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TMI Blog2017 (12) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order qua the petitioner is not only cryptic, but also totally mechanical, taking cognizance and issuing process without any application of mind and without there being any such material against the petitioner, which can be considered as sufficient to subject him to face the rigours of trial. As per the petitioner, it is limited but necessary pre-requisite for taking cognizance and issuing process, to arrive at prima facie satisfaction regarding existence of such evidence on record which may be sufficient to proceed against the petitioner for the alleged offences. According to the petitioner, there is no such evidence in the entire charge sheet filed by the respondent and in absence thereof the impugned order is liable to set aside, or else it would cause substantial injustice and would be abuse of process of law on the vice of Articles 14 and 21 of the Constitution of India. 3. Learned Counsel for the respondent raised preliminary objection on the maintainability of the Revision Application and also argued on merits of the application. A Counter Affidavit was also filed. 4. It was argued by the ld. Counsel for the respondent that - 4.1 The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a complex one. From whatever material that is collected so far, there is prima facie evidence against the present petitioner. Unless satisfactory explanation is coming forth from the present petitioner as regards the various sum deposited in the company, wherein the present petitioner has direct/indirect involvement it is literally impossible to say that there is no role played by the present petitioner. The amount may be to the tune of 15-16 crores. This remains unexplained satisfactorily and in all probability this is a commission that has been received by the present petitioner towards the hawala scam. 4.7 He submitted that as the investigation is still going on about various entries wherein there are probably involvement of the present petitioner. 4.8 He submitted that the hand writing of the bogus bill of entries are required to be scrutinized as regard the writing of the same. Involvement of the present petitioner in that also is to be ascertained. As stated earlier there are 454 bill of entries under scrutiny by the Custom Department. This is stated because in this 454 bill of entries there are different Custom Officers who were discharging the duties at rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 204 CrPC as follows - "21. Having regard to the said categorical position stated by this Court in innumerable decisions resting with the decision in Rajendra Kumar Sitaram Pande as well as the decision in K.K. Patel, it will be in order to state and declare the legal position as under." 21.1 The order issued by the Magistrate deciding to summon an accused in exercise of his power under Sections 200 to 204 CrPC would be an order of intermediatory or quasi-final in nature and not interlocutory in nature. 21.2 Since the said position viz., such an order is intermediatory order or quasi-final order, the revisionary jurisdiction provided under Section 397, either with the District Court or with the High Court can be worked out by the aggrieved party. 21.3 Such an order of a Magistrate deciding to issue process or summons to an accused in exercise of his power under Sections 200 to 204 CrPC, can always be subject-matter of challenge under the inherent jurisdiction of the High Court under Section 482 CrPC. 22. When we declare the above legal position without any ambiguity, we also wish to draw support to our above conclusion by referring to some of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hesitation to set aside the order passed by the Magistrate taking cognizance of the offence alleged. It is also not clearly proved that to hold a person guilty of cheating, it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. The order of the Magistrate and of the High Court requiring Accused 1- appellant herein to face trial would not be in the interest of justice. On the other hand, in our considered opinion, this is a fit case for setting aside the order of the Magistrate as confirmed by the High Court for issuance of process and the proceedings itself." (ii) Indseam Services Ltd. v. Bimal Kumar Kejriwal (HUF), (2001) 8 SCC 15 : "2. M/s. Indseam Services Limited, an accused in Complaint Case No. C-1628 of 1996 pending before the Metropolitan Magistrate, XlIth Court, Calcutta, has filed this appeal assailing the order dated 10-7-2000 of the Calcutta High Court dismissing the revision petition filed by it for quashing the order of the Magistrate taking cognizance of the offence under Section 420 of the Indian Penal Code, and issuing process to the accused." "4 ..............The order passed by the Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of a criminal proceeding. At this stage the Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion irrespective of the views expressed by the police in its report and may prima facie find out whether an offence has been made out or not. 17. The taking of cognizance means the point in time when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed. At the stage of taking of cognizance of offence, the Court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record." "19. The correctness of the order whereby cognizance of the offence has been taken by the Magistrate, unless it is perverse or based on no material, should be sparingly interfered with. In the instant case, anyone reading the order of the Magistrate taking cognizance, will come to the conclusion that there has been due applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice......" 13. Moreover, the Hon'ble Supreme Court in Mohit v. State of U.P., (2013) 7 SCC 789 held that 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. The Hon'ble Supreme Court observed that - "27. In our considered opinion, the complainant ought to have challenged the order before the High Court in revision under Section 397 Cr.PC and not by invoking inherent jurisdiction of the High Court under Section 482 CrPC. Maybe, in order to circumvent the provisions contained in sub-section (2) of Section 397 or Section 401, the complainant moved the High Court under Section 482 Cr.PC. In the event a criminal revision had been filed against the order of the Sessions Judge passed under Section 319 Cr.PC, the High Court before passing the order would have given notice and opportunity of hearing to the appellants. 28. So far as the inherent power of the High Court as contained in Section 482 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of complainant ICICI Bank Ltd. has given a written complaint to the effect that, "(1) Shailesh Rameshbhai Patel, Resident of : Room No. 32, Second floor, 9/19B, Dr. Vagam Street, Kavel Cross Lane, MUMBAI - 400 002; and (2) Aniket Ashok Ambedkar, Res. of 872, G.S. Subedar Ramji Ambedkar Nagar, A.G. Khan Road, Worli, Mumbai - 400 018 - the Directors of M/s. R.A. Distributors Pvt. Ltd. having registered office at : 6/1943, Office No. 303, Cabin No. 1, Third floor, Navkar Building, Opposite Kabir Mandir, Mahidharpura, Surat, have hatched a conspiracy of committing cheating against the Government of India, and as a part of that conspiracy, stating that, their Company is engaged in importing rough diamonds and cut polished diamonds from foreign country, and selling the said diamonds in the local markets of Surat and Mumbai, and by stating this, opened a Current Account in ICICI Bank, Shyam Chambers, Opp.: Sub-Jail Surat branch in the name of R.A. Distributors Pvt. Ltd., prepared 17 different Bill of Entries (BOEs) in respect of their company having imported rough diamonds and cut polished diamonds from different companies stationed at Dubai and Hongkong, made false and bogus se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheating with Government of India...." " 15.3 The allegations in the case concern hawala, total amount of which as alleged now is likely to be more than Rs. 5000 crores. Bogus bill of entry is the genus of the scam. Total 861 Bills of Entry were under scrutiny by Custom Department, out of which at least 454 bill of entries have been found to be bogus amounting to Rs. 2846 crores (Rs. 28,46,51,58,616/-). Out of the bogus bill of entries, FIR for 17 bill of entries to the tune of 104 crores transferred by Hawala is under question. This transfer has been carried out through 7 companies operating 9 account with ICICI bank, Ring Road, Surat. This is not the only transacting agency. Other branches of ICICI bank itself at Athwalines are also having some hawala. This is also under investigation in (DCB I-Cr.No. 17/2014). The seven companies in question, are namely - (1) R.A. Distributors Pvt. Ltd.; (2) Maa Mumba Devi Gems Pvt. Ltd.; (3) Hem Jewellers Pvt. Ltd.; (4) Ridhdhi Exim Pvt. Ltd.; (5) M.B. Offshore Distributors Pvt. Ltd.; (6) Trinetra Trading Company Pvt. Ltd.; and (7) Ramshyam Exports Pvt. Ltd., which remitted the funds out of India by presenting forged Bills of Entry. 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds by the petitioner is however not the subject matter of the instant case. No fraud relating to forged Bills of Entry and remittances on the basis thereof, is even alleged in the imports of diamonds in the petitioner's company M/s. Nile Industries Pvt. Ltd., nor is there any allegation of any transaction of his Company with any of the the seven companies which made remittances on the basis of forged Bills of Entry. 15.8 In the Charge-sheet dated 18-8-2014 and First Supplementary Charge Sheet dated 30-9-2014, the petitioner who was arrested on 20-8-2014, was therefore shown only as "suspect", as the respondent presumably did not find the statement of Shri Praful Patel sufficient to try the accused for the alleged offence. 15.9 In the Second Supplementary Charge-sheet dated 15-11-2014, the petitioner was shown as Accused No. 1 in the array of accused. 15.10 On this second Supplementary Charge-sheet cognizance was taken vide the impugned Order and process was issued against the petitioner. 15.11 With reference to the petitioner herein, the said Second Supplementary Charge-sheet apart from the said statement of Shri Prafulbhai Mohanbhai Patel refers and relies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ".....On being asked about Madanlal Manekchand Jain and Afroz Fatta and Narendra Jain and Mithalal Jain, I state that I do not know them ...." 15.16 In his statement dated 24-8-2014, Shri Kalidas Natverlal Patel, Branch Manager in S. Babulal & Co. stated that :- ".....I do not know the full address of Rajabhai. I do not know Afroz Mohamed Hasan Fatta nor his payment has been received in our Angadiya firm. But as name of Afroz Fatta came in newspapers and T.V. I came to know about it...." 15.17 In his statement dated 24-8-2014, Shri Urvish Dilipbhai Shah, Partner of P. Umeshchandra & Co. stated that :- ".... On being asked about Afroz Mohamed Hasanfatta and Amit @ Bilal Gilani, I state that I do not know both of them, nor I have contacted them till today." 15.18 In his statement dated 27-9-2014, Shri Harshad Maganlal Modi, cheque discounter stated that :- "....I do not know Afroz Fatta, Bilal Gilani, Madanlal Jain, John, Sarfaraj, Sunil Agrawal, Ratan Agrawal, Narendra Jain, Mithalal......" 15.19 In his statement dated 9-10-2014, Shri Amrutbhai Navratanlal Patel, owner of Gujarat Angadia Service stated that :- ".....On bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t account is also freezed by Enforcement Department. Angel Broking Account Code is J38713 and Demat Account number is 1203320008361734." 15.21 In his statement dated 18-10-2014, Shri Samir Jiker Godil Manager of Nile Industries Pvt. Ltd., stated that :- "...... I had obtained an unsecured loan of Rs. 1 Crore 15 Lakhs from Afrozbhai in the month of February, Year 2014. The said amount was given to me by crediting the same in the account of my wife Foziya Samir Godi with Union Bank of India, Nanpura Branch from the bank account of his company viz. Nile Trading Corporation (Proprietorship) with H.D.F.C. Bank, Ghod-dod Road, branch. I had taken this money from him for doing business in share market. The account for doing the business of shares is in the name of my wife Foziya in Angel Broking Ltd. bearing Account No. F2993 since the month of June-July of Year 2013, and in trade Bulls Limited bearing Account No. F430 since the month of December of Year 2013. After taking this loan from Afrozbhai, I had repaid Rs. 91 lakhs towards the loan paikee in March, 2014. I had deposited the said amount in the bank account of another two persons as per the say of Afrozbhai from the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances impute any culpable knowledge or mens rea, sufficient to subject the petitioner to the rigours of trial. I have seen the statements of Shri Jafar Mohamed Hasanfatta, brother of the petitioner and of Shri Samir Jiker Godil, Manager of M/s. Nile Industries Pvt. Ltd., recorded in this behalf. However, I find that even these statements are also totally exculpatory qua the petitioner. Transfer of funds from the account of the petitioner's company to his relatives or arranging any loan in the account of his brother does not show commission of any offence alleged against the petitioner, even on prima facie basis. 17. There is no material to show any transaction whatsoever of the petitioner with the seven companies in question, namely - (1) R.A. Distributors Pvt. Ltd.; (2) Maa Mumba Devi Gems Pvt. Ltd.; (3) Hem Jewellers Pvt. Ltd.; (4) Ridhdhi Exim Pvt. Ltd.; (5) M.B. Offshore Distributors Pvt. Ltd.; (6) Trinetra Trading Company Pvt. Ltd.; and (7) Ramshyam Exports Pvt. Ltd., which remitted the funds out of India by presenting forged Bills of Entry. 18. The case therefore rests solely on the said statement dated 1-8-2014, of Shri Prafulbhai Patel. However, to satisfy my ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome business. They deposed that as and when their sister came to their house, she would tell them that the accused used to insert cloth in her mouth and give beatings for dowry." "18. The learned counsel for the State, however, invited our attention to Section 6 of the Evidence Act and referred to a decision of this Court in Sukhar v. State of U.P. 19. Section 6 of the Evidence Act reads thus : "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." 20. In Sukhar case, this Court noticed the position of law with regard to Section 6 of the Evidence Act thus : (SCC pp. 511-12, paras 6-7) "6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case, insofar as admissibility of the statements of PW 4 and PW 5 about what the deceased had told them against the accused of the treatment meted out to her is concerned, is not at all attracted." 21. Thus, the Hon'ble Supreme Court was dealing with a case involving Section 304B and 306 IPC, where PW 4 and PW 5 stated that their sister told them that the accused (husband) was torturing her as he wanted that her brothers should arrange a job for him or the house be given to him or a cash of Rs. 1 lakh be given to enable him to do some business. They deposed that as and when their sister came to their house, she would tell them that the accused used to insert cloth in her mouth and give beatings for dowry. However, it was held on the said test laid down that rule of res gestae was not at all applicable. 22. Learned Counsel for the petitioner pointed out that even in the instant case, the hearsay oral evidence in the form of statement dated 1-8-2014 of Shri Prafulbhai Mohanbhai Patel is neither contemporaneous, nor covered by any of the illustrations mentioned in Section 6 for application of the "rule of res gestae" which is an exception to the norma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any unlawful manner to different companies at Dubai and Hongkong, (h) any dealing with the concerned bank officials, (i) opening bogus accounts, (j) arranging cash payments with angadiyas or cheque discounters or with Prafulbhai Patel, (k) depositing cash payments in banks for the alleged transactions, (l) payment of commission to the Financiers, (m) creating balance in the bank through RTGS/NEFT transfers in different accounts, (n) any falsification of accounts in terms of Section 477A of IPC, (o) any commission of fraud against the Government of India. 26. The learned Counsel for the respondent submitted that there is a suspicion that the petitioner has received commission towards the hawala scam, and the investigation is still going on. The handwriting of the bogus bill of entries are yet to be scrutinized to ascertain role of the petitioner, after collecting all specimen signature of the Custom Officers and sending them to FSL for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, oral or written, made otherwise than a witness in giving evidence and a statement contained or recorded in any book, document or record whatever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated. An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. That this species of evidence cannot be tested by cross-examination and that, in many cases, it supposes some better testimony which ought to be offered in a particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its intrinsic weakness, its incompetency to satisfy the mind of a Judge about the existence of a fact, and the fraud which may be practiced with impunity, under its cover, combine to support the rule that hearsay evidence is inadmissible." "38. The reasons why hearsay evidence is not received as relevant evidence are : (a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny role against the petitioner. 32. There is nothing in the Charge-sheet/Supplementary Charge-sheets to even remotely suggest any role of the petitioner in setting up of any of the foreign companies who were recipient of the amounts fraudulently sent abroad or any Indian Entity which fraudulently remitted the amounts out of India, or suggesting controlling of any such foreign or Indian entities, or of having sent or having received the remitted amount out of India directly or indirectly. There is no tangible admissible evidence which can prima facie make out or satisfy the basic ingredients of the offences alleged under Sections 420, 465, 467, 468, 471, 477A and 120B of IPC, sufficient enough to even subject the petitioner to any trial on basis thereof. 33. I am satisfied that the trial Court has committed manifest error in taking cognizance and issuing process against the petitioner for proceedings against him for the alleged offence vide the impugned order, when there is no prima facie material sufficient to proceed against him. I record my appreciation for the able assistance given by the learned Counsels appearing for both the sides. 34. The learned Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the FIR or produced by the prosecution to show that Vijaya Satardekar was in any way involved in the alleged criminal offence committed by her husband Raniit Satardekar. The only allegation against her is that the sale deed was in her favour. In our opinion this does not prima facie make out any offence. In our opinion, therefore, the criminal proceeding against Vijaya Satardekar was rightly quashed by the High Court and the criminal appeal in which Vijaya Satardekar is the respondent is dismissed." "39. However, as indicated by my learned Brother, the complaint made does make out a prima facie case against accused Ranjit Satardekar and the cognizance taken by the learned Magistrate cannot be faulted and the appeal as far as he is concerned, must be allowed. However, even prima facie, none of the offences referred to in the charge-sheet can be made out against accused Vijaya Satardekar and she has been roped in only with the aid of Section 120B which is also not substantiated. The appeal as far as she is concerned, must be dismissed." 35. Thus, in a case of executing sale deed in favour of wife by deceit and misrepresentation, the Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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