Order 4

Order Details: Order Below EX 1
Pdf Text: C. C. No. 1906 PW 2019 State Vs Rajesh and ors.
CNR No.MHMM18-008643-2019
ORDER BELOW DISCHARGE APPLICAITON, EXH.15
1. Perused record. Heard Ld. Advocate for the applicant/accused.
Heard Ld. A.P.P. Perused written notes of arguments, Exh.21.
2. This lengthy application running into several pages, is filed by
Accused No.5, Mr. Hardik Nitin Gothi, hereinafter referred as applicant,
for his discharge from the matter, under Section 239 of Code of Criminal
Procedure. The grounds pleaded in detailed manner, but can be
summarized in brief as follows -
i. No offence, in respect of which the charge sheet is filed is made out against the
applicant.
ii. The complainant/first informant concealed material facts and the allegations per se
are not reliable.
iii. There is delay in lodging of First Information Report.
iv. No case to frame the charges against the applicant made out, in view of settled
position of law.
3. The Ld. A.P.P. objected to it vide his say, Exh.33, on the grounds
that offences are cognizable and non-bailable in nature. Accusations are
well founded. The amount involved is very high. The involvement of the
accused noticed in the allegations. The compromise took place between
first informant/original complainant (victim), but considering the stage
and nature of offence it is not just and proper to allow the application and
trial needs to be conducted.
4. Brief facts of the main matter are as follows -
Mr. Rashid Sirajulhaq Siddiqui, hereinafter referred as informant,
on 13.01.2019, approached Bandra Police Station, Mumbai, and informed
that he owns a house, 202, Bandra Sea Heaven C.H.S., 32, Perry Cross
Road, Bandra West, Mumbai. He is single and was willing to sell said
property. Therefore, one of his acquaintances Mr. Abdullah Khan @
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C. C. No. 1906 PW 2019 State Vs Rajesh and ors.
CNR No.MHMM18-008643-2019
Pappu, (Absconded accused), brought to him a customer Mr. Narendra
Agrawal (Accused No.3), for purchase of the said flat. The transaction of
sell was entered into for consideration of Rs.5,42,00,000/-. However, Mr.
Narendra Agrawal, expressed inability to manage the said amount and
requested informant to execute the transaction in the name of his friend
Mr. Rakeshkumar Prafullakumar Chakravarti (Accused No.2), who will
obtain the bank loan and arrange the amount. It is also agreed that initially
they will pay token amount of Rs.10,00,000/- (as an earnest money) and
remaining will be paid through bank loan.
The amount of Rs.10,00,000/- was transferred to the account of
informant by accused Mr. Rakeshkumar. The Agreement for Sale was also
executed and registered. Documents were submitted to P.N.B. Bank for
security of loan amount.
On 11.07.2017, accused Mr. Rakeshkumar, approached informant
and stated that bank is going to pay only amount of Rs.4,11,00,000/-,
towards loan amount and requested him to cancel the agreement.
Informant agreed on a condition that, as per agreement he will forfeit the
Rs.10,00,000/-, paid as an earnest money and repay it after deposit of loan
amount by the bank in his account maintained with S.B.I. On next day
accused Mr. Rakeshkumar, informed that the documents were going to be
returned by bank only after submitting cancelation deed and depositing of
loan amount. He will do the needful for securing return of documents
from bank. Relying on his assurance the informant issued nine blank
cheques signed by him for depositing of amount.
On 14.07.2017, the loan amount of Rs.4,05,00,000/- was credited
in the account of informant maintained with S.B.I. Then on very same day
i.e. on 14.07.2017, then on next day, on 15.07.2017 and on 18.07.2017,
several amounts were transferred from the said loan amount to several
accounts maintained by various other persons, including accounts of Mr.
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C. C. No. 1906 PW 2019 State Vs Rajesh and ors.
CNR No.MHMM18-008643-2019
Rajesh Harishchandra Dahanukar (Accused No.1), Mr. Prakash Hiraman
Maru (Accused No.4) and applicant Mr. Hardik Nithin Gothi (Accused
No.5).
Then informant inquired about and demanded from accused Mr.
Rakeshkumar, the cancellation deed and other documents deposited with
bank. He assured of payment of bank loan and returning those documents
to informant. But rather than doing this accused Mr. Rakeshkumar, sent a
notice to housing society through his advocate claiming that the flat
owned by informant is purchased by him and asked them to enter his
name as owner in the society record and transfer all the relevant
documents of the flat in his name.
On 21.05.2018, the officers of creditor bank arrived at the flat of
informant and informed that accused Mr. Rakeshkumar, committed
default in payment of the loan amount. They initiated action under the
Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 and taken symbolic possession of the flat.
Thus, informant came to know that accused Mr. Rakeshkumar, had
not canceled the transaction. He used the loan amount for his own benefit
and not refunded it immediately to the creditor bank. Using the cheques
issued by informant accused Mr. Rakeshkumar, transferred the loan
amount to several other accounts. He was defrauded by him. Therefore,
said offence was registered at C. R. No. 31 of 2019, with Bandra P.S.,
Mumbai.
5. The investigation started. Accused Mr. Hiramal Maru, was arrested
and from his custody certain articles were seized. Statements of various
witnesses recorded.
6. The applicant was also arrested on 22.10.2019, and his statement
was recorded. He admitted that the amount was transferred in his account.
Then on 22.11.2019 and on 27.11.2019, two supplementary statements of
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C. C. No. 1906 PW 2019 State Vs Rajesh and ors.
CNR No.MHMM18-008643-2019
informant were recorded. In his statement dated 27.11.2019, the informant
Mr. Rashid, stated that on 14.07.2019, the amount of Rs.40,00,000/- was
transferred in the account of applicant. He do not know the accused. He
was arrested by police and his wife Mrs. Nancy Gothi, contacted him and
agreed to repay the said amount. He also accepted the Demand Draft,
brought by her and matter was compromised. To the same effect, on the
same day i.e. on 27.11.2019, the statement of wife of applicant, Mrs.
Nancy Gothi, was recorded. She stated that compromise was accepted by
the informant Mr. Rashid and on the said day she is going to appear
before court.
7. Investigating Officer also collected all the documents pertaining to
main transaction and bank documents pertaining to transfer of various
amounts. He also recorded the statement of a third person with whom
present applicant and Accused No.1, Rajesh, entered into transaction for
purchase of some property, who narrated the details of said transaction,
which is unconnected with the present transaction.
8. On the basis of material collected, Investigating Officer, came to
conclusion that all the above referred accused persons, including
applicant Mr. Nithin Gothi, are responsible for the cheating and fraud of
the informant and filed final report in this court. Then he filed present
application, on above referred grounds.
9. If we go through whole charge sheet/final report it is clear that the
main allegations are not against the applicant. There attributed no role to
applicant in main transaction or any of its subsidiary transactions, relating
to cheating and fraud allegedly committed on the informant. During
investigation the only fact discovered against the applicant is that, out of
total loan amount obtained by main accused Mr. Rakeshkumar, after
mortgaging the property of the informant to bank, its comparatively small
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C. C. No. 1906 PW 2019 State Vs Rajesh and ors.
CNR No.MHMM18-008643-2019
part is transferred to the bank account of applicant, if total amount
involved in the whole transaction taken into account. It is also transpired
that during the whole episode of various transactions of commission of
cheating and fraud, applicant directly or indirectly, never came in contact
with informant, in any way either before or after the transaction. Further,
informant admitted this fact. Then informant obtained said amount from
the applicant and it is also come on record that matter is amicably settled,
the amount credited in bank account of applicant is already received by
informant.
10. If we considered whole evidence on record, it shows that there is
absolutely no evidence on record which will connect the applicant with
the allegations of cheating and fraud, narrated in the First Information
Report. The only fact of transfer of amount in the bank account of the
applicant, even if presumed to be true, there is no material on record to
connect the applicant with the alleged act of cheating and fraud. Rather, in
the statement of informant dated 27.11.2019, he admitted that he do not
know the applicant. He also admitted that the matter is settled and then he
accepted the demand draft of the amount credited in the account of
applicant. If whole material on record accepted as it is, by no stretch of
imagination it can be said that applicant was involved in the transaction
constituting any offence and liable to be prosecuted.
11. Now the law pertaining to discharge of accused is well settled
through various judgments. One of such recent judgment of Supreme
Court, in this regard is judgment of Vikarmjit Kakati Vs State of Asam (2022
SCC OnLine 967), wherein after considering all the relevant provisions and
previous important judgments, it is observed, that -
10. Before we proceed to examine the matter on merits any further, it will be
apposite to take note of the legal principles applicable seeking discharge, for
which we may refer to a judgment of this Court in P. Vijayan v. State of Kerala
& Another, which has been further reiterated by this Court in the recent
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C. C. No. 1906 PW 2019 State Vs Rajesh and ors.
CNR No.MHMM18-008643-2019
judgment in M.E. Shivalingamurthy v. Central Bureau of Investigation,
Bengaluru and discerned the following principles:
“17.1. If two views are possible and one of them gives rise to suspicion only as
distinguished from grave suspicion, the trial Judge would be empowered to
discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the
instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find out whether or
not there is sufficient ground for proceeding. Evidence would consist of the
statements recorded by the police or the documents produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt
of the accused, even if fully accepted before it is challenged in cross-examination
or rebutted by the defence evidence, if any, “cannot show that the accused
committed offence, then, there will be no sufficient ground for proceeding with
the trial”.
17.5. It is open to the accused to explain away the materials giving rise to the
grave suspicion.
17.6. The court has to consider the broad probabilities, the total effect of the
evidence and the documents produced before the court, any basic infirmities
appearing in the case and so on. This, however, would not entitle the court to
make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the material
on record cannot be gone into, and the material brought on record by the
prosecution, has to be accepted as true.
17.8. There must exist some materials for entertaining the strong suspicion
which can form the basis for drawing up a charge and refusing to discharge the
accused.”
12. Considering the status of evidence collected during investigation
and facts and circumstances transpired on its basis, if we applied above
principles, in this matter even two views, one giving rise to suspicion and
another giving rise to grave suspicion, are not possible. After sifting
evidence there noticed no ground to proceed further. The evidence
proposed to adduce against applicant, even if fully accepted by him
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C. C. No. 1906 PW 2019 State Vs Rajesh and ors.
CNR No.MHMM18-008643-2019
without challenging it in cross-examination or rebutting it by way of
defence evidence, no conviction is warranted. Therefore, application
needs to be allowed.
13. Besides this legal position, it is also came on record that matter is
amicably settled between both the parties. The amount is already received
by the first informant. Ld. A.P.P. in his say, Exh.33, also admitted this
fact. This ground, may not be relevant for considering application under
Section 239 of Code of Criminal Procedure, but in view of above legal
position and conclusion arrived on its basis, deserves some consideration
as both the offences are compoundable, with which applicant is charged
with. There appears no point in proceeding further so far as present
applicant is concerned.
14. In view of above discussion, following order -
ORDER
a. Accused No.5, Mr. Hardik Nitin Gothi, is discharged under Section
239 of Code of Criminal Procedure.
b. Cash security, if any, deposited be refunded to the accused, after
appeal period is over.
MUMBAI (KOMALSING RAJPUT)
DATE – 27.07.2023 M.M., 12TH COURT, BANDRA, MUMBAI
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