Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C.C.NO.3018/PW/2018
Received on : 03.11.2018
Registered on : 03.11.2018
Decided on : 29.07.2021
Duration : 02Ys. 08M. 26Ds.
Exh. : 78
CNR No. MHMM1900118942018
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
22nd COURT, ANDHERI, MUMBAI.
(JUDGMENT U/SEC. 355 OF CRIMINAL PROCEDURE CODE)
(a) The serial number of the
case;
: 3018/PW/2018
(b) The date of commission of
the offence;
: During 09.07.2018 to 06.09.2018
(c) The name of the
informant
(if any);
: The State (MIDC Police Station in
C. R. No. 414/2018).
(d) The names of the accused
persons and their
parentage and residence;
: 1)
2)
Jaiganesh Mohan Patthe
Age : 26 years
Occupation : Delivery Boy.
R/at : Sagar Apartment,
Room No.402, 4th floor,
Sector12D, Koparkhairane,
Navi Mumbai.
Ikeb Okoroko
Age : 33 years
Occupation : Delivery Boy.
R/at : Room No.7, Ground
Floor, Crisant Niwas, Plot
No.783, Near Sky Villa
Building, Sector34A,
Kharghar, Navi Mumbai.
e) The offences complained : Under Sections 419, 420 of the
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of or proved ; Indian Penal Code & 66(D) of the
Information Technology Act.
(f) The plea of the accused
and their examination
(if any);
: Accused pleaded not guilty and
claimed to be tried.
(g) The final order; : Accused are acquitted.
(h) The date of such order; : 29.07.2021
APPEARANCE :
Ld. A.P.P. Mrs. Godambe for State.
Ld. Advocate Miss. Shaikh Mehtab Nazia for accused No.1
Ld. Advocate Mr. Tiwari for accused No.2
J U D G M E N T
(Delivered 29.07.2021)
1. The above named accused persons stand charged for
having committed an offence punishable under Sections 419 & 420 of
the Indian Penal Code, 1860 (for the sake of brevity hereinafter referred
as 'I.P.C.') and Section 66(D) of the Information Technology Act.
2. The brief facts of the prosecution's case are, as
follows :
That the accused No.2 Ikeb Okoroko during the period from
09072018 to 06092018 pre tended himself to be representative of
GTB Pharmaceuticals UK. He had with the help of representatives of
Tiwari Fluids Traders Pvt. Ltd namely Anita Tiwari, Priya Das and their
one Nigerian companion namely Yuvi, his Indian wife and other
Nigerian companions cheated the informant namely Jaswinder
Harjitsingh Giland. He delivered herbal oil through accused No.1
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Jaiganesh Mohan Patthe at the house of complainant situated at
4/A/13, Kalptaru Estate, JogeshwariVikroli Link Road, Adheri (East),
Mumbai and he fraudulently or dishonestly induced the informant to
deliver cash amount of Rs. 89,28,875/. That both the accused persons
had cheated the informant by personation by sending emails , using
mobile phone and he used internet for online transferring of the
cheated cash amount, to bank accounts.
3. The informant lodged report in respect of the aforesaid
incident with MIDC police station. On the basis of report C.R.
No.414/2018 was registered under sections 419, 420 r/w 34 of IPC
against the accused. Investigation of the case was carried out by A.P.I
Shri.Shrinivas Kamuni. During investigation he checked the CCTV
footage to corroborate the fact that the accused No. 1 went to deliver
Acqua Fera Herbal oil can of 80 liters. As the accused travelled in OLA
cab, they contacted OLA cab and got details of driver and they also got
the mobile number of passenger. Then they arrested accused persons.
He recorded statements of witnesses, conducted spot panchnama,
seized mobile phones of accused persons under seizure panchnama.
After investigation he found sufficient evidence against the accused,
hence forwarded chargesheet under above said sections.
4. Charges are framed against accused persons on 02.02.2019
by my Ld. Predecessor. They pleaded not guilty and claimed to be tried.
In view of above rival facts following points arose for my determination
and I recorded my findings against them for the reasons given below :
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Sr.
No.
Points Findings
1] Does the prosecution further prove that,
during the above period and at above place
abovenamed accused in furtherance of their
common intention cheated the informant
namely Jaswinder Harjitsingh Gil by
pretending to be representative of GTB
Pharmaceuticals UK and thereby fraudulently
or dishonestly induced to deliver the
property, namely cash amount of Rs.
89,28,875/ to the informant and thereby
committed an offence punishable under
Section 419 r/w 34 of I.P.C ? ...In the negative.
2] Does the prosecution prove that, during the
above period and at above place above
named accused in furtherance of their
common intention cheated informant by
dishonestly inducing her to deliver cash
amount of Rs. 89,28,875/ belonging to her
name to you and thereby committed an
offence punishable under Section 420 r/w 34
of the IPC? ...In the negative.
3] Does the prosecution further prove that,
during the above period and at above place
the abovenamed accused cheated informant
by personation by sending email and
thereby committed an offence punishable
under Section 66(D) of the Information
Technology Act? ...In the negative.
4] What order ? As per final order.
R E A S O N S
5. Prosecution in the instant case has examined 8 witnesses,
whereas the defence did not examine any witness in support of the case.
Prosecution examined the first informant Jaswinder Gill as PW No. 1
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vide Exh7, one panch witness was examined as P W No. 2 vide Exh20,
one driver for Ola cab was examined as PW No. 3 vide Exh24, two
other witnesses were examined as PW No. 4 & PW No. 5 vide Exh25
& 26 respectively, another panch witness was examined as PW No. 6
vide Exh37, Nodel Officer was examined as PW No. 7 vide Exh47 and
Investigation Officer was examined as PW No. 8 vide Exh54. Heard
both sides at length.
AS TO POINT NOS.1 TO 3 :
6. Since the points are interrelated they are discussed
together for facilitation of the appreciation of the evidence on record.
7. At the outset, the accused Nos. 1 & 2 are not cited as the
main accused persons. It is the case of the prosecution through PW 1
Jaswinder Gill that Dr. Jesika Bradley had sent her email for help
securing/sourcing Acqua Fero herbal oil through one GTB
Pharmaceutical company, which is UK based. She deposed that she had
received mail from Dr. Donald mentioning about his company and what
it does and the requirement of 500 liters of Acqua Fero herbal oil and
Dr. Jesika provided other specifications. They together had asked her to
source 3 liters of Acqua Fero herbal oil and to coordinate with the local
vendor of Nasik in India which was Tiwari Fludes and Traders at Nasik.
That they were the persons who gave her the email ID and number i.e.
phone number of Mrs. Anita Tiwari, who was the director of the Tiwari
Fluids and Traders company. Now, it is her own case that she
contacted Mrs. Tiwari through email and gave her specifications of the
products as shared by Dr. Donald and in turn she was asked to remit Rs.
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1,92,000/ for 3 liters herbal oil @ Rs. 65,000 per liter. She had given
her account number to remit that amount and it was Dr. Jesika, who
told her that Purchase Manager of GTB Pharmaceutical company i.e.
Dr. Morres will be coming from UK to contact her.
8. It is the further deposition of complainant, PW No.1 that
Dr. Jesika asked for more 17 liters of oil and she contacted Anita Tiwari
who asked her 100 % advance and transfer 50% to Sharma Enterprises
and balance 50% to Vishnu Kumar. That, Dr. Morres had contacted,
that, he asked sample of Acqua Fero herbal oil, collected one bottle of 1
liter from her and also products specifications, etc. That, he followed
up, then she received email from Dr. Jesika and Dr.Donald saying that
they do not trust her whether she will be able to source huge quantity
of 70 liters more(SIC). That, she received 17 liters Acqua Fero oil
through transport and she placed order for 80 liters to Anita Tiwari.
9. It has come in the testimony of PW1 only, that she had
transferred Rs.25,60,000/ to Chungnethoi Thanga in his HDFC bank
account and as per requirement of Anita Tiwari. She transferred said
amount and then Dr. Philip Matrtin came from UK and he had carried
demand draft of 300 thousand dollars, which he would remit through
her account from RBI, who sought her amount number of Yes bank
when he transferred Rs.5,85,000/. Then one Priya Das alleged that she
represented RBI and told her that now 300 thousand Dollars of D.D. has
been submitted to RBI and they will establish internet account through
which payment will be remitted to her account and asked her how she
would remit money without her account details, bank details. Then she
set up internet account, but she could not log in as it required access
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code. Hence, she asked Priya Das and asked about access code. Then
revenue taxes code generation charge was asked from her. Accordingly,
she remitted the amount. Then RBI sent her email that
IMF(International Monetary Fund) had stopped the payment of 300
thousand dollars as the amount was above limit and for that they
demanded more money for generation of IMF code. That, she was short
of money. Then she asked her C.A., who advised her to forward IMF
letter and then he advised her to stop the future payment. That, till that
time she had remitted Rs.89,28,875/ and then she realised that it was
a fraud. Accordingly, she had given the complaint in writing to police
which was identified by FIR. FIR bears signature at Exh8 and laptops
were delivered by a man namely Gopal, who was identified through
CCTV.
10. In her further deposition the PW 1 stated that police had
told that his name was not Gopal and his name is Jaiganesh Mohan
Patthe, the accused No.1. She identified him as the person who had
delivered the herbal oil at Kalpataru Estate, Andheri(East). The printed
FIR was admitted in evidence by her at Exh9. The debit entry from
ICICI bank and credited in Vishnu Kumar's account was admitted at
Exh10. The statement of accounts with ICICI bank was admitted at
Exh13, of HDFC bank vide Exh14. The statement of accounts of
Sharma Enterprises with HDFC bank at Exh15. The statement of
accounts of Vishnu Kumar with Kotak Mahindra bank at Exh16. Two
entries of Rs. 25,60,000/ by RTGS vide Exh17. The statement of
accounts of Yes Bank in the name of Mukesh Enterprises at Exh18.
11. In her crossexamination PW 1 had categorically admitted
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that she did not know whether or not there is anything on record to
suggest that accused persons were directly or indirectly in touch with
Jesika Bradley. It is admitted fact that Dr. Jesika Bradley is based in UK
and this witness had again admitted that she had transacted at the
behest of Tiwari Fluids Traders Private Limited and this witness
voluntarily stated that Rs. 65,00,000/ was at the behest of Tiwari. It is
again admitted by her that she had transferred on the advice of Anita
Tiwari of Tiwari Fluids Traders. However, she again deposed that
accused persons have cheated. She specifically stated the name of
accused, his mobile in the FIR, but she was not able to assign any
reason why it was not mentioned in the FIR specifically about Gopal.
So, version of PW No.1 regarding accused cheated, is after thought or
an embellishment. Her version is not believable in that respect. She is
not even aware that the amount which is transferred in the various
accounts whether benefited accused or not. She had voluntarily
deposed that she only knew that accused Gopal came to deliver 80 liters
of Acqua Fero herbal oil to her house, which is a part of the fraud. It is
the admitted fact that accused had not induced her to buy the product.
12. It is pertinent to note here that the PW No.1 was aware of
the documents require for import and export of products, that
certificate of products, that certificate of analysis was the basic thing
required for import and export and she had not received such certificate
along with the products and it was Dr. Anita who was to send her the
same, later. There is no connection established by PW No.1 to show
that accused persons were beneficiaries in the entire transaction and
whether they were connected or not. So, her version is not believable
for any direct evidence for showing the complicity of the accused
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persons in such alleged fraud committed against her.
13. PW No.2 Govind Davariya is the person in whose presence
police had recorded memorandum statement of the accused person,
which was at Exh21 and in pursuance of such submission the accused
had led them to the residence at Koparkhairane from where the pen
drive was recovered from which the call recording from his mobile was
retrieved. The said panchnama was at Exh 22. The envelope and
mobile phone were collectively marked as ArticleA. Pen drive was
marked as ArticleB. The screen shots of wallpaper of photograph of
accused Jai Ganesh was marked as ArticleC and the print outs in the
chargesheet were marked as ArticleD.
14. Nothing came out from the crossexamination of this
witness i.e. PW No.2 on behalf of accused and it is to be noted there
that there is no dispute from the submission of the accused persons,
specifically accused No.1 that he delivered oil. He has admitted such
fact in this statement u/s. 313 of the Cr.P.C. even. There is no doubt
about his identification as the person who delivered disputed oil. That,
complainant identified him as Gopal, is of no consequence except
embellishment.
15. PW No.3 is the Ola car driver, who had given the details of
the booking by accused No.1 regarding the delivery of the boxes in his
car by him and nothing material has come out in the crossexamination
of this witness on behalf of accused No.1 or 2. So, his involvement
cited by PW No.3 that after 10 minutes one Nigerian came over at
Kharghar when they halted enroute from Koparkhairane to JVLR in a
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Honda City car, is not disputed. What it means is that accused No.2
had supplied the boxes to accused No.1, who delivered it to
complainant. It is because the witness admits that he did not give any
proof to the police showing that he had entered into Mumbai that day,
does not make his version disbelievable. When the accused No.1 himself
admits that he had delivered the boxes to complainant, then naturally
he had entered through this Ola cab in Mumbai. Therefore, the version
of PW No.3 is inspiring fact to me and it is trustworthy.
16. The version of PW Nos. 4 & 5 is only connected to accused
No.2, that he got one Honda City car from them. They have identified
him as one Nigerian namely Okoroko. Nothing significant has come out
in the version of PW Nos. 4 & 5 except that PW No.4 has falsely
identified accused No.2 and he has no concern with the case. However,
that is not useful to the accused No.2, as PW No.4 is not aware about
the case in question regarding the offence. The police have told them
about the alleged offence and this is not disputed. However, the
version of PW Nos. 4 & 5 only connects the accused No.2 of having
possession of Honda City car and it is used by him for delivering that
products, therefore, involvement of accused No.2 in the offence gets
established. Because of this circumstance cited by PW No.4 & 5, their
version is also reliable and worth considering.
17. PW No.6 is another panch witness who had admitted the
panchnama of seizure of mobile from the possession of accused. The
panchnama was admitted by him vide Exh38 and also seizure of
laptop, mobile and other articles vide Exh39, two sealed packets were
admitted at Exh40 & 41 and again the same articles in it i.e. mobile
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phones were marked as ArticleA & B(SIC ArticleE & F). Another
sealed packet was admitted by him with signature at Exh42 which
consisted of three mobile phones. They were marked as ArticleC,
ArticleD & ArticleE(SIC ArticleG, H & I), two another sealed packets
have been shown having signature which were marked as Exh 43 & 44
and two laptops were shown, which were marked as ArticleF & G(SIC
ArticleJ & K), another sealed packet was marked as Exh45 which
was containing passport, the passport was marked at ArticleH(SIC
ArticleL).
18. In the crossexamination of PW No. 6 no significant
contradiction was recorded. It was reiterated by the witness that
articles found in the car were seized in his presence. Just because
mobiles, laptop which were seized from the car were easily available in
the market, that cannot make the version of PW No.6, as not believable.
He is not a habitual panch, he was aware Mr. Chavan, the police
officer, but he is not a day to day habitual witness. Hence, his version is
believable.
19. PW No.7 Rakeshchandra Prajapati, Nodal Officer has
admitted in his evidence the letter dated 14.12.2018 bearing his
signature at Exh51, the certificate u/s 65(B) at Exh52, customer
application form of five mobile numbers at ArticleB collectively(SIC
ArticleM collectively), 5 CDR reports at Exh53 collectively.
20. Crossexamination on behalf of accused No.1 was declined
by the Counsel for accused No.1. Nothing material has come from the
crossexamination on behalf of accused No.2. The version is not of
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much use to the prosecution as it has been established by the
prosecution that accused Nos.1 & 2 were involved in the delivery of the
products.
21. PW No.8 is the I.O. Shrinivas Yaddgir Kamuni, however, his
version is not supporting the complainant's case as regards the
involvement of the present accused. Rest of his version is supporting
the prosecution case as to how the complainant was cheated, etc.
However, his version that he found out from the mobile conversion, text
messages, what's app messages that there was common intention
between the absconding accused persons and the accused persons sent
to trial, has not been established by him. It is his case that he has
established the said connection between them through panchnama at
Exh65. It is pertinent to note here that Exh55 is the panchnama and
memorandum dated 18.09.2018, which is memorandum of accused
No.2 Ikel Okorko. However, the panchnama and the memorandum in it
cannot be used by the prosecution as the confession. In fact, any
recovery u/s. 27 of the Indian Evidence Act can be used only for the
purpose of the recovery as substantial evidence sans the incriminating
part. Even if the incriminating part is considered, it reveals the name of
one Ucchi, who used to give him sample oil which he used to deliver
through the accused No.1 Jaiganesh.
22. It is the case of the complainant herself that at the
institution of Bradley from UK and the Anita from Tiwari Fluids from
Nasik she had made the payment. It is her constant case that she was
introduced by Anita and the said Bradley for the purchase of such
products. Now, the name of Anita was also given to her by the said
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Jesika Bradley only. Therefore, there is a common intention between
the said Jesika Bradely, Anita Tiwari, Donald Ifarem, Fillip Martin,
Morres, Ucchi Priya Das, etc. Here inducement for making the
complainant to fall for the earning of the commission and the
investment made by her to the tune of Rs. 89 Lakhs and something.
There is nothing on record to connect the said accused Nos. 1 & 2 with
this above named absconding accused persons with the present accused
who are sent to trial. The I.O. himself deposed that Jesica Bradley had
given a local number to contact, for the complainant, which was
8929285501 and this number belongs to one Ucchi. Now, the said
Ucchi has not been arrested and neither other absconding accused
persons. It is his own case that, he had found out in the investigation
that the accused No.1 was delivering the material and accused No.2 was
supplying the material at the instance of said Ucchi. Therefore, the said
Ucchi may be called as the person having common intention with the
Jesika Bradley and company, but no connection has been established of
having common intention of the present accused person with Jesika
Bradley and company, absconding accused. It is also not denied by the
I.O. in crossexamination on behalf No.1 that accused No.1 did not deny
in investigation that he delivered the package. He now admitted that,
he could not show any transaction in writing to show that accused No.1
received any amount and that he voluntarily deposed that accused No.1
received in cash. He again established that though said amount of
money was begotten from cheating it was just remuneration of the
delivery package sent by accused No.2.
23. On appreciation of the entire evidence on record, following
things given to the fore, considering it is admitted by PW No.8, I.O. that
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the product was to be exported in this case and he had not verified from
complainant whether she possessed 20D license which is required for
the export of herbal product. The complainant has not produced to her
the material export license, the document necessary to export that
material safety data sheet. It is admitted by the I.O. that without such
material export license, 20D license and material safety data sheet no
pharmaceutical product can be exported. He admitted that he did not
have any proof that accused persons in the present case were
beneficiaries and no cash was recovered from accused No.2. He has
categorically and specifically admitted that he had not produced proof
showing connection of accused No.2 with other accused persons. He
again admitted manifestly, that there is nothing on record to show that
accused No.2 ever contacted the complainant and there is nothing on
record that accused No.2 has ever given cash money regarding this case
to accused No.1. If such are the circumstances, then the Investigating
Officer has not collected any evidence to show that present accused
person who are sent for trial i.e. accused Nos. 1 & 2, were the main
culprits and were having common intention with the many culprits.
There are so many persons involved in cheating the complainant and
they are many in numbers as discussed above, who dishonestly induced
the complainant to invest an amount of Rs.89,28,875/. However, it is
also revealed that the role of accused Nos. 1 & 2 was not of any nature
connecting to the crime, but just delivery of the product, not just that
they had no intention but even knowledge of fact that Ucchi was having
connection with the main accused persons and he was aware of the
inducement. The principle of “Actus non facit reum nisi mens sit Rea”
will be applicable. So, this Court is constrained to observe that this
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Investigation Officer has only arrested the persons, who have least
complicity in this case, much lesser with the offence investigated and
their conduct is not of any incriminating nature. All the persons who
were instrumental and played an active role, are all shown as
absconding accused, and none of them were arrested. This court can
leave an understanding that the persons who were staying abroad like
UK were not within the range of the hands of law, easily. However,
people who were in India and whose names were revealed, they could
have been arrested and they could have been brought to trial to do
complete justice in this case. The investigation of such nature does not
install a sense of security in the mind of common citizen. This Court
hopes that the concerned police station incharge will take note of such
fact. It is not just a question of human rights of the accused persons,
who were sent to trial, but it is also the rights of the complainant which
have to be given due respect in the process and sense of victimology,
which is also the ultimate object, of the criminal procedural law
evincing 'rectitude of decision making'.
24. Comprehending all the evidence on record, it can be safely
held that the prosecution has failed to proof any common intention of
the accused Nos. 1 & 2 with the other accused persons, who cheated
informant since the vicarious liability is not established. The
prosecution has failed to prove its case beyond reasonable doubt to
prove the offence the accused are charged with, and hence the point
Nos. 1 to 3 are answered in the negative.
AS TO POINT NO. 4 :
25. Considering the determination of point Nos. 1 to 3 in the
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negative, I am of the opinion that, the accused persons are liable to be
acquitted. Hence, the following order.
O R D E R
1. Accused No.1 Jaiganesh Mohan Patthe, age : 28 Years, R/at
Sagar Apartment, Room No.402, 4th floor, Sector12D,
Koparkhairane, Navi Mumbai is hereby acquitted vide
Section 248 (1) of Cr.P.C. for the offence punishable under
Sections 419, 420 of the Indian Penal Code & 66(D) of the
Information Technology Act.
2. Accused No.2 Ikeb Okoroko age : 38 Years, R/at :Room
No.7, Ground Floor, Crisant Niwas, Plot No.783, Near Sky
Villa Building, Sector34A, Kharghar, Navi Mumbai, is
hereby acquitted vide Section 248 (1) of Cr.P.C. for the
offence punishable under Sections 419, 420 of the Indian Penal
Code & 66(D) of the Information Technology Act.
3. The earlier P.R. bond of accused persons stand cancelled.
4. The accused persons are in jail, hence both be released
immediately, if not required in any crime or offence.
5. The accused person are directed to execute P.R. Bond of
Rs.15,000/ each as per Section 437(A) of Cr.P.C. to appear
before the higher court, as and when such court issues notice in
respect of any appeal against the judgment of this court.
6. Muddemal property i.e. mobile at Sr. No.1 in the chargesheet
be returned to accused No.1. Muddemal properties i.e. mobiles,
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laptops and Honda City car and passport at Sr. Nos. 2 to 9 be
returned to the accused No.2. Muddemal properties at Sr.
No.10 & 11 be returned to the concerned police station, i.e.
properties be returned to the respective person from whom they
were seized, after appeal period is over.
(Judgment dictated on dais and pronounced in open court).
Sd/
Date.: 29.07.2021
(A. A. Panchbhai)
Addl. Chief Metropolitan Magistrate
22nd Court, Andheri, Mumbai
*csj
Dictated on : 29.07.2021
Transcribed on : 31.07.2021
Signed on : 04.08.2021
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