Interim Order 2

Order Details: Order
Pdf Text: –1– C.C. NO. 478/PW/2018
IN THE COURT OF THE ADDL. CHIEF METROPOLITAN
MAGISTRATE 37TH COURT, ESPLANADE MUMBAI
C.C. NO. 478/PW/2018
ORDER BELOW EXH.56
1. By way of present application accused Deepak Pralhad
Nikam claimed the relief of discharge.
2. It is the contention of the accused/applicant that on
complete examination of the evidence which the prosecution proposes
to adduce to prove the guilt of the accused even if fully accepted before
it is challenged in crossexamination or rebutted by the defence
evidence, it would be evident to note that it cannot be said that the
accused/applicant committed the offence. Moreover, there is no
sufficient ground for proceeding with the trial and charge against the
present accused/applicant is groundless. The accused No.23 is the main
accused who allegedly transferred the amount in the account of other
accused. However, the present accused is not at all connected with the
Times Group, in fact he was attached with Marathi newspaper. Initially,
certain amounts were credited in the account of the father and brother
inlaw of the accused/applicant and also amounts transferred to the
account of the accused No.23. Thereafter, as per the request of the
accused No.23, the said amounts were withdrawn and handed over to
the accused No.23. However, subsequently the applicant realized that
something is wrong and asked about the same to the accused No.23.
Then after the accused No.23 stopped all the transactions with the
father and brotherinlaw of the applicant. The applicant in compliance
of bail order deposited the entire amount as alleged.
3. The application has been objected by the prosecution. As
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–2– C.C. NO. 478/PW/2018
per Learned APP there is sufficient material on record to frame the
charge against accused. As per prosecution, there is conspiracy between
present accused/applicant and the accused No.23. Ld. APP prayed for
rejection of application.
4. Heard both the sides. Perused the case record as well as
entire chargesheet along with the police report and the documents. The
allegation against the present accused is that the amount has been
deposited in the account of his father and brotherinlaw from the
account of the complainant. It appears that there is a huge conspiracy
between the accused No.1, 23 and the other accused. At this juncture,
the documents collected by the Investigating Officer at page No. 3164
to 3197 of chargesheet and page No. 978 and 979 of chargesheet
show that the amount of misappropriation and cheating is deposited in
the account of father and brotherinlaw of the applicant. The
statement collected by the Investigating Officer shows that the
accused/applicant is the person who was operating the said bank
account. At present, there is prima facie material to establish the
wrongful gain to the applicant/ accused. It is for the accused/applicant
to rebut the said material evidence by way of crossexamination or by
way of defence witness that he is not the beneficiary of the said amount.
Whatever material collected by the Investigating Officer is sufficient to
establish the charge. Unless and until the opportunity is given to the
prosecution to lead the evidence it cannot be said that the charge is
groundless.
5. The word 'charge' mentioned U/sec. 239 of Code of
Criminal Procedure is only in the sense of allegation or accusation.
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–3– C.C. NO. 478/PW/2018
Elaborate examination of statement recorded during police
investigation is not warranted. The standard of proof, which is required
at the stage of decision making for conviction is not requisite for
decision as to framing of charge. So considering the above said facts
and circumstances, at this juncture, I do not consider that the charges
against accused/applicant Deepak Pralhad Nikam are groundless. Hence
the discharge application of accused/applicant Deepak Pralhad Nikam is
rejected.
Date : 03/12/2019 Addl. Chief Metropolitan Magistrate
37th Court, Esplanade, Mumbai
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