Final Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 149 SW 2022 Okil Vs Albereto
CNR-MHMM18-011432-2022
ORDER BELOW EXH.1
1. Perused record. Heard Ld. Advocate for the complainant Shri.
Sagar Shah.
2. This is an application under Section 156(3) of Code of Criminal
Procedure, seeking direction against police authorities to register the
offence and investigate the matter. Application is supported by affidavit.
The compliance of Section 154(2) is also done.
3. The offences are of cognizable and non-bailable nature.
4. The allegations/fact and circumstances pleaded in the petition, in
brief, are as under -
The applicant Mr. Okil Ramkaran Mishra, is dealing in antiques
particularly in purchasing and selling imported cars. In the year 2017, he
came across proposed Accused No.1, Mr. Albereto Benstanso, in respect
of purchase of imported car Cadillac Escalade 4WD RHD. On his say
complainant transferred an amount of Rs.60 lacs to the accounts, as per
his information. Further on his say, complainant transferred an amount of
Rs.25 lacs for converting it from left hand to right hand driving. As
substantial money paid and additional money required for payment of
customs duty on the request of complainant Accused No.1, arranged
funds of Rs.70,50,000/- from Accused No.3, Mr. Roger, the brother of
Accused No.1. Towards the security of the said amount both these
accused persons demanded some property. Therefore, complainant
handed over custody of this car to Accused No.4, Mr. Anik Bajaj. Then
certain other amounts were transferred from time to time and the payment
reached to the value of Rs.2.35 crores.
Then Cadillac Escalade car arrived from Canada to Mumbai.
Accused persons lured complainant saying that they will sell it for fair
price and complainant will receive good returns. Accordingly, they sold it
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C. C. No. 149 SW 2022 Okil Vs Albereto
CNR-MHMM18-011432-2022
out to third person. But they had not paid anything to the complainant and
utilized money received from the sell on their own. Later on complainant
demanded back the another Chrysler car from the accused persons kept
with them towards security for the customs duty. However, complainant
came to know that without taking his permission said car was also sold
out by forging documents of ownership and signature of complainant. It
is also alleged that about the first car also accused persons forged
documents and carried out the transaction. Complainant repeatedly
approached to all the accused persons for payment of money paid by him,
but they had not paid anything.
Then complainant approached police, as narrated in the complaint
moved from pillar to post, but no action taken. Despite approaching
senior police officers no purpose served.
Finally, he approached High Court and filed writ. It is informed
that said petition, bearing Criminal Writ Petition No.2407 of 2021, was
withdrawn by complainant. It is noticed that liberty was granted to him by
the High Court, vide order dated 17.10.2022, to approach proper court by
filing private complaint. Therefore, this complaint.
5. The submissions of Ld. Advocate for the complainant are in tune
with the above mentioned allegations. The record reflects that the
allegations are supported by documentary evidence. There is ample
evidence on record produced by complainant in support of payments
made and transactions done in pursuance of purchase and sell of cars. The
report of handwriting expert and other documents reflects that accused
committed forgery to defraud the complainant. Further, the whole
conduct of the accused persons, if taken into account, in context of all the
transactions and documentary evidence it is clear that everything was
done by accused persons to defraud the complainant. This fact mandates
thorough investigation.
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C. C. No. 149 SW 2022 Okil Vs Albereto
CNR-MHMM18-011432-2022
6. Such investigation is not possible without assistance of police as
the documentary evidence to be collected is having vide amplitude of
investigation. The Ld. Advocate for the complainant relied on judgments
of Supreme Court, passed in the case of State of Hariyana Vs Bhajanlal
((1992) Suppl. 1SCC 335) and Lalita Kumari Vs State of U.P. ((2011) 1 SCC 331).
From the contents of the complaint and the documents relied by the
complainant/applicant it can be inferred that the intention to defraud the
complainant was preexisting before the transaction and the amount was
obtained by accused persons without any real intention to honour the
promise on their part. Therefore, it can be said that prima facie accused
cheated the complainant.
7. The accused fraudulently obtained huge amount. Despite passing
substantial period till date no amount was paid by them. As observed
above thorough investigation is necessary. However, it is noticed that
main accused persons involved are only Accused Nos.1 to 4. Accused
No.5, Mr. Karim Ansari, is just purchaser of the car and he also might
have been defrauded by other accused persons by forging documents. The
material against him is deficient. Therefore, First Information Report
needs to be registered and investigation only against Accused Nos.1 to 4,
who seemed to be directly involved in the transactions and amounts
obtained from the complainant.
8. Certain transactions occurred within the jurisdiction of this court at
Bandra, Mumbai. In view of above discussed facts and circumstances,
nature of offence/allegations and this fact, following order -
ORDER
A. Application is allowed.
B. The P.S.O. Bandra, Mumbai, is herewith directed to register the
offence under Sections 406, 420, 465, 467, 468, 471, 506(2) r/w. 120-B
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C. C. No. 149 SW 2022 Okil Vs Albereto
CNR-MHMM18-011432-2022
of Indian Penal Code against Accused Nos.1 to 4, Mr. Albereto Bestanso,
Mr. Suhas S. Raorane, Mr. Roger Dolomil and Mr. Anik Bajaj and
investigate the matter as per Section 156(3) of Code of Criminal
Procedure.
C. The certified copy of the application Exh.1 along with documents
produced shall be sent to concerned police station.
D. It is clarified that Investigating Officer is at liberty to act as per law
in respect of remaining accused persons against whom order about
registration of First Information Report not passed.
E. Application is disposed off.
Sd/-
MUMBAI (KOMALSING RAJPUT)
DATE – 30.03.2024 M.M., 12TH COURT, BANDRA, MUMBAI
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