in urgent need of money. The amount was invested out of his savings. The amount was directed to be deposited to meet the ends of justice. The Respondent No. 2 had offered to deposit the amount and the Applicant being the victim cannot be deprived of the said amount. The Applicant had parted the amount towards possession of flat which was not given to him. Charge sheet has been filed before the concerned Court. The Trial may not commence within short span of time. The Civil Court would take a longer time for recovery of the amount. The Applicant is a senior citizen. The Court can grant relief in exercise of power under section 482 of Cr.P.C. It is submitted that the preamble of the Constitution guarantees justice to commercial, social, economic and political The statement and object of Cr.P.C. indicate that law relating to criminal procedure is applicable to all criminal proceedings in India. Reliance is placed on United Nations Universal Declaration Human Rights 1948, Covenant of Human Rights and Law Commission Report of 1996. The Applicant also relied upon the order passed by the Supreme Court in Transfer Petition No. 1343 of 2008 and pointed out the observation in para 18 and 22 of decision where reference is made to ratio of decision in the case of Hussainara Khatoon v. State of Bihar and Tamilnad Mercantile Bank Shareholders Welfare Association v. S.C. Sekar, ((2009) 2 SCC 784). It is contended that the trial would take indefinite time to conclude and the Applicant would be deprived of his hard earned money. The decision in the case of Hussainara Khatoon (supra) in the aforesaid judgment was relating to this speady trial which is considered as integral and essential part of the fundamental rights to life and liberty under article 21.
6. The Learned Advocate also relied upon the order passed on Bail Application No. 931 of 2017 wherein the accused was directed to deposit the amount and the Complainant was permitted to withdraw the amount deposited by the accused seeking bail in this Court.
7. In this application this Court is concerned with the prayer for withdrawal of the amount deposited by Respondent No. 2 in Application for Anticipatory Bail.
8. The Learned Counsel for the Respondent No. 2 filed reply to the Application opposing relief prayed in this Application. It is submitted that the amount was deposited without prejudice to his defence. There is no provision in law for entertaining the Application for withdrawal of the amount. The Respondent No. 2 has filed an Application for discharge which is pending. The order granting bail clearly mention that the amount is to be deposited without prejudice. The ground stated by the Applicant claiming financial constraints and delay in trial cannot be considered for allowing such Application.
9. Respondent No. 2 has filed reply opposing this application and contended that the Applicant has filed Summary Suit bearing No. 541 of 2016 which arises out of the same transaction. The averments in the present Application and the summary suit are contrary to each other. The Applicant also filed a Summons for Judgment bearing No. 5 of 2017 in the said summary suit. The Summons for Judgment was listed for arguments before this Court on 10 November 2017. The Court has passed order that the counsel appearing on behalf of plaintiffs fairly stated that since triable issues arise in the suit, the Summons for Judgment be dismissed and the suit be transferred to the list of commercial causes. The Court dismissed the Summons for Judgment and unconditional leave was granted to the defendants therein to defend the suit. The suit was accordingly transferred to the list of commercial causes. It is further submitted that the first information report does not make out any offence against Respondent No. 2.
10. On perusal of the order dated 14 March 2016, it is apparent that statement was made by the counsel for the Respondent No. 2 that the amount of Rs. 10,83,000/- was withdrawn and he is ready to deposit the same in the Court. The Respondent No. 2 was directed to deposit the amount of Rs. 10,83,000/- within stipulated time in this Court without prejudice. It was further directed that the amount be kept in fixed deposit in any Nationalized Bank. Thus the order categorically mentions that the amount is to be deposited without prejudice. The trial is pending. This cannot be termed an Application for return of property under the provisions of Code of Criminal Procedure. The amount was not seized by the Police. The guilt of the accused is yet to be proved. In the circumstances, I do not find that the Applicant has made out any ground for allowing this Application. The trial Court, however, will be at liberty to pass appropriate orders with regard to the said amount at appropriate stage.
11. Application is rejected.