CRIMINAL REVISION APPLICATION NO.82 OF 2018

30th October 2018

Petitioner Counsel: Shri Anand Jaiswal Shri Poyush M.Shukla
Respondent Counsel: Shri N.B.Jawade

Cases Cited :

JUDGEMENT

1. Admit.

2. Heard finally with the consent of parties.

3. The present revision application is against the order of Special Judge (Additional Sessions Judge3) Nagpur, dated 12.04.2018 by which he has rejected the application for discharge filed by the applicant.

4. The applicant filed application for discharge. It is the contention of the applicant that, he has nowhere connected for the alleged offences registered against him. There is no prima facie case against the applicant to frame charge. The learned Special Judge (ASJ3), not considered his submissions and wrongly rejected his application. Hence, the present revision application.

5. Heard Shri Anand Jaiswal, learned senior counsel for the applicant. He has pointed out charge sheet and submitted that the applicant has not played any role to siphon the amount of Wasankar Wealth Management Prt. Limited (hereinafter referred to as 'WWML Company', for short). The learned Senior Counsel also submitted that the statements of Naresh Shrimal Chandan, Dimple Kanungo and Dheeraj Shah do not show that the applicant diverted any amount to them from the account of the main accused – Wasankar (WWMLCompany). He has stated that the applicant being Chartered Accountant of one Kanungo and also WWMPL Company and therefore, he suggested about the investment of amount. No specific role is attributed to the applicant. At last, learned senior counsel has submitted that there is no sufficient prima facie evidence against the applicant to frame charge against him. He has pointed out Sections 45 and 58B of the Reserve Bank of India Act, 1934 and Section 24 (1) and Section 27 of the Securities and Exchange Board of India Act, 1992 (for short, SEBI Act) and submitted that these are not attracted against the applicant. Learned senior counsel further submitted that the conspiracy between this applicant and the main accused are not established. The other sections like abetment, etc, are also not attracted against him and therefore, he is entitled for discharge.

6. Heard Shri Jawade, learned APP for non applicant/State has pointed out the chart filed along with the reply. As per the chart, this applicant siphoned the amount of main accused to various persons/companies. In all total, he has siphoned an amount of Rs.23,08,00,000/(Rs.Twenty Three Crores and Eight lacs). Learned APP has also pointed out the statements of Naresh Chandan, Dimple Kanungo and Dheeraj Shah. According to him, all these statements show the involvement of the applicant to siphon the huge amount from the account of WWML Company. The learned APP has submitted that day by day, Investigating Authorities are receiving complaints in respect of deposits to WWMPL Company and now, the amount is swollen more than Rs.250 Crores. The main accused WWML Company with the help of present applicant committed fraud to the several depositors. At last, he has submitted that, at the time of framing charge, the Court has to see the prima facie materials on record. The learned ASJ3 (Special Judge) while rejecting the application for discharge, found that there is sufficient material against the present applicant and therefore, the application came to be dismissed.

7. Perused the order dated 12.04.2018 of the learned ASJ3, Nagpur (Special Judge). The findings recorded by the learned ASJ in para 6 of its order are as under :
“On perusal of allegations against the applicant, prima facie it appears that the applicant have helped the directors of WWML Company and accused in the present matter to transfer the amount to the tune of Rs.23,08,00,000/which were of the investors. After going through the case papers it appears that the present applicant is the conspirator to the present offence. It primafacie appears that the present applicant have got transferred the amount of the investors from the account of directors in the name of his father and wife. Considering the statements primafacie material is there to frame the charge against the present applicant. Considering the above all reason, the applicant has not made out any case for discharge therefore, the application needs no consideration. Hence I pass the following order. ORDER The application stands dismissed”

8. The main accused Prashant Wasankar, Bhagyashree Wasankar and others started accepting amounts from the depositors without prior permission of SEBI. After maturity, they did not return respective amounts of the depositors. Therefore, the depositors come forward and lodged reports. As per submissions of learned APP, such amount is more than Rs.250 Crores. While framing the charge, the Court has to see the prima facie materials on the basis of chargesheet.

9. The statement of Naresh Chandan shows that he was not knowing WWML Company. He had purchased shares about 2,65,000 @ Rs.445/per share from Kanungo. Some amount remained to be paid to the Kanungo. He was knowing the applicant. The applicant himself suggested him that Wasankar Company wanted to invest some amount in the property/in the share. The applicant and Kamlesh Kanungo stated him that he did not pay the balance amount, if he sells some shares to Wasankar(WWML Company) then he could give the said amount to Kanungo and he also would receive profit of Rs.5/per share. Therefore, on the say of this applicant, he entered into Memorandum Of Understanding with (1) Vinay Wasankar, (2) Bhagyashree Wasankar and (3) Mithila Wasankar. He sold shares to them and received the amount of Rs.11,89,75,000/. Statement of Smt. Dimple Kamlesh Kanungo shows that the applicant Parag Hangekar is working as Chartered Accountant with them, so also with WWML Company. The applicant himself suggested them that Wasankar(WWML Company) wanted to invest money in property and therefore, flat nos. 1702, 2503, 2703, 2803, 3203 in all total five flats situated at Arbit Terrace, Senapati Bapat Marg, Tulsi Piperoad, Lower Parel, Mumbai, were sold to Wasankar (WWML Company) for consideration of Rs.18 Crores and received earnest money of Rs.1,15,00,000/. Wasankar(WWML Company) did not pay balance amount. Therefore, there was Arbitration Proceedings and in the arbitration proceedings, the matter was settled.
The statement of Shri Dhreeraj Shah shows that the applicant along with one Rubeer Joshi, approached him in the month of July 2013 and told him that he is an Accountant in Wasankar(WWML Company) and Wasankar(WWML Company) wanted to invest Rs.50 crores of the said Company. Wasankar (WWML Company) consented to purchase 50 crores shares @ Rs.235/per share. It was decided that Wasankar (WWML Company) agreed to purchase shares of Rs.47 lakhs. MOU was reduced into writing. The applicant signed on that MOU as a witness.

10. From the perusal of the statements of the Chetna Naresh Chandan, Dimple Kamlesh Kanungo and Dheeraj B. Shah clearly show that the applicant himself played a leading role to invest the amounts of Wasankar (WWML Company). Therefore, at this stage, it cannot be said that there is no sufficient material to frame the charge. Learned ASJ3 (Special Judge) rightly rejected the application for discharge. Therefore, there is no merit in this application. Trial is already expedited by this Court while rejecting the Bail Application No.722/2018.

11. Learned APP has submitted that a special prosecutor is appointed. The prosecution has to examine more than 100 witnesses. As such, trial would be completed till September 2019.

12. In that view of the matter, the present revision application is rejected. No costs. Needless to mention that observations made by this Court in this order shall not affect the merits of the case before the trial Court.