9911796707
TMI Blog2017 (12) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, out of which at least 454 bill of entries have been found to be bogus amounting to 2846 crores - The petitioner is neither director nor any authorized person for any of these seven companies, and there is neither any allegation that any of these companies were formed and controlled by the petitioner, nor that the bank accounts of any of these companies were managed by the petitioner. Neither there is any allegation or material to show that the petitioner was fraudulently sending abroad his undisclosed income by the alleged modus operandi, nor is there any iota of allegation or material to show that he was receiving cash from any person whatsoever to fraudulently send the same abroad i.e. for hawala to earn any commission. In absence of any such tangible material, there is no strong and reasonable basis for such degree of suspicion, that the petitioner may have received commission towards the hawala scam, which can be considered sufficient for proceeding against the petitioner and subjecting him to rigours of trial. I am satisfied that there is no prima facie material against him. The trial Court has committed manifest error in taking cognizance and issuing process against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jurisdiction under Section 397 read with 401 of CrPC, that too after considerable delay. 4.2 He submitted that even otherwise, the challenge to an order taking cognizance has no merits as there is no requirement to record reasons for taking cognizance. He relied on the judgment of the Hon'ble Supreme Court in U.P. Pollution Control Board v. Mohan Meakins Ltd., (2000) 3 SCC 745, wherein it was observed that - "6. In a recent decision of the Supreme Court it has been pointed out that the legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons vide Kanti Bhadra Shah v. State of W.B……" 4.3 He also relied upon the judgment of Hon'ble Supreme Court in Nupur Talwar v. CBI, (2012) 11 SCC 465 in which challenge was by the Complainant against a detailed Order taking cognizance against the Complainant, whereby the closure report filed by the police as well as the protest petition filed by the Complainant, were both rejected by the Trial Court with a detailed judgment. The Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill of entries. Process of collecting the bill of entries wherein different Custom Officers have put their signatures on genuine bill of entries in day to day transaction is about to be collected. It is only after collecting all these specimen signature of the Custom Officers, along with this specimen signature the other document collected like specimen signature of the accused, bogus bill of entries having signature etc., are to be collected and to be sent to FSL for opinion of hand writing expert. As comparison of this is to be made out as a single event and cannot be done in piecemeal manner, right now sending whatever specimen signature with document containing other signature being sent for opinion and then as and when other signature of the Custom Officers are made available being sent for comparison is impractical reality. This has to be done, at a stretch. 4.9 He submitted that few of various Custom Officers who are involved in signing the bill of entries during relevant period some of them have been promoted, few have retired and hence process of calling them and collecting their signature is underway but because of their status of either preoccupied with union level ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Haryana, the decisions in Madhu Limaye v. C. Shukla, K.M. Mathew, Rakesh Kumar Mishra v. State of Bihar ending with Rajendra Kumar Sitaram Pande, was considered and by making specific reference to para 6 of the judgment in Rajendra Kumar Sitaram Pande, this Court has held as under in para 10 : (Om Kumar Dhankar case, SCC p. 255) "10. In view of the above legal position, we hold, as it must be, that revisional jurisdiction under Section 397 CrPC was available to Respondent 2 in challenging the order of the Magistrate directing issuance of summons. The first question is answered against the appellant accordingly." 23. Therefore, the position has now come to rest to the effect that the revisional jurisdiction under Section 397 CrPC is available to the aggrieved party in challenging the order of the Magistrate, directing issuance of summons." 9. I have also considered the following judgments of the Hon'ble Supreme Court in the matters concerning challenge in a Revision Petition to the order taking cognizance and issuing process. When the concerned High Court had declined to interfere in Revision Petition, the Hon'ble Supreme Court had observed as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiny of the materials on record, I find that there is sufficient ground to proceed against the accused persons under Sections 120B/420 IPC." Issue summons against all the accused persons under Sections 120B/420 IPC; requisites are to be put in at once." "5. The appellant filed a revision petition in the High Court assailing the said order………" "8. On a perusal of the order under challenge it is clear that the learned Single Judge disposed of the revision petition filed by the appellant for setting aside the cognizance order and for quashing the criminal proceedings without entering into the merits of the case. The learned Single Judge did not consider the nature of the contract between the parties, the arrangement for payment of dues by the accused persons to the complainant, nor did he record a finding that the ingredients of the offence of cheating defined under Section 415 IPC were prima facie made out from the averments in the complaint petition and the statement on oath by the complainant before the learned Magistrate……………While judging the question whether the cognizance order passed by the learned Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order. The order of the High Court passed on a criminal revision under Sections 397 and 401 of the Code (not under Section 482) at the instance of Dr. Mrs. Nupur Talwar would also show that there has been a proper application of mind and a detailed speaking order has been passed." 11. The ld. Counsel for the petitioner has rightly relied upon the judgment in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749, wherein the Hon'ble Supreme Court delineated the duties and obligations cast while summoning of an accused in a criminal case as follows - "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that the inherent power of the Court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged." 14. In view of the above, I am satisfied that the preliminary objection of the respondent has no merits and the petitioner has rightly invoked statutory remedy under Section 397 read with 401 of Cr.P.C., rather than invoking inherent jurisdiction. In view of the above binding precedents, I also have no hesitation in holding that it is not only within the jurisdiction, but is an obligation of this Court to look into as to whether the taking of cognizance and issuance of process was mechanical without there being any prima facie case for bringing home ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authorities and inspite of knowing that the same are bogus and fabricated, submitted the same as being true in ICICI Bank, situated in Shyam Chambers, opposite Sub-Jail, and sent the total amount of ₹ 104,60,99,082/- to (1) MABROCK TRADING FZE, DUBAI; (2) NIPPON INCORPORATION LTD., HONGKONG; (3) CORNELL TRADING (HK) LTD., HONGKONG; (4) AL ALMAS FZE LTD., HONGKONG; (5) AL SABA GENERAL TRADING FZE, DUBAI; and (6) DAIMUR GEMS JEWELLERY (LLC) LTD., HONGKONG in between the period from 13-12-2013 to 24-2-2014, and thereby has committed cheating with the Government of India etc...." and on lodging this complaint with DCB Police Station, the same was registered at DCB Police Station vide I C.R. No. 16/2014 for the offence under Secs. 420, 465, 467, 468, 417, 477A, 120(b) of Indian Penal Code. The complainant has stated in his further statement, the fact that, "during the course of investigation in this offence, the Directors of M/s. R.A. Distributors Pvt. Ltd. and M/s. Ridhdhi Exim Pvt. Ltd. produced another three Bill of Entries bearing the seal and signature of the Custom Officials in ICICI Bank of ₹ 18,69,67,187/- and the Directors of (1) M/s. Trinetra Trading Co. Pvt. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp;The petitioner is neither director nor any authorized person for any of these seven companies, and there is neither any allegation that any of these companies were formed and controlled by the petitioner, nor that the bank accounts of any of these companies were managed by the petitioner. 15.5 Statements of various persons were recorded on different dates during the course of investigations. 15.6 On 1-8-2014, a statement of one Shri Prafulbhai Mohanbhai Patel was recorded. This statement of Shri Praful Patel scribed in Gujarati is to the effect that - "……..One day Shri Madan Lal Jain called me in his office. He introduced me to two persons named Afroz Hasan Fatta and Amit @ Bilal Gilani, and Madan Lal Jain told me that - "Afroz Fatta and Amit @ Bilal Gilani are residing at Surat. We all together are doing the business of Import and Export of Diamonds. As my entire work is being handled by Narendra Jain, similarly, all the work of Afroz Fatta is being handled by Amit @ Bilal Gilani. For the Import and Export business, we are having accounts of our Company in ICICI and AXIS Banks at Surat. If I, my man Narendra Jain, Afroz or Amit @ Bilal Gilani, gives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relies upon the statements of various further witnesses named as follows, and also refers to certain banking transactions - (i) Shri Babubhai Kanjibhai Patel Partner of S. Babulal Angadia - statement dated 11-8-2014; (ii) Shri Pravinbhai Jethabhai Patel, Manager of S. Babulal - statement dated 11-8-2014; (iii) Shri Jatin Dilipkumar Shah, Manager of P. Umeshchandra & Co. - statement dated 22-8-2014; (iv) Shri Ashwinbhai Haribhai Patel, Manager of P. Umeshchandra & Co. - statement dated 23-8-2014; (v) Shri Kalidas Natverlal Patel, Branch Manager in S. Babulal & Co. - statement dated 24-8-2014; (vi) Shri Urvish Dilipbhai Shah, Partner of P. Umeshchandra & Co. - statement dated 24-8-2014; (vii) Shri Harshad Maganlal Modi, cheque discounter - statement dated 27-9-2014; (viii) Shri Amrutbhai Navratanlal Patel, owner of Gujarat Angadia Service - statement dated 9-10-2014; (ix) Shri Jafar Mohammed Hasanfatta, elder brother of petitioner - statement dated 11-10-2014; (x) Shri Samir Jiker Godil, Manager of Nile Industries Pvt Ltd. - statement dated 18-10-2014. 15.12 In his statement dated 11-8-2014, Shri Babubhai Kanjibhai Patel, Partner of S. Babulal Angadia stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that I do not know any of them. I came to know about them by reading in newspapers regarding the Hawala Scandal……" 15.20 In his statement dated 11-10-2014, Shri Jafar Mohammed Hasanfatta, elder brother of petitioner stated that : "……. In March 2014, when the officers of the office of Enforcement visited the house of my brother Afroz for search and inspection, at that time, for the first time I came to know through the officers of Enforcement in regard to the involvement of my brother Afroz in this offence, and after some time, Enforcement Department had arrested Afroz Hasan Fatta. As the offence is also registered in Crime Branch, Surat city in regard to this offence, Crime Branch also had arrested Afroz..." "....Here, on being asked by you sir in regard to the credit entry of ₹ 1 Crore on date 6-1-2014 and ₹ 2 Crores on date 31-1-2014 in my aforesaid Current Account of Natural Trading Company with Union Bank, Nanpura branch, I state that...." "……. I do not have any information with regard to the fact that, in January, 2014 as there was necessity of certain money in the business of purchase and sale of shares, I a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w in whom account the said amount was deposited. Thereafter, on 21-4-2014, the aforesaid account of my wife Foziya was freezed by Enforcement Department. Hence, there is a credit balance of ₹ 59 lakhs in this bank account. I also have my bank account in Union Bank of India, Nanpura branch, bearing Account number 3641020100055539." Xerox copy of Statement from dated 6-1-2014 up to 26-3-2014 of Personnel account No. 364101010011163 of Union Bank Nanpura Branch of Afroz Mohammad Hasanfatta, has been submitted. 15.22 None of these statements however allege anything incriminating against the petitioner. Neither the angadiyas nor the cheque discounters who admittedly were recipients of huge cash payments for further transfer to other companies, alleged any dealing or transaction with the petitioner, much less any incriminating transaction. Representatives of S. Babulal Angadia and P. Umeshchandra & Co., whose names are appearing in the statement of Shri Prafulbhai Patel, also did not reveal any such transaction with the petitioner herein in their statements. 16. I have seen that the said Second Supplementary Charge Sheet refers to certain banking transactions evidencin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Counsel for the petitioner to throw light on the issue of applicability or otherwise of the "rule of res gestae" which is an exception to admissibility of a hearsay evidence. 19. In response to my specific query, the learned Counsel for the petitioner invited my attention to the Section 6 of the Evidence Act, 1872, which reads as under - "6. Relevancy of facts forming part of same transaction. - Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustrations (a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. (b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and gaols are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them. (c)&e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore's Evidence Act reads thus: 'Under the present exception [to hearsay] and utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car brake was set or not set), and the only condition is that it shall have been made spontaneously i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued.' 7. Sarkar on Evidence (15th Edn.) summarises the law relating to applicability of Section 6 of the Evidence Act thus: '1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lbhai Patel, and I find merit in the submission of the learned Counsel for the petitioner. I also find that the allegations of offences which are in issue are under Sections 420, 465, 467, 468, 471, 477A and 120B of IPC. The said statement nowhere shows role of the petitioner in any cheating, forgery, falsification of accounts, conspiracy, making foreign remittance on the strength of fake Bills of Entry, dealing of the petitioner in cash with cheque discounters or angadiyas to arrange for remittances against forged Bills of Entry etc. I have also seen that regarding the forged bills of entry, the said statement of Shri Prafulbhai Patel shows that he himself was submitting Bills of Entry to the bankers after receipt of the same from Mumbai Office of Shri Madanlal Jain. There is no evidence oral or documentary or circumstantial, to suggest any concern of the petitioner with the forging or in submitting forged Bills of Entry or instructing bank or any other person to make remittances on the basis thereof, enough to even raise such suspicion against the petitioner, which can be sufficient to subject him to a criminal trial. 24. In view of the above, a specific query was posed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner's involvement in the forgery. Neither there is any allegation or material to show that the petitioner was fraudulently sending abroad his undisclosed income by the alleged modus operandi, nor is there any iota of allegation or material to show that he was receiving cash from any person whatsoever to fraudulently send the same abroad i.e. for hawala to earn any commission. In absence of any such tangible material, there is no strong and reasonable basis for such degree of suspicion, that the petitioner may have received commission towards the hawala scam, which can be considered sufficient for proceeding against the petitioner and subjecting him to rigours of trial. I am satisfied that there is no prima facie material against him. 28. The judgment of the Hon'ble Supreme Court in Kalyan Kumar Gogoi v. Ashutosh Agnihotri - (2011) 2 SCC 532 has been rightly relied upon by the learned Counsel for the petitioner to show that so far as imputations against the petitioner herein, in the statement dated 1-8-2014 of Shri Praful Patel are concerned, are only 'hearsay' in nature, and a "hearsay evidence" is inadmissible. The Hon'ble Supreme Court clearly in unambiguous terms held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation received from others is inadmissible." 29. I am of the firm view that the statement of Shri Praful Patel, which is inadmissible evidence qua the petitioner herein, is not sufficient to proceed against the petitioner for subjecting him to a criminal trial. I have noted the fact that despite this statement dated 1-8-2014 of Shri Prafulbhai Patel even the respondent themselves did not add the petitioner in the array of accused in the First Supplementary Charge-sheet dated 30-9-2014, presumably in view of the settled position of law in regard to such hearsay evidence. 30. There is no material whatsoever either direct or circumstantial, to point out any connection of the petitioner with the alleged offences of forgery, cheating, conspiracy, etc. Similarly, there is nothing to suggest any abetment by the petitioner in any of the alleged offences much less in creation and submission of forged bills of entry, or of instructing directly or indirectly the concerned bankers to make remittances out of India on the strength of such forged bills of entry. It is a matter of record that neither any of the cheque discounters or the Angadiyas, who are named as witnesses for having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the document which was being executed by them was for enabling Ranjit to represent them in the inventory proceedings in progress on the death of Andre Andrade, although what was actually executed by them was a power of attorney. This power of attorney was used by the accused for executing a sale deed in favour of his wife Vijava Satardekar and Sadiq Sheikh in the year 1991, but the said sale deed was presented for registration only in the year 2001. It is alleged that the complainant came to know only in August 2001 for the first time about the execution of the sale deed in 1991. Thus it is alleged that the property of the complainant was purported to have been sold away by Ranjit Satardekar, Advocate, by deceit and misrepresentation for which he deserved to be punished under Sections 409, 420 and other provisions of IPC. 8. On the basis of the aforesaid FIR, the police investigated the case and filed a charge sheet against both Ranjit Satardekar and Smt Vijaya Satardekar as well as two others. Thereafter, cognizance was taken of the offence alleged in the charge-sheet and process was issued by the Judicial Magistrate, First Class, Panaji under Sections 468/471/420/120 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a facie material in the FIR or the Charge Sheet/Supplementary Charge Sheets, in the form of any tangible evidence, or even any circumstantial material to show existence of any 'mens rea' or to impute culpable 'knowledge' on the petitioner, so as to subject him to trial for the alleged offences. The petitioner was also roped in only with the aid of Section 120B which is also not substantiated with any prima facie material. Therefore, I find merit in the submissions made by the learned Counsel appearing on behalf of the petitioner and I have no hesitation in holding that the impugned Order was passed mechanically and deserves to be set aside in the interest of justice. 37. I find that the entire fulcrum of the allegations levelled against the petitioner is around the said inadmissible hearsay evidence, and it forms the foundation of the case alleged against the petitioner. I am persuaded to agree with the contention of the learned Counsel for the petitioner that if this foundation is removed from consideration, the entire structure would fall. The legal maxim sublato fundamento cadit opus is thus squarely applicable in the instant case. In view of the above, the petitioner cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
