Mr. PRAKASH VERNEKAR VS STATE OF GOA

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Mr. Prakash Vernekar S/O Shri vs State Of Goa,

14 June 2007

Equivalent citations: 2007 CriLJ 4649

Bench: N Britto

The Additional Sessions Judge in Panaji issued an order on October 27, 2006, which is being challenged in this revision petition. The order relates to a criminal case (no. 205/1996/C) brought by respondent no. 2, the first informant, that involved gold pieces of varied weights (MO.7 to 14) that were taken from the possession of the petitioner, a jeweler. The petitioner appealed the result after the order instructed that the gold pieces be given back to respondent No. 2.

To resolve this revision petition, certain facts need to be presented.

FACTS OF THE CASE

Respondent No. 2’s home was the scene of a theft on July 13, 1995, which led to Felix Fernandez prosecution under Sections 457 and 380 I.P.C., 1860. [1]
On January 8th, 2001, Fernandes was subsequently found guilty and given a sentence by the Learned J.M.F.C. in Mapusa. [2]
The gold objects, including MO. 7 to 14, were to be given to the first informant, or respondent no. 2, following the judgment.
The verdict and sentencing are now considered final. The portion of the order requiring the return of the gold items to respondent number 2 was where the petitioner decided to appeal the ruling to the Court of Sessions.
On December 1st, 2003, the learned First Additional Sessions Judge in Panaji dismissed the appeal.

The first informant in the aforementioned case was questioned on or about January 24, 1997.

Before it, the first informant had submitted a request on October 14th, 1996, asking for the return of the gold ornaments (Mo. 1 to 6) and the gold pieces (Mo. 7 to 14). In response to the application, the learned J.M.F.C. issued an order on October 15th, 1996, indicating that the property would only be released following an appropriate investigation.

ISSUE OF THE CASE

The first informant submitted a further application on March 10, 1998, and it was handled in an order dated August 17, 1998. According to the decision, the issue will be decided following an investigation, at which both the petitioner and the accused were to be present.
On September 25, 1998, the petitioner submitted his application claiming ownership of the gold jewellery after receiving the notification for the first informant’s application. He claimed that after being beaten and threatened with arrest, the things were seized from him forcibly.

On October 16, 2004, this Court ordered an investigation into the contradicting statements of the petitioner and the first informant over the gold pieces (i.e., MO. 7 to 14), which were the subject of a criminal revision application that was submitted on January 2nd, 2004. The inquiry aimed to ascertain who was legally entitled to custody of the gold pieces, and both parties were allowed to present their cases and supporting documentation. In the criminal case, the petitioner was examined as PW5, whereas the first informant was examined as PW1. [3]

ARGUMENTS AND EVIDENCE OF THE CASE

The first informant identified herself as AW1 throughout the investigation and offered proof by displaying the recovery panchanama dated 3.10.1996. She requested testimony from the investigating officer, Shri Mohandas Naik, in support of this evidence. She also displayed the FIR and requested testimony in favour of it from Shri Valaulikar, who had recorded it. She also provided further supporting documentation for her assertion.
In contrast, the petitioner identified himself as a witness and asked Rajesh Naik to give a statement. Rajesh stated that he has been employed by the petitioner for the last 11 years, receiving a salary of Rs 2000/-. As further supporting documentation, the petitioner offered a statement he had made while under investigation on 3.10.1996.
The J.M.F.C. determined that the petitioner was entitled to possess Mo. 7 to 14 based on the preponderance of the evidence after reviewing the evidence provided in the inquiry. The J.M.F.C. further noted that Rajesh Naik, a witness for the petitioner, backed up his story. The J.M.F.C. neglected to take into account the petitioner’s earlier declaration that Rajesh Naik was the only employee he had on record.
The petitioner provided a police statement as supporting documentation for the investigation, which also showed this fact. Rajesh Naik was a fake witness who had been brought up to help the petitioner’s cause. It is established by law that after an investigation or trial, the statement of an accused person or a witness can be utilized to determine who gets to keep the property.
Only the accused is entitled to the protection provided by section 162 of the Criminal Procedure Code (CrPC)[4], and it is only valid during the investigation or trial of the specific offence under consideration. A statement made during a police inquiry can be used as evidence if it is pertinent under the Evidence Act[5], and this protection does not apply in civil procedures or proceedings under Article 32 or 226 of the Constitution. [6]

ADDITIONAL SESSIONS JUDGE

According to the Additional Sessions Judge, the investigation’s evidence showed that Mo. 7 to Mo. 14 belonged to the first informant since they were made from the melted gold of the remaining gold ornaments that had been taken from her home. Her testimony was supported by PW2’s (P.I. Shri Naik’s) claim that the accused admitted during questioning that he had sold certain gold jewellery to a jeweller in Bicholim, and the melted gold was found with the goldsmith Prakash Vernekar.
The petitioner (RW1) stated during his cross-examination that he did not complain to Police Inspector Shri Naik’s superior officers who allegedly mistreated him, according to the Additional Sessions Judge.
This led the Additional Sessions Judge to conclude that the petitioner’s claim that he gave the police the gold bars under duress did not seem to be true. As a result, it was decided that the first informant had the right to receive the gold pieces back in exchange for posting an indemnity bond. [7]
According to Senior Counsel Shri Lotlikar, no proof was given during the investigation that connects the confiscated gold pieces to the first informant’s stolen gold jewellery. Furthermore, neither a description nor an estimate of the weight of the stolen gold ornaments was provided by the first informant. Shri Lotlikar contends that because the petitioner was found to be in possession of the confiscated gold pieces, they should be released to him.
On the other side, the first informant’s attorney, Counsel Shri Sardessai, argues that if the petitioner’s story were accurate, he would have protested to his superiors about the Investigating Officer’s activities. Furthermore, it appears that the petitioner only became aware of the value of the gold pieces much later because he only applied to claim them in 1998.

According to Shri Sardessai, there isn’t any conclusive proof that the gold pieces recovered from the petitioner were either taken from the first informant or created using the petitioner’s four bangles, as the petitioner claims, or both. He adds that the petitioner had the opportunity to establish the validity of the aforementioned bangles through the use of numerous papers he had supplied, but he failed to do so. Sardessai contends that the petitioner has not offered enough proof to establish that the melted gold pieces were from the aforementioned bangles that belonged to him

The handling of property in criminal cases is covered under Chapter 34 of the 1973 Code of Criminal Procedure[8]. According to Section 457, the Magistrate may determine whether to return the property to its lawful owner or hold it in custody if the police seize it and fail to produce it in court during an investigation or prosecution. The disposition of property during an investigation or trial is covered by Section 451. The court may order the property to be sold or managed differently after hearing testimony if it is in danger of decay or must be disposed of.

The disposition of property following a trial is covered by Section 452 of the Code of Criminal Procedure.

According to Section 410 of the Indian Penal Code, stolen property is anything that has been transferred into someone else’s possession as a result of theft, extortion, robbery, criminal misappropriation, or criminal breach of trust.

The petitioner turned the stolen jewels into pieces of gold (Mo. 7 to 14), which belonged to the first informant and were acquired from the defendant Felix Fernandes, the prosecution claims. The petitioner did not assert that they had purchased the decorations in good faith. Instead, he asserted that the police inspector Shri Naik coerced and threatened him to take the items away from him.

JUDGEMENT OF THE CASE

According to this Court, section 452 must also be taken into account while issuing an order under sections 451 and 457. Julio @ Francis K. Bugde v. State and Anr. 2007 AIR Bom R 238 upheld this point of view as well. The Apex Court ruled in the case of N. Madhavan v. State of Kerala that if the accused is found not guilty or discharged, the property should be returned to the person from whose possession it was taken, and if the accused is found guilty, the person from whose possession the property was stolen is entitled to possession if the seized property is connected to the stolen property.
The first informant provided sufficient proof to establish the connection between the seized items (Mo 7 to Mo 14) and the stolen gold jewellery. She admitted throughout the investigation that the melted gold bars (pieces) were from the last of her stolen gold jewellery.
She had been informed by the police that the accused had sold the gold jewels to Prakash Vernekar, a jeweller who had bought them from the accused. The only way the initial informant could have learned what had transpired following the theft was through the police inquiry. She eventually acknowledged, however, that she was not there when the seized items were recovered.
It should be noted that Lotlikar did offer some support for the prosecution’s case, despite the fact that the magistrate who condemned the defendant stated that PW2 (Shri Lotlikar) did not entirely accept the panchanama. In his testimony, the accused claimed to have told a jeweller in Bicholim that he had sold the stolen gold ornaments, and he had even volunteered to tour the jeweller’s store.
The accused then directed the police to the store, whose owner he had identified, and the money was recovered. The investigating officer agreed with the panchanama, and the petitioner had no complaints about the police.
It is assumed that the investigating officer found Mo.7 to 14 while carrying out his or her official responsibilities. The petitioner during his examination as PW5 verified the attendance of Lotlikar/PW2, as well as other witnesses, including Shri Kalangutkar. The police party had arrived with a panch witness named Felix Fernandes, who told them that he had bought the gold jewellery from the petitioner in July 1995, according to the petitioner’s declaration from 3.10.1996, he said.
The petitioner said that although he had told the police he had supplied 235 gms of melted gold to Felix Fernandes, he couldn’t recall if he had sold Felix Fernandez the jewellery.

CONCLUSION OF THE CASE

The fact that the petitioner, a bank manager rather than an ordinary goldsmith, did not protest about the alleged misbehavior of the investigating officer suggests that his claim is untrue. The Additional Sessions Judge made the appropriate decision in determining that the first informant was entitled to custody of the melted gold ornaments that were sold by the accused and bought by the petitioner after carefully weighing all the available evidence. The revision is therefore dismissed with costs of Rs. 2000 to be paid to the first informant since it lacks merit.

[1] (THE INDIAN PENAL CODE n.d.)

[2] (Britto n.d.)

[3] (Mr. Prakash Vernekar S/O Shri vs State Of Goa n.d.)

[4] (Section 162 in The Code Of Criminal Procedure, 1973 n.d.)

[5] (The Indian Evidence Act, 1872 n.d.)

[6] (Articles 32 & 226 n.d.)

[7] (PRAKASH VERNEKAR VERSUS STATE OF GOA n.d.)

[8] (The Code of Criminal Procedure, 1973 n.d.)

written by Unnati Trivedi, Pravin Gandhi College Of Law, 4TH YEAR BLS LLB