Smt. Sindhu Wd/O Shyam Ghate And ... vs State Of Maharashtra, Thr. ...
2017 Latest Caselaw 9187 Bom

                                                   1               J-WP-734-16.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                       NAGPUR BENCH, NAGPUR

                   CRIMINAL WRIT PETITION NO.734/2016

 1. Smt.Sindhu wd/o Shyam Ghate,
    Aged about : 57 years,
    Occupation : Service,
    Plot No.17, Sarvodaya Nagar,
    Behind BSNL Telephone Exchange,
    Khamla, Nagpur.

 2. Surendra s/o Gayaprasad Sharma,
    Aged about : 48 years,
    Occupation : LIC Agent,
    Buddha Vihar Marg,
    Gokulpeth, Nagpur-440010.

 3. Durgaprasad s/o Ishwardin Sharma,
    Aged about : 48 years,
    Occupation : Business,
    Plot No.505, Near Hanuman Mandir,
    Gokulpeth, Nagpur-440010.

 4. Satish s/o Ganeshprasad Sharma,
    Aged about : 57 years,
    Occupation : Service,
    R/o Sitabai Nagar,
    Nagpur-440025.                                      ..... PETITIONERS

                               ...V E R S U S...

 1. State of Maharashtra,
    Ministry of Home,
    Mantralaya, Mumbai-400032,
    Through its Secretary.

 2. Commissioner of Police,
    Nagpur.

 3. Deputy Commissioner of Police,
    Economic Offence Wing,
    Crime Branch, 4th Floor,
    Administrative Building,
    Civil Lines, Nagpur.




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 4. Police Station Officer,
    Ambazari Police Station,
    Nagpur.

 5. Jayams Information Services Private
    Ltd., having Head Office at 3rd Floor,
    Sitaram Smruti,
    West High Court Road,
    Dharampeth, Nagpur-440010
    Through its Director 
    Shri Hari Janardhan Iyer.

 6. Shri Ravi s/o Janardhan Iyer,
    Aged : Major,
    R/o Green Valley Apartment,
    2nd Floor, Plot No.202,
    Katol Road, Nagpur.

 7. Shri Hari s/o Janardhan Iyer,
    Director of Jayams Information
    Services Private Ltd.,
    R/o Flat No.302, OAK ETERNIA,
    Netaji Society, Plot No.55,
    Friends Colony,
    Near Nisarg Lawn, Nagpur.                                ... RESPONDENTS

 -------------------------------------------------------------------------------------------
 Shri S. S. Sharma / M. S. Sharma, Advocates for the petitioners.
 Shri V. A. Thakare, APP for respondent Nos.1 to 4.
 Shri P. K. Sathianathan, Advocate for respondent Nos.5 and 7.
 Shri R. H. Rawlani, Advocate for respondent No.6.
 -------------------------------------------------------------------------------------------

                                CORAM:-    
                                            PRASANNA B. VARALE &
                                             ARUN D. UPADHYE, JJ.

DATED :

30/11/2017.

JUDGMENT : (PER ARUN D. UPADHYE, J.)

1. By this petition, the petitioners have prayed to issue

appropriate writ, order or direction, thereby directing the respondent

Nos.1 to 4 to file additional charge sheet against respondent Nos.5 to 7

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for an offence punishable under the provisions of Section 3 of the

Maharashtra Protection of Interest of Depositors (In Financial

Establishments) Act, 1999 and action be taken against respondent Nos.5

to 7 under the provisions of the said Act.

2. The petitioners have also sought declaration by

appropriate writ or order that the action on the part of respondent

Nos.1 to 4 in not taking action against respondent Nos.5 to 7 under the

provisions of Section 3 of the Maharashtra Protection of Interest of

Depositors (In Financial Establishments) Act, 1999 is illegal. The brief

facts of the case are as under :-

3. The petitioners have contended that the respondent

No.5 is a Company constituted under the Companies Act of which

respondent Nos.6 and 7 were the Directors. It is the case of the

petitioners that respondent Nos.6 and 7 approached to them for giving

financial assistance by way of giving deposits / hand-loan for running

the business of the company.

4. They have contended that petitioner No.1 had given

total amount of Rs.34,50,000/- (Rs. Thirty four lakhs fifty thousand

only) to respondent Nos.5 and 6 as a hand-loan, from time to time. The

respondent Nos.6 and 7 on their personal capacity and on behalf of

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company i.e. respondent No.5 acknowledged their liabilities.

5. The petitioner No.2 has also given amount of

Rs.75,000/- (Rs. Seventy five thousand only) on 31/08/2012 to

respondent Nos.5 to 7 and they have acknowledged the receipt of the

same. The respondent No.6 has signed the receipt on behalf of

respondent No.5 - Company as its Authorized Signatory. According to

them, respondent No.6 has given a Cheque of Rs.1,50,000/- (Rs.one

lakh fifty thousand only) to the petitioner No.2 vide Cheque No.158951

dated 12/01/2014 for Rs.1,50,000/- drawn on Union Bank of India,

Gokulpeth, Nagpur. However, the said cheque could not be cashed for

the reason "Exceeds arrangement". The petitioner No.2, therefore, has

filed case under Section 138 of the Negotiable Instruments Act before

the Judicial Magistrate, First Class, Nagpur. The petitioner No.2 has also

filed a civil suit against the respondent No.5 before the Civil Court,

Nagpur.

6. The petitioner No.3 has also given an amount of

Rs.2,00,000/- (Rs.Two lakhs only) to the respondent Nos.5 to 7 and

they have acknowledged the receipt. The respondent Nos.6 to 7 issued a

cheque for amount of Rs.2,54,000/- (Rs.Two lakhs fifty four thousand

only) bearing Cheque No.000011 drawn on HDFC Bank in the name of

petitioner No.3. The respondent Nos.5 to 7 requested that the said due

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date be extended and they will positively repay the amount before 31 st

March, 2015 along with interest @ 24% per annum.

7. The petitioner No.4 has also given an amount of

Rs.1,50,000/- (Rs.One lakh fifty thousand only) to the respondent

Nos.5 to 7 as a hand-loan / deposit. The respondent Nos.5 to 7 have

acknowledged the same by issuing receipt. The respondent Nos.6 and 7,

however, issued a cheque for Rs.2,04,000/- (Rs.Two lakhs four

thousand only) drawn on Union Bank of India, Gokulpeth, Nagpur. The

petitioner No.4 has also filed a civil suit against respondent Nos.5 to 7

before the Civil Court, Nagpur. The petitioners have contended that

they came to know that respondent Nos.5 to 7 have taken huge amount

from several persons as a deposit and defrauded them. The petitioners

along with others have made a report to the Crime Branch of the

Nagpur Police. According to them, offence was registered against

respondent Nos.6 and 7 under Sections 406, 420 r/w Section 34 of the

Indian Penal Code and Section 3 of the Maharashtra Protection of

Interest of Depositors (In Financial Establishments) Act, 1999 in the

Police Station, Ambazari, Nagpur vide FIR No.26/2015 dated

23/01/2015. According to them after investigation, the police

authorities filed a charge sheet i.e. final report under Section 173 of the

Code of Criminal Procedure on 17/08/2015 against respondent Nos.6

and 7 for the offence punishable under Sections 406, 420, r/w Section

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34 of the IPC and thereby, dropped the offence punishable under

Section 3 of the Maharashtra Protection of Interest of Depositors (In

Financial Establishments) Act, 1999. According to them, respondent

Nos.1 to 3, in collusion with the respondent Nos.5 to 7, have

deliberately dropped the offence punishable under Section 3 of the

Maharashtra Protection of Interest of Depositors (In Financial

Establishments) Act, 1999. According to them, the police authorities are

protecting the respondent Nos.5 to 7 and have deliberately dropped the

offence under the said Act. It is their case that the accused persons are

required to be punished under the said Act and their properties are also

required to be confiscated. However, the action on the part of

respondent Nos.1 to 4 is not taken under the said Act, is patently illegal.

Hence, this petition.

8. The respondent No.3 has filed affidavit-in-reply and

opposed the petition. According to respondent No.3 initially, nine

persons have lodged a joint complaint with the Crime Branch, Nagpur

against the respondent Nos.4 to 7. After enquiry, on the basis of

statement of Surendra Sharma, FIR was lodged on 23/01/2015 vide

Crime No.26/2015 for the offence punishable under Sections 406, 420

r/w Section 34 of the IPC at Ambazari Police Station, Nagpur. After a

detailed enquiry, it was found that there are total eleven persons, who

have invested with the accused persons in the company in the name of

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Jayams Information Services Pvt. Ltd. and out of that four persons, they

received amount. According to this respondent, the investigation is

completed and charge sheet came to be filed on 17/08/2015 and at that

time, Section 3 of the Maharashtra Protection of Interest of Depositors

(In Financial Establishments) Act, 1999 came to be deleted. As the

company run by the accused persons, is not Financial Establishment as

defined under the said Act. Lastly, it is submitted that the Investigation

Agency has rightly deleted the provisions of Section 3 of the said Act

and there is no substance in the petition filed by the petitioners and

same is devoid of merit and petition be dismissed.

9. The respondent Nos.5 and 7 have filed affidavit-in-reply

and objected this petition. According to them, petitioners have alternate

remedy under Section 216 of the Cr.P.C. for alternation or addition of

charge. However, no such application is filed by the petitioners in the

Trial Court and therefore, the present writ petition is not maintainable

and it be dismissed. The respondent No.6 has also taken similar stand

by filing separate reply. These respondents have also filed additional

reply and prayed for dismissal of the writ petition.

10. We have heard respective sides at length. Shri Sharma,

learned counsel for the petitioners has vehemently submitted that

though initially, offence was registered under Section 3 of the

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Maharashtra Protection of Interest of Depositors (In Financial

Establishments) Act, 1999, but subsequently, the said Section is deleted

while filing charge sheet before the Court. He submitted that the

accused persons have committed offence under Section 3 of the

Maharashtra Protection of Interest of Depositors (In Financial

Establishments) Act, 1999. However, charge sheet only refers Section

406, 420, r/w Section 34 of the IPC. He submitted that as per the

provisions of Section 2 (c), which deals with the definition of deposit as

well as Section 2 (d), the term defining the Financial Establishments.

The definition of 2 (c) reads as under :-

"2 (c) : "deposit" includes and shall be deemed always to have included any receipt of money or acceptance of any valuable commodity by any Financial Establishment to be returned after a specified period or otherwise, either in cash or in kind or in the form of a specified service with or without any benefit in the form of interest, bonus, profit or in any other form, but does not include."

(i) to (vii) : -----

The definition of 2 (d) reads as under :-

"2 (d) : "Financial Establishment" means any person accepting deposit under any scheme or arrangement or in any other manner but does not include a corporation or a co-operative society owned or controlled by any State Government or the Central Government or a banking company defined under clause (c) of Section 5 of the Banking Regulation Act, 1949 (10 of 1949)."

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The offence under Section 3 of the said Act is attracted.

He also pointed out the receipts and acknowledgments made by the

accused persons and submitted that the police be directed to file

additional charge for the offence punishable under Section 3 of the

MPID Act, 1999.

11. Shri V. A. Thakare, learned APP for respondent Nos. 1

to 4 has submitted that though offence was registered under Section 3

of the MPID Act, 1999, but after investigation, it was found that the

provisions of Section 3 of the MPID Act are not attracted and therefore,

the police have rightly not included the said Section at the time of filing

of charge sheet. The petitioners have remedy to argue the case at the

time of framing of charge and therefore, no such directions be issued.

The prayer of the petitioners for filing of additional charge sheet,

cannot be considered. He, therefore, prayed that the petition be

dismissed.

12. Shri Rawlani, learned counsel for respondent No.6 has

submitted that the alternative remedy is available to the petitioners to

agitate the grounds before the Magistrate for framing of the charge

under Section 3 of the MPID Act, if it is attracted. The petitioners

cannot invoke the jurisdiction under Section 226 of the Constitution of

India for the said Act. The petition is devoid of any merit and it be

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dismissed.

13. Shri Sathianathan, learned counsel for respondent

Nos.5 and 7 has submitted that if in the evidence, any offence is made

out, the charge can be altered and framed, therefore, the petition be

dismissed.

14. Considering the submission of respective sides, we have

gone through the contents of the petition as well as reply filed on record

and also documents filed by the parties. It appears that the offence was

registered on 23/01/2015 under Section 406, 420 r/w Section 34 of the

IPC and Section 3 of the MPID Act on the complaint of Surendra

Sharma. The police investigated the case and filed charge sheet on

17/08/2015 for the offence punishable under Sections 406, 420 r/w

Section 34 of the IPC. The only grievance made by the petitioners that

the offence punishable under Section 3 of the MPID Act was registered,

however, at the time of final report, same was not included in the

charge sheet and therefore, sought directions under Section 226 of the

Constitution of India directing the police officials to file additional

charge sheet for the said offence. It is to be noted that it is not the case

of the petitioners that police have not properly investigated the case and

sought further investigation in the matter. The grievance of the

petitioners is of not adding Section 3 of the MPID Act in the charge

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sheet. It is to be noted that the remedy to the petitioners is available to

agitate the point at the time of framing of charge. The charge sheet is

filed against the accused persons under Sections 406, 420, r/w Section

34 of the IPC.

15. The case is to be tried by the Magistrate, as per the

Chapter XIX of the Cr.P.C. The Section 240 of Cr.P.C. runs as under :-

240. Framing of charge - (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.

The petitioners have not availed the remedy before the

Trial Court and if at all the charge under Section 3 of the MPID Act is

made out, they can point out to the Court for framing of the charge

under the said Section. Moreover, the respondents have also pointed

out that there is another provision under Section 216 of the Cr.P.C. that

the Court may alter or add to any charge at any time before the

Judgment is pronounced. Shri Sathianathan, learned counsel put forth

submission on behalf of respondent Nos.5 and 7 to that effect, appears

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to be forceful. Shri Rawlani, learned counsel has rightly pointed out

that there is alternative remedy available to the petitioners for the same

relief and without availing the same, the petitioners have directly

approached this Court under Article 226 of the Constitution of India for

direction.

16. Shri Rawlani, learned counsel for the respondent no.6

has relied upon the ruling in the case of Anuran Rastogi and others

Vrs. State of U.P. and another, reported in 2007 Criminal 377.

In the above ruling, the Hon'ble Apex Court has held

that the Magistrate is not bound to take cognizance of offence indicated

in the police report, but it should be seen at the stage of framing of

charge.

In the above ruling, it is held that at the time of framing

of charge, the Magistrate could consider that as to what are the offences

for which the accused persons have to be tried. Having held so, the

Hon'ble Supreme Court could not have found fault with Magistrate's

observation with similar effect.

17. Considering the ratio laid down in the above ruling, we

are of the considered view that it is for the Magistrate to consider the

offence made out against the accused persons and frame charge

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accordingly and therefore, any observation made in this petition will

certainly lead to contrary conclusion.

18. The submission put forth on behalf of the petitioners

that the police have wrongly not included Section 3 of the MPID Act,

cannot be accepted. In the petition, though allegations are made against

the respondent Nos.1 to 4 that in collusion with respondent Nos.5 to 7,

they have dropped Section 3 of the MPID Act at the time of filing of

charge sheet, but no material is placed on record to that effect. The

submission put forth by the learned counsel for the petitioners that the

case of the petitioners is covered under the provisions of Section 3 of

the MPID Act and more particularly, under Sections 2 (c) and 2(d) of

the said Act, cannot be considered, at this stage. It is for the petitioners

to satisfy the concerned Court while framing of charge against the

accused persons for the said Section.

19. Petition filed by the petitioners, therefore, is devoid of

any merit and liable to be dismissed and accordingly dismissed.

                      JUDGE                                    JUDGE

 Choulwar