Bombay High Court
Manshi Dosal Barot vs The State Of Maharashtra on 5 December, 2014
Bench: A.M. Thipsay
Tilak 1/8 (4)WP-1802-14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1802 OF 2014
Manish Dosal Barot .. Petitioner
Versus
The State of Maharashtra .. Respondent
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Mr. Prabhanjay Dave, Advocate for the petitioner.
Ms.S.S.Kaushik, APP for the Respondent State.
ig ---
CORAM : ABHAY M. THIPSAY, J.
DATED : 5th DECEMBER 2014.
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ORAL ORDER :-
1 Heard.
2 As an affidavit in reply had already been filed, by an
order dated 14th November 2014, it was decided that the petition
shall be disposed of finally at the admission stage itself.
3 Rule. By consent, Rule made returnable forthwith.
4 By consent, heard finally.
5 The petitioner is one of the accused in C.R.No.38 of
2003 which is in respect of offences punishable under sections 465
IPC, 467 IPC, 468 IPC, 471 IPC, 474 IPC, 420 IPC read with
section 120B of the IPC. Though all the accused allegedly
involved in the matter have not yet been arrested, investigation
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has been completed, and a charge-sheet has been filed against the
applicant and one Tahir Ahmed Khan who are the only two
accused in the said case, that have been arrested so far. The
petitioner had made an application for discharge, as contemplated
under section 239 of the Code of Criminal Procedure (for short
'the Code'), but the learned Addl. Chief Metropolitan Magistrate
before whom the case is pending, rejected the same by an order
dated 17th May 2012. Aggrieved thereby, the petitioner moved the
Court of Sessions by filing an application for revision, but the
learned Addl. Sessions Judge dismissed the revision. It is under
these circumstances that the petitioner has approached this Court,
invoking its jurisdiction under Article 227 of the Constitution and
its inherent powers.
6 I have heard Mr.Prabhanjay Dave, learned counsel for
the petitioner. I have heard Ms.S.S. Kaushik, learned APP for the
State. With their assistance, I have gone through the application
and the annexures thereto, which include a copy of the charge-
sheet. I have also gone through the counter affidavit filed by the
Investigating Officer.
7 The contention of the learned counsel for the
petitioner is that there is absolutely no case for proceeding against
him. It is submitted that the accusation levelled against him, is
groundless.
8 I have carefully gone through the facts. They can be
best taken from the counter affidavit filed by the Investigating
Officer. In brief, they may be stated as under.
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9 In the month of August 2002, one Tahir Ahmed Khan
(Accused no.1) claiming to be the proprietor of M/s.Makhdoom
Polymers, approached the Bank of India, Saki Naka Branch for
grant of a term loan of Rs.22.50 lakhs for purchasing extruder
machinery, and working capital limit of Rs.20 lakhs. It was
represented that the machinery was to be installed in the premises
of the said accused situate at Gala No.4, Shriguppi Industrial
Estate, Saki Vihar Road, Saki Naka, Mumbai - 400072. One Al-
Abid Ahmed Khan - brother of the said Tahir Khan, and one Imam
Hussain Pathan offered themselves as the guarantors in respect of
the loan obtained by the said Tahir Ahmed Khan. After completing
the formalities, such as submission of project report, acceptance of
the guarantee given by the guarantors etc, loan of Rs.42.50 lakhs
was sanctioned in favour of the said Tahir Ahmed Khan. Later on,
the Bank realized that Tahir Ahmed Khan had played a fraud upon
the bank, and had obtained the loan fraudently by giving false
information, and by providing false documents. Among other
things, it was realized that a pay order issued by the Bank of India
in favour of M/s.M.R.Engineering Works, whose quotation had
been submitted by Tahir Ahmed Khan, was actually got encashed
by the said Tahir Khan himself, and that, a bogus account had
been opened by him in the said name.
10 It is not necessary to go deeper into the matter, so far
as the case against the said Tahir Khan is concerned, inasmuch as
there clearly exists a prima
facie case of the alleged offences
against him.
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11 What is the case against the applicant may now be
examined. The applicant is a professional Chartered Accountant.
The allegation against him is that he had filed the Income Tax
Returns of the said Al-Abid Ahmed Khan - brother of Tahir Ahmed
Khan - in which false particulars and false information, was given.
It may be recalled that the said Al-Abid Ahmed Khan had stood as
one of the guarantors for the loan that was given to Tahir Khan by
the bank, and while standing as a guarantor, the said Al-Abid
Ahmed Khan had furnished the copies of his Income tax returns
for three consecutive years, and some other documents, to the
bank. That, in the course of investigation, it transpired that Al-
Abid Ahmed Khan did not have any source of income, and that he
was falsely shown as owner of certain land and machinery worth
Rs.Three lakhs. That, the applicant being the Chartered Account
of the said Al-Abid Khan, had prepared the Income tax returns of
the said Al-Abid Khan without the same being supported by any
documents.
12 Thus, in short, the case is thus :-
Loan was obtained by Tahir Ahmed Khan from the
bank on giving false information, and by submitting forged
documents. One of the guarantors offered by him in respect of the
repayment of the loan, was his own brother Al-Abid Ahmed Khan.
Al-Abid Ahmed Khan had submitted certain documents to the bank
including his Income tax returns for three years. These returns
had been prepared by the applicant without any supporting
documents. Except this, there is no other allegation against the
applicant.
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13 According to the Investigating Agency, this shows that
the applicant shared the common intention with Al-Abid Khan
and Tahir Khan of cheating the bank.
14 Mr.Dave, the learned counsel for the petitioner
submitted that it was not obligatory at all for the petitioner to
have verified the Income tax returns of the said Al-Abid Khan by
asking him to produce documents in support thereof. He
submitted that such a necessity would arise only in the event of
the income of the assessee being above Rs.1,20,000/-, and in
support of this contention, he sought to draw my attention to
section 44AA of the Income tax Act. In my opinion, even this is
not necessary. It is because as per the Income tax returns certified
by the applicant, the income of Al-Abid Ahmed Khan in a
particular financial year, is about Rs.71,000/-. Al-Abid Khan has
paid a meagre income tax of Rs.4,000/-. He was offering himself
as a guarantor for Tahir Ahmed Khan who was seeking, totally, a
loan of Rs.42,50,000/- from the bank. Thus, it is not that a very
high and inflated income of the said Al-Abid Ahmed Khan was
shown by the applicant. As a matter of fact, that a person whose
annual income was about Rs.75,000/- per month, should be
accepted as a guarantor for the repayment of the loan of more
than Rs.40,00,000/- by the bank, is itself suspicious, and the
Investigating Agency has not investigated into this aspect of the
matter.
15 It appears that Ahmed Khan projected himself as the
owner of land and machinery worth about Rs.3,00,000/- (Three
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lakhs) though actually he did not own any such land or machinery.
The learned APP has drawn my attention to the observations made
by the learned Addl. Sessions Judge, dismissing the revision
application filed by the applicant. In paragraph no.12 of the
impugned order, the learned Addl. Sessions Judge has observed as
follows :-
"As per the prosecution, the applicant
had certified a genuine document showing Al-Abid
as owner of land and machinery worth Rs.3,00,000/-,
while in fact, he did not own a single pie".
16 Mr.Dave contended that, that is not the prosecution
case at all. I have therefore examined the charge-sheet in that
context. It is not the case of the Investigating Agency that the
applicant had issued, or given any certificate showing that the said
Al-Abid Ahmed Khan was the owner of a certain land and
machinery worth Rs.3,00,000/-. A copy of this certificate is found
in the charge-sheet, and it does not show any certification by the
applicant at all. In the affidavit in reply also, such a stand is not
taken and what is said is that the applicant had helped the said Al-
Abid Ahmed Khan 'in preparing bogus and fabricated Income Tax
Returns'. Thus, the learned Addl. Sessions Judge has read
something which is actually not there in the charge-sheet.
17 There is no allegation that the applicant has received
any part of the money which was obtained by the said Tahir
Ahmed Khan.
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18 A feeble attempt is made by the learned APP to
contend that the applicant was rendering professional services to
the main accused Tahir Ahmed Khan also. She has also placed
reliance on the material in the charge-sheet which says that certain
documents pertaining to Tahir Ahmed Khan were also recovered
from the office of the applicant. In my opinion, simply because the
applicant might have rendered his professional services to Tahir
Ahmed Khan, the applicant cannot be said to be involved in the
offences committed by Tahir Ahmed Khan. Moreover, the case
against the applicant is not based on his alleged association with
the said Tahir Ahmed Khan. The case against him is that he
helped Al-Abid Ahmed Khan in preparing bogus and fabricated
income tax returns. The income tax returns were used by Al-Abid
Ahmed Khan, to have himself accepted as a guarantor for his
brother Tahir Ahmed Khan who wanted to, dishonestly, obtain a
loan and cheat the bank.
19 There is no material to show the connection of the
applicant with the alleged offences particularly when there is no
allegation that the applicant had received any part of the money
which was obtained by the said Tahir Ahmed Khan by committing
the offences in question. This was a case where the charge against
the applicant is ought to have been held as groundless.
20 The order passed by the Magistrate as also that passed
by the Addl. Sessions Judge in revision are patently illegal and
contrary to law. They are, therefore, required to be interfered
with, in the constitutional jurisdiction of this Court.
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21 The impugned orders are set aside.
22 The petitioner shall stand discharged.
23 The learned Magistrate shall proceed further with the
case in accordance with law.
(ABHAY M.THIPSAY, J)
