Vilas Madhavarao Marathe vs State Of Maharashtra
2021 Latest Caselaw 3370 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                   CRIMINAL WRIT PETITION NO.1291 OF 2020

Vilas Madhavarao Marathe,
Age : 52 years, Occu. Service,
R/o Near Saubhagya Mangal Karyalaya,
Shahada, Taluka Shahada,
District Nandurbar                                                PETITIONER

       VERSUS

The State of Maharashtra                                          RESPONDENT
                                     ----
Mr. Amit S. Savale, Advocate for the Petitioner
Mr. S.W. Mundhe, A.P.P. for the respondent/State
                                     ----

                                    CORAM     :     MANGESH S. PATIL, J.

                JUDGMENT RESERVED ON                :        10.02.2021
                JUDGMENT PRONOUNCED ON              :        23.02.2021


JUDGMENT :

Heard.

2. Rule. The Rule is made returnable forthwith. With the consent

of both the sides, the matter is heard finally at the stage of admission.

3. The petitioner is invoking the powers of this Court under

Articles 226 and 227 of the Constitution of India in assailing the

concurrent orders of the two Courts below, refusing his request to direct an

investigation under Section 156 (3) of the Code of Criminal Procedure

("Cr.P.C.", for short).

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4. The petitioner filed Criminal Misc. Application No. 76/2019 in

the Court of Judicial Magistrate First Class, Shahada with the allegations that

the proposed accused took advantage of his friendship with them. They

dishonestly and fraudulently induced him to periodically invest in a Chit

Fund scheme in aggregate to the tune of Rs.15,30,000/- and refused to

refund it and thus they committed the offences punishable under Sections

405, 406, 420 read with Section 34 of the Indian Penal Code. He also alleged

that like him, few other persons were also similarly cheated and duped.

5. The learned Magistrate, observing that prima facie it was a

dispute of civil nature and that the petitioner himself must be possessing

necessary material to substantiate his allegations about periodical deposit of

the amounts, refused the request to issue direction under Section 156(3) of

the Cr.PC. Not satisfied with the order, the petitioner preferred Criminal

Revision Application No.4/2019 before the Sessions Court under Section 397

of the Cr.P.C. unsuccessfully.

6. The learned Advocate for the petitioner would submit that both

the Courts below have committed a gross illegality in refusing to accept the

innocuous request of the petitioner. Going by the allegations, all the

necessary ingredients for constituting the offences, which are all cognizable,

can be easily made out. Not only the petitioner but even few other persons

have also been similarly duped and it was a fit case where the police

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machinery could have been directed to carry out the investigation and

recover the money. To some extent, though the petitioner may on his own

establish the fact of making periodical payments, as far as recovery of money

is concerned, it is the police machinery alone which would have been able to

do it. Besides, when few other persons are also duped, the police officer

alone would be able to trace them and vouch the fact based on their

statements. Therefore, considering the serious nature of the crime, both the

Courts below should have exercised the discretion vested in them, which they

have refused to do and this Court should intervene in exercise of its

constitutional powers.

7. The learned A.P.P. submits that the two Courts below have taken

a plausible view and have merely refused to issue any direction for

investigation. They have not shut the doors for the petitioner to

independently lead evidence and substantiate his allegations. Therefore,

there is no error or illegality committed by the Courts below and this Court

may not intervene.

8. I have carefully considered the rival submissions. The common

sense and the logic, apart from the wording of Section 156 of the Cr.P.C.,

would require such a power to be exercised by a Magistrate where the

offence is cognizable and grave. The complexity of the modus operandi,

recovery of weapons or property in respect of which the offence is

committed, ability and competence of the person approaching the Magistrate

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to establish all the necessary ingredients constituting the cognizable offences,

etc., could be some such parameters which should regulate the powers of the

Magistrate in directing investigation under Section 156 (3) of the Cr.P.C.

9. Simultaneously, the Magistrate also will have to exercise the

powers under Section 156(3) of the Cr.P.C. bearing in mind the guidelines

laid down by the Supreme Court in the case of Priyanka Shrivastava and

another Vs. State of Uttar Pradesh and others ; (2015) 6 SCC 287, particularly

in paragraph Nos.26 and 27.

10. Going by the allegations being levelled by the petitioner, it is his

case that the proposed accused, taking advantage of his friendship with them,

dishonestly and fraudulently induced him to invest in the Chit Fund scheme

but failed to keep the promise, which prima facie is indicative of the

necessary ingredients for constituting misappropriation, criminal breach of

trust and cheating, apart from the provisions of the Maharashtra Chit Fund

Act, 1974 and/or Prize, Chits and Money Circulation Scheme (Prohibition)

Act.

11. Both the Courts below failed to appreciate all the

aforementioned facts and circumstances and have refused to exercise the

power which the petitioner had called upon them to exercise.

12. Merely observing that the petitioner could have led evidence to

prove his having deposited money periodically, they have overlooked the

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other aspects of material, which could be collected only during investigation

by a police officer under Section 156 of the Cr.P.C. The aspect of recovery of

money has also been ignored, which the petitioner could not have done. Few

other persons are alleged to have been duped in similar fashion and it would

be only for the investigating machinery to verify the fact by recording

statements of these witnesses and collecting material from them. The

petitioner could not have been expected to do all these things.

13. Considering all the aforementioned facts and circumstances, the

two Courts below have grossly erred in not directing the investigation under

Section 156 (3) of the Cr.P.C. and the impugned orders are liable to be

quashed and set aside. It also does not appear from the impugned orders as

to if the two Courts below have borne in mind the principles laid down by the

Supreme Court in the case of Priyanka Shrivastava (supra). Consequently, it

would be appropriate to quash and set aside both the impugned orders and

remit the matter back to the Magistrate for taking decision afresh bearing in

mind all the aforementioned facts and circumstances and the law governing

the field.

14. The Writ Petition is partly allowed. The impugned orders are

quashed and set aside. Criminal Misc. Application No.76/2019 filed by the

petitioner is remitted back to the concerned Magistrate for decision afresh.

15. The Rule is made absolute in above terms.

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16. It is made clear that the observations made hereinabove are

confined to the decision of the present Writ Petition and neither the Trial

Court nor the Investigating Officer shall feel influenced by those.

[MANGESH S. PATIL] JUDGE

npj/CRIWP1291-2020