Naresh Karulal Jain vs The State Of Maharashtra And Anr
2016 Latest Caselaw 5190 Bom

           rpa                                 1/8                                  wp-2678-15j.doc


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION




                                                                                 
                      CRIMINAL WRIT PETITION NO.2678 OF 2015




                                                         
          Naresh Karulal Jain
          Age - 41 years,




                                                        
          Occupation - Business,
          R/at. 34, Haidavkar Wadi No.2,
          Ash Lane, Gokhale Road,




                                       
          Dadar (W), Mumbai - 400 028.                                      .. Petitioner

                   V/s.
                             
          1)       The State of Maharashtra
                            
                   Through Sr. Inspector of Police
                   Dadar Police Station, Bombay.
      


          2)       Mohanlal Bhawarlal Jain
   



                   Aged about 44 years,
                   Occupation - Business,
                   R/o. Room No.30, Kalash Building,





                   Senapati Bapat Road,
                   Opp. Tilak Bhavan,
                   Dadar (W), Mumbai - 400 028                              .. Respondents





                                              ......
          Mr. A.H. Ponda i/b. Mr. J. B. Mishra, Advocate for the Petitioner.
          Mr. J. P. Yagnik, APP for Respondent - State.
          Mr. M.M. Khan, Advocate for Respondent No.2.
                                             ......




    ::: Uploaded on - 06/09/2016                         ::: Downloaded on - 07/09/2016 00:46:51 :::
            rpa                                    2/8                                  wp-2678-15j.doc


                                   CORAM : NARESH H. PATIL AND
                                               PRAKASH D. NAIK, JJ.




                                                                                    
                                                            
                                   RESERVED ON                    : AUGUST 8, 2016.
                                   PRONOUNCED ON : SEPTEMBER 6, 2016.




                                                           
          JUDGMENT (Per PRAKASH D. NAIK, J.) :

Heard both the parties. Petitioner has preferred this

petition under ig Article 226 of the Constitution of India

challenging the criminal proceedings in C.C.No.76/SW/2015

along with the order dated 1st June, 2015 passed by the learned

Metropolitan Magistrate 5th Court, Dadar, Mumbai therein and

M.E.C.R. No.184 of 2015 registered with Dadar Police Station,

Mumbai.

2 Petitioner has been impleaded as an accused in the

complaint filed by respondent no.2. The said complaint was filed

before the Court of Metropolitan Magistrate 5th Court at Dadar

which was numbered as C.C.No.76/SW/2015. The complaint was

filed alleging the offences punishable under Section 420, 406,

323 and 506 - II of the Indian Penal Code (for short "IPC").

            rpa                                   3/8                                  wp-2678-15j.doc


          3                 The Magistrate before whom the aforesaid complaint




                                                                                   

was filed directed that the complaint be sent to Dadar Police

Station for investigation by police under Section 156(3) of the

Code of Criminal Procedure (for short "Cr.P.C.") vide order dated

1st June, 2015. Pursuant to the said order, First Information

Report (for short "FIR") was registered vide M.E.C.R. No.184 of

2015 on 1st June, 2015 for the offences punishable under Section

420, 406, 323, 506-II of the IPC. Thereafter the investigation

commenced.

4 Brief facts of the case of the complainant are as

follows:

The complainant is a money lender having license to

conduct money lending business. He used to advance loan to

needy people on security of gold by charging nominal and

prescribed interest rate. He issued receipt by making entry of

the principle loan amount. Accused approached the complainant

and introduced various attractive schemes of business. The

accused deceived the complainant by making false representation

that he has a money lender having sound financial position and

good contact with banking institutions and financial companies.

rpa 4/8 wp-2678-15j.doc

Accused induced the complainant to deliver gold ornaments

which were collected from needy people. Complainant parted

with the gold packets as a security. Complainant had obtained

loan from the accused and handed over several gold packets to

the accused. The complainant repaid the amount to the accused.

However, the accused started demanding more money and

refused to hand over the entire gold packets. The accused

retained about 1300 gold packets without any reason. It is the

claim of the accused that complainant had not repaid the entire

amount. The accused threatened the complainant that if he does

not pay an amount of Rs.2.5 crores to him he would charge

another interest rate and will recover the amount from 1300 gold

packets. The accused threatened complainant of dire

consequences for not fulfilling his demands. The accused

misappropriated the said property. Complainant approached the

police, however, cognizance of his complaint was not taken.

Hence, he filed private complaint.

5 Petitioner has challenged the aforesaid proceedings

as well as the orders referred to herein above. It is submitted by

the advocate for the petitioner that the dispute is purely of a civil

nature and no criminal proceedings ought to have been initiated

rpa 5/8 wp-2678-15j.doc

against the petitioner. It is submitted that the complaint does not

satisfy the required ingredients for the alleged offences. It is also

submitted that there was no intention to deceive right from the

inception and therefore the offence of cheating is not made out.

It is further submitted that the Magistrate has not applied his

mind while passing the order directing investigation. It was also

submitted that the complainant had not returned the entire loan

amount and 1300 gold packets were not released by the

petitioner as the loan amount due thereon was payable by the

complainant with interest. However, on making the payment of

loan amount, the gold packets were released from time to time

and thereafter retention of the packet through out to non

payment by the complainant.

6 Learned advocate for the complainant/respondent

no.2 has submitted that prima facie the complaint makes out an

offence. Magistrate has passed a reasoned order while directing

the police machinery to investigate the complaint in exercise of

powers under Section 156(3) of the Cr.P.C. It is submitted that

pursuant to that FIR has been registered and investigation had

commenced. It is submitted that police machinery should be

allowed to investigate the said crime as the same should not be

rpa 6/8 wp-2678-15j.doc

scuttled. The contentions of the petitioner were disputed by the

respondent no.2. During the course of hearing, respondent no.2

filed an affidavit-in-reply of about more than 200 pages placing

on record several documents. In the said reply, respondent no.2

has controverted the submissions of the petitioners. Several

documents relating to the transactions were also placed on

record. The complainant has disputed the genuineness of

documents relied by the petitioner/accused. Petitioner has filed a

rejoinder of about 300 pages countering the allegations in the

complaint and the reply filed by complainant. Several documents

are also placed on record.

          7                 We have perused the complaint and the other
      


          documents           on   record.   The     Magistrate                has   directed     any
   

investigation vide order dated 1st June, 2015 and in pursuant to

that an FIR registered. In the orders passed by the Magistrate, it

has been observed that the police did not take cognizance of the

complaint filed by the complainant. It is further observed that,

considering the facts and circumstances of the case, the nature of

offence, amount involved in it, it would be proper to send the

matter to the police for investigation in order to bring on record

the actual facts. The statement of complainant was thereafter

rpa 7/8 wp-2678-15j.doc

recorded on 5th June, 2015 and M.E.C.R. was registered.

Submissions of the petitioner that no offence is made out and

that the dispute is of civil nature are without merits. Both the

parties have placed voluminous documents on record in support

of their claim, however, it is not possible to adjudicate the

submissions made by the parties and appropriate the documents

placed by the parties at this stage. Petitioner/accused has relied

upon several documents which would be at the most can be

considered as his defence. The Magistrate has issued a direction

on the basis of prima facie observations that the complaint

requires investigation and thereby directed police to investigate

the complaint vide Section 156(3) of Cr.P.C. The police machinery

should be allowed to carry out the investigation. The defence of

the accused cannot be appreciated at this stage. The contentions

raised in the petition and the rejoinder of the petitioner cannot

be taken into consideration as the same are based on disputed

questions of facts. The investigation should be not be stopped

and the police should be allowed to complete the same and

submit appropriate report.

8 It would be open for the police machinery to come to

appropriate decision after completing the investigation. It would

rpa 8/8 wp-2678-15j.doc

be difficult to give any finding at this stage that the offences are

not made out. However, in the interest of the petitioner/accused

we make it clear that the observations made herein are only for

adjudicating the prayers made in the present petition. We have

not expressed anything on the merits of the investigation which

would be carried out by the police. All the issues on merits are

kept open. We are not inclined to entertain this petition. Hence

we pass the following order:

                              ig        :: O R D E R ::
                            
                  (i)       Writ Petition stands dismissed.

                  (ii)      No order as to costs.
      


                 (PRAKASH D. NAIK, J.)                  (NARESH H. PATIL, J.)