2016 ALL MR (Cri) 308
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
S. B. SHUKRE, J.
Hemantkumar @ Hemkumar s/o. Sunil Thakur & Anr. Vs. State of Maharashtra
Criminal Application (Apl) No.41 of 2015
5th February, 2015.
Petitioner Counsel: Mr. R.P. JOSHI
Respondent Counsel: Mr. S.M. BHAGDE
Criminal P.C. (1973), Ss.239, 482 - Penal Code (1860), Ss.420, 406, 419, 34 - Discharge - Prayer for - Offence of cheating - Complainant alleged that accused in association with one deceased, visited agricultural field of sister of complainant and given certain representations and promises by creating a rosy picture about earning of handsome profits from cultivation of some plant - But, names of persons who constituted team are not mentioned in FIR - Nothing stated about role played by these accused nor has it clarified as to what participation was made by them and what were particular acts performed by them till filing of FIR - No investigation made in this regard - Mere transfer of amounts to accounts of accused would not prima facie make out any offences against them - Thus, general allegations made in F.I.R. not enough to proceed further against applicants - Discharged. (Para 18)
5. By this criminal application filed under Section 482 of Cr.P.C., inherent jurisdiction of this Court is being invoked so as to seek discharge of the applicants from the criminal case being Criminal Case No.1292/2011, pending against them in the Court of Judicial Magistrate, First Class, 9th Court, Nagpur.
7. The allegations against the applicants are that some time in March, 2010, there was an exhibition organized at C.P. Club ground for promoting various agricultural products. In that exhibition, stall of one firm, Aqua Agro Developers, whose proprietor was one Sunil Mohan Thakur, now dead, who was the father of the present applicant, was also erected. The complainant, Gulam Abbas Hussain Zaki had met deceased Sunil Mohan Thakur at the said stall at the time of exhibition, and on being informed by Sunil Mohan Thakur that his firm had floated a scheme about cultivation of medicinal plants like Tulsi, Guggle, Khas etc. which can earn handsome profits, the complainant decided to cultivate the medicinal plants in the agricultural field belonging to his sister Nibha Mohanti. His sister was also agreeable to the proposal and, therefore, said Sunil Mohan Thakur along with his team visited the agricultural field of sister of the complainant at Kamptee. Said Sunil Mohan Thakur and persons who were accompanying him informed the details of the scheme to the complainant and his sister. Apparently the complainant and his sister were convinced of the promise of profit held out by cultivation of medicinal plants in the field and therefore some time later, sister of the complainant issued two cheques one for Rs.1,31,200/- and other for Rs. 1,08,200/- in the name Aqua Agro Developers for the implementation of the scheme in her agricultural field. Some time later, the complainant also paid an amount of Rs.20,000/- by cheque to said Sunil Mohan Thakur in order to implement the scheme in his own agricultural field. But, later on, on 27.6.2010, it was learnt that Sunil Mohan Thakur had died by heart attack and, therefore, the complainant decided to file a criminal complaint against deceased Sunil Mohan Thakur and other persons including the applicants.
8. Accordingly, on 17.7.2010, a complaint came to be filed making allegations against the present applicants that they had in association with Sunil Mohan Thakur had cheated, the complainant and his sister of the amount of Rs.1,69,400/-.Offences punishable under Section 406, 419, 420 read with Section 34 of the Indian Penal Code were registered against the applicants and his father.
9. After completion of the investigation Police filed a charge sheet against the applicants, which was registered as criminal case No.1292/2011. The applicants filed an application under Section 239 of Cr.P.C. for their discharge from the case. However, learned Magistrate, by order passed on 3rd December, 2013, rejected the application. Criminal Revision preferred against the order being Criminal Revision No.139/2014 was also dismissed by the learned Additional Sessions Judge by his order passed on 19.12.2014.
11. I have heard Mr. R.P. Joshi, learned counsel for the applicants and Mr. S.M. Bhagde, learned Additional Public Prosecutor for the respondent/State. I have carefully gone through the impugned order and also the charge sheet which is forming part of the paper book of this criminal application with the assistance of learned counsel for the applicant and learned A.P.P. for the respondent/State.
12. According to the learned counsel for the applicants, there is no evidence and no material available on record, which when accepted as it is, would disclose commission of any crime by the present applicants. On the other hand, in the opinion of the learned A.P.P. upon overall consideration of the evidence collected during the course of investigation by the prosecution, the only conclusion that is possible in this case is that there are sufficient grounds to proceed further against the accused. Therefore, learned A.P.P. submits that the prosecution should be given an opportunity to prove its case on merits of the matter.
13. It is well settled law that while considering the application for discharge of the accused from a case, the Court is not supposed to examine and appreciate the evidence in a meticulous manner and what the Court has to consider is whether or not the allegations taken at their face value and accepted as they are, without adding anything thereto or subtracting anything therefrom, constitute the offence alleged against the accused. By adopting this yard stick, let us now proceed to consider the F.I.R. and the evidence collected by the prosecution during the course of the investigation.
14. The F.I.R. dated 17.7.2010 shows that the alleged offence of cheating began at a point of time when deceased Sunil Mohan Thakur and some other persons had visited the agricultural field of his sister situated at Kamptee, and at that point of time, the F.I.R. alleges, Sunil Mohan Thakur and his team had explained the details of the scheme of cultivation of medicinal plants to the complainant and his sister thereby creating a rosy picture about earning of handsome profits from cultivation of these plants and thereafter, the complainant and his sister falling prey to the impression so created by Sunil Mohan Thakur and his team paid total amount of Rs.1,49,400/to the firm of Sunil Mohan Thakur.
15. If such is the nature of allegations, it was absolutely necessary for the investigating officer to inquire from the complainant as well as his sister Nibha Mohanti, as to who were the persons who were forming part of team that accompanied Sunil Mohan Thakur during his visit to Kamptee based agricultural field of Nibha Mohanti and the statements of witnesses recorded by the prosecution, I must say disappoint us in this regard. None of the witnesses including Nibha Mohanti is stating that these applicants had visited Kamptee based agricultural field of Nibha Mohanti along with their father Sunil Mohan Thakur being part of his team. If the basis of the allegations is that some false representation was made to the complainant and his sister in order to induce them to part with some money, it was necessary for the prosecution to collect evidence to the effect that even the applicants were part of the team and were the persons, who had been involved in making of false representation to the complainant and his sister. But, the statements of the witnesses, even when accepted as they are, would not show to us that these applicants had visited the agricultural field and had made any promise, much less a false promise to the complainant and his sister.
16. There are some witnesses who are stating that false promises were given to them and believing those promises to be true, those witnesses had parted with certain sums of money in favour of Sunil Mohan Thakur. But, even these witnesses are not taking names of the present applicants. These witnesses have not stated anywhere that these applicants had been present at the time of giving of alleged false representations by Sunil Mohan Thakur or subsequently later on, had made some promises to those witnesses.
17. Statement of Nibha Mohanti, as already stated, does not disclose anything concrete or specific against the present applicants. Only last portion of her statement recorded on 23.4.2011 makes some passing reference to these applicants when she states that even these applicants had instigated her to make investment in the scheme floated by their father. The statement that these applicants had instigated her to make investment is nothing but an opinion of a lay man. It is not a statement of fact. Therefore, it was necessary for the investigating officer, who recorded her statement to have asked of her as to what she meant by instigation and what were the particular acts performed by the applicants or what was the role exactly played by the applicants so that she felt that what was done by them to her was what amounted to investigation. Noting of that sort had been either asked by the investigating officer nor has been clarified or elaborated by the said witness Nibha Mohanti. Therefore, giving of an opinion that the applicant had instigated her in the matter would not constitute any offence as against the present applicants.
18. The F.I.R. dated 17.7.2010 states that Sunil Mohan Thakur together with his team had visited Kamptee based agricultural field of sister of the complainant and had given certain representations and promises regarding the profits that one can earn by investing in the scheme which pertained to cultivation of medicinal plants. In the F.I.R., names of the persons who constituted team of Sunil Mohan Thakur are not mentioned. Therefore, it fell upon the investigating officer to make an inquiry in this regard as to who were the persons, who had formed the team of Sunil Mohan Thakur which had visited the agricultural field of sister of the complainant. But, no such efforts have been made by the investigating officer. Then, in the F.I.R., it is mentioned generally that these applicants had cheated the complainant and his sister. Again, nothing has been stated about the role played by these applicants nor has it been clarified as to what participation was made by them and what were the particular acts performed by them during the period from 16.4.2010 till filing of the F.I.R. 17.7.2010. No investigation in this regard has been made either. Therefore, the general allegations made against the applicant in the F.I.R. would not be enough to attribute them with any criminality in the matter.
19. Thus, I find that there is absolutely no evidence collected in this case so as to indicate in any manner that the applicants were involved in commission of the offences alleged against them. The F.I.R. as well as the material filed along with charge sheet, taken at its face value and accepting as they are, without adding anything thereto or subtracting anything therefrom, do not make out any offences against the present applicants and, therefore, I find that there are no sufficient grounds available in this case to proceed further against the applicants in this case.
20. Both the Courts below have not at all considered the evidence available on record in this case and it appears that the Courts have made the conclusion of existence of prima facie case against the present applicants only on the basis that some amount had been found to be transferred by Sunil Mohan Thakur to the accounts of the present applicants.
21. Transfer of the amounts can be seen from the statement of the concerned banker of Sunil Mohan Thakur and Aqua Agro Developers. However, mere transfer of the amount from the account of the Sunil Mohan Thakur and the culprit firm to the account of the present applicants by itself would not be sufficient to prima facie constitute offences alleged against the applicants. There has to be some material showing that the amounts so transferred were part of the illgotten money of Sunil Mohan Thakur or Aqua Agro Developers and the applicants had the knowledge of the same. No such material is available on record and, therefore, mere transfer of the amounts to the accounts of the applicants would not prima facie make out any offences against them. Both the Courts below, however, have not considered all these aspects of the matter in their proper perspective. Therefore, the impugned judgment deserve to be quashed and set aside and the applicants deserve to be discharge from the case.
23. The impugned orders dated 3.12.2013, passed in Regular Criminal Case No.1292/2011, by the 14th Joint Civil Judge, Junior Division & Judicial Magistrate, First Class, Court No.9, Nagpur and 19.12.2014 passed in Criminal Revision No.139/2014, by the District Judge3 & Additional Sessions Judge, Nagpur are quashed and set aside.