Final Order 1

Order Details: Copy of Order
Pdf Text: IN THE COURT OF THE METROPOLITAN MAGISTRATE,
26TH COURT, BORIVALI, MUMBAI.
Notice No. 2601102/N/2022
C.R. No. 1346/2022
Borivali Police Station, Mumbai.
ORDER ON APPLICATION FOR RETURN OF PROPERTY
The present application is filed by the applicant Mr. Harsh
Sanjay Shah for return of property i.e. cash amount of Rs. 1,41,000/.
2. The applicant in the said application stated that on
20.08.2022 while searching on instagram, he came across instagram
story posted by SMARTMART wherein they claimed to give I phone 13
pro Max Plus alongwith offer of buy one get one free for amount of Rs.
40,000/. In order to confirm booking for the same, he transferred Rs.
14,000/ to Indusind Bank, Raigarh Branch bearing Account No.
257777069613 for which he received a receipt from SMARTMART.
Thereafter he transferred remaining balance amount of Rs. 26,000/ to
the said account. Again he received demand of Rs. 36,000/ from
SMARTMART on account of GST. Thereafter, they told to him to pay
security amount of Rs. 65,000/, where they claimed to return the
security amount once the product is delivered. Therefore, he made
payment in two installments i.e. of Rs. 40,000/ and Rs. 25,000/
respectively. On 23.08.2022 they claimed that as he made delay in
paying the security deposit, he again has to pay Rs. 38,000/.
Thereafter, he realized that he was cheated by the company
Smartmart.in, therefore, he lodged FIR in Borivali Police Station. He
further stated that the amount of Rs. 1,41,000/ which he has
transferred to Indusind Bank at Raigarh Branch was seized by the
concerned police station. With these submissions, he prayed that
abovesaid cash may be returned to him on execution of necessary bond.
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3. Say of I.O., APP, accused and bank was called.
4. I.O. filed say and stated that out of the cheated amount of
Rs. 1,41,000/, amount of Rs. 94,555.16/ is freezed in the account of
IndusInd Bank and they have no objection if the said amount is returned
to the applicant by imposing certain terms and conditions.
5. Ld. APP in his say stated that there is difference in the
amount claimed by the applicant and amount recovered by the
investigating agency. If said property is returned to the applicant, he
shall not produce it before the court as and when required.
6. Inspite of service of notice, accused not filed say.
7. The IndusInd Bank have filed say stating therein that the
Current Account No. 257777069613 of IndusInd Bank, Raigarh Branch
belongs to one Mr. Sonu Barman. On receipt of Notice u/s. 91 of
Cr.P.C. from PS North Cyber, Mumbai, they have marked a debit freeze
on the said account. They also received letter dated 08.09.2022 from
Senior Police Inspector, Borivali police station for the same. The
balance in the Current Account No. 257777069613 is Rs. 94,806.16/ as
on 01.12.2022. There was Lien marked on the said account for an
amount of Rs. 63,521/ as on 01.12.2022. The bank further submits
that it has no objection to release the funds to the applicant, if the Court
deems fit and the Respondent Bank shall comply with the order and
directions of the Court.
8. Heard. Perused the record.
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9. After going through the record, the applicant seems to be
the owner of the freezed amount lying in the account of IndusInd Bank
which were obtained fraudulently. The I.O. and the bank have given no
objection to return the said freezed cash amount to the applicant. The
applicant in his application has claimed for an amount of Rs.
1,41,000/, but amount of Rs. 94,806/ is only seized by the I.O.
Therefore, applicant is entitle to receive only the seized amount by the
I.O. Hence, considering the facts and circumstances, in my considered
view, no prejudice will be caused to the prosecution if the said freezed
amount is returned to the applicant by imposing certain terms and
conditions. Therefore, I proceed to pass the following order:
O r d e r
i. Application is partly allowed.
ii. The IndusInd Bank is hereby directed to return the cash amount
of Rs. 94,806/ (Rs. Ninety Four Thousand Eight Hundred Six Only) to
the applicant.
iii. I.O. is hereby directed to draw the panchanama mentioning the
currency note numbers and denomination in it while handing over the
cash of Rs. 94,806/ (Rs. Ninety Four Thousand Eight Hundred Six
Only) to the applicant by IndusInd Bank.
iv. I.O. is hereby directed to file the panchanama and the receipt of
applicant along with chargesheet.
v. The applicant shall execute indemnity bond of Rs. 1,00,000/ (Rs.
One Lakh Only) and shall also undertake to produce the same as and
when directed by Court.
Date: 19.01.2023 ( V. J. Kore )
aaw Metropolitan Magistrate,
26th Court, Borivali, Mumbai.
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