Vijay Shrinivasrao Somanchi vs The State Of Maharashtra
2023 Latest Caselaw 11241 Bom

2023:BHC-AS:33298-DB

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                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION
                                     WRIT PETITION NO. 1241 OF 2007

                Vijay Shrinivasrao Somanchi, adult,
                Age 48, Indian Inhabitant residing at A-303,
                Golden Orchid-2, Sunder Nagar,
                Kalina, Santacruz (E).                                    ... Petitioner.

                       V/s.
                State of Maharashtra (through DCB CID).                   ... Respondent.

                Mr.Girish Kulkarni, Senior Advocate i/by Mr.Omkar Ghag, Mr.K.N.
                Pandey, for Petitioner.
                Mr. Ajay Patil, APP for Respondents-State.

                                            CORAM : A.S. GADKARI &
                                                    SHARMILA U. DESHMUKH, JJ.

Reserved on : 12th October, 2023.

Pronounced on : 2nd November, 2023.

JUDGMENT : (Per SHARMILA U. DESHMUKH, J.)

1. By this Petition, the Petitioner challenges the Order dated 8 th

March, 2007 passed by learned Sessions Judge in Revision Application

Stamp No.242 of 2007, upholding the Order dated 25 th January, 2007

passed by the learned Additional Chief Metropolitan Magistrate, 37 th

Court, Esplanade, Mumbai in C.C.No.179/PW/2005, rejecting the

Petitioner's application for discharge.

2. The present Petition was directed to be tagged along with

Criminal Writ Petition No.1898 of 2004, which sought the relief of

quashing of the same crime qua the Petitioner therein. Vide Order dated

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25th September, 2008, this Court directed the present petition to be

heard alongwith Criminal Writ Petition No.1898 of 2004. By Order

dated 7th January, 2020, this Court considered the submission that the

matter needs to be heard by the Single Judge and kept the said

contention open. Today, there is no objection raised as regards the

matter to be placed before the Single Judge. Today we have heard Writ

Petition No.1898 of 2004 and as such have taken up this Petition also for

hearing.

3. L.A.C No 12 of 2204 came to be registered with D.C.B, C.I.D.,

Unit IX, Bandra and CR No.37 of 2004 came to be registered with Worli

Police Station for the alleged offences under Section 420, 487 and 120-B

of Indian Penal Code, 1860 read with Sections 4, 20(1), 25(k), 20(a) of

the Indian Telegraph Act. The crime came to be registered at the

instance of the Senior Vigilance Officer of VSNL-Shri Dhirendrakumar

Sinha. It is alleged that, on 11th February, 2004, on the basis of

information received, the police from Crime Branch Unit IX, Bandra

alongwith the Vigilance Officers of VSNL raided the premises of Net-4

(India) Pvt. Ltd. situated at Gala No.210, Shah & Nahar Industrial

Estate, Worli Naka, Worli, Mumbai. The raid unearthed an illegal

telephone exchange being operated in the premises. A panchanama was

drawn and the equipments utilised for operating the illegal telephone

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exchange were seized. That, the Petitioner was present in the premises

at the time of the raid and was found to be operating the illegal

telephone exchange. It is alleged that, upon inquiry with the Petitioner,

it was revealed that, the telephone exchange was operated by Echovox

(I) Pvt. Ltd. in the premises of Net-4 (India) Pvt. Ltd., under the orders

of Mr. Jasjit Sohoni, the owner of Net-4 (India). After completion of

investigation, final report under Section 173(2) of Cr.P.C was filed. An

application for discharge was preferred in C.C. No.179/PW/2005 which

came to be rejected by the learned Additional Chief Metropolitan

Magistrate, 37th Court, Esplanade, Mumbai by Order dated 25 th January,

2007, as against which the revision filed came to be dismissed vide

Order dated 8th March, 2007.

4. Heard Mr.Girish Kulkarni, learned Senior Advocate for the

Petitioner and Mr. Ajay Patil, learned APP for Respondent-State.

5. Mr. Kulkarni, learned Senior Advocate for the Petitioner

submits that, except the presence of the Petitioner at the time of the

raid, there is no incriminating material found against the present

Petitioner. He would submit that, the admitted position is that, the

Petitioner was the employee of Net-4 (India) Pvt. Ltd. He points out the

Order of the Magistrate dated 25th January, 2007, discharging Mr. Jasjit

Sohoni CEO of Net-4 (India) Pvt. Ltd. and would submit that, there is

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specific finding in the Order discharging Mr.Jasjit Sohoni that the

employees of Net-4 (India) Pvt. Ltd. did not know about the illegal

unauthorised telephone network. He would submit that, there is no

material to demonstrate that any of extortion calls were made by the

Petitioner or at the behest of the Petitioner and hence the offence under

Section 387 of the IPC is prima facie not made out. He would further

submit that, the impugned Orders do not consider the fact that, the

Managing Director and the CEO of Net-4 (India) Pvt. Ltd having been

discharged, the Petitioner who was admittedly an employee could not be

prosecuted.

6. Mr. Patil, learned APP for the Respondent-State points out the

Affidavit dated 3rd October, 2007 filed by Shri Mahesh R. Tawade, PSI,

attached to D.C.B., C.I.D., Unit IX, Mumbai. It is stated in the Affidavit

that, as the investigation was at the preliminary stage, the Petitioner was

not shown as accused in respect of CR No.37 of 2004. Learned APP

would submit that, at the time of the raid, the Petitioner was found at

the premises and he had revealed that, the equipments were owned by

Echovox (India) Pvt. Ltd and were being operated from the premises of

Net-4 (India) Pvt. Ltd. According to the learned APP, in view of the

knowledge of the Petitioner about the conduct of the business, it is

evident that the Petitioner had the knowledge of the business being

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carried out illegally.

7. We have considered the submissions and have perused the

record. In recent decision of the Apex Court in the case of State of

Gujarat vs Dilipsinh Kishorsinh Rao reported in 2023 SCC OnLine SC

1294, the Apex Court held that, it is settled principle of law that, at the

stage of considering the application for discharge, the Court must

proceed on the assumption that the material that has been brought on

record by the prosecution is true and evaluate the material to determine

that the facts emerging from the material taken at its face value

discloses the existence of ingredients necessary of the offence alleged.

8. In the background of settled principles of law, if the Order

dated 25th January, 2007 rejecting the Petitioner's application for

discharge is perused, the reason given for rejection of the application

was that the Petitioner was present at the premises where the illegal

telephone exchange was found running and the articles were seized in

his presence. While adjudicating the discharge application, the exercise

contemplated is evaluation of the material collected during investigation

to ascertain whether the material taken at its face value discloses the

offence alleged qua the Petitioner. We may add that no roving inquiry

into the evidence is required at the stage of discharge. In the instant

case, despite the availability of the statements of witnesses recorded

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during the investigation, the same has not been considered by the

learned Magistrate. On the solitary ground of presence of the Petitioner

at the time of the raid, the Magistrate has declined to discharge the

Petitioner.

9. During investigation the statement of the employees of Net-4

(India) Pvt. Ltd. were recorded. Darshan Desai-Supervisor in the

Engineering Department has stated that, pursuant to the orders received

from the Pune office of Net-4 (India) Pvt. Ltd., David of Echovox

Company was permitted to install the equipments in their data centre.

That he had supplied the power to the machines and thereafter, David

has started the system from his own laptop using the internet services

provided by Net-4 (India) Pvt. Ltd. That pursuant to the order given by

the Delhi Office of Net-4 (India) Pvt. Ltd., ISD facility was made

available to Echovox (India) Pvt. Ltd. That upon receiving order from

their Pune office, the electric supply, anti-virus, internet code wire etc

was connected to the machines.

10. Rajesh Mudner, Regional Controller Accounts and Finance of

Net-4 (India) Pvt. Ltd. has stated that, order was received from their

Pune office to assist David and Cloud of Echovox (India) Pvt. Ltd. for

installation of the machines and pursuant thereto the Petitioner and

Darshan had made arrangements for the same. That they were directed

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not to handle the operation of the machine and in event of any

malfunctioning, the directions would be issued by Delhi Office.

11. Rajeev Shah- Branch Manager of Net-4 (India) Pvt. Ltd. has

stated that, the business of their company is to provide internet services

and the work is carried out as per the instructions received from their

Delhi office. He has stated that, space was made available in their Data

centre for the purpose of installing the server of Echovox (India) Pvt.

Ltd. as per the agreement entered into between their Company and

Echovox (India) Pvt. Ltd. He has stated that, the entire operations of

Net-4 (India) Pvt. Ltd. is carried out as per the instructions of their CEO-

Mr.Jasjit Singh. Batuk Rao-General Manager of Net-4 (India) Pvt. Ltd.

has reiterated the statement made by Rajeev Shah.

12. The statements as noted above reveals that the server of

Echovox (India) Pvt. Ltd. was kept in the Data Centre of Net-4 (India)

Pvt. Ltd. which was raided. Admittedly the Petitioner was an employee

of Net-4 (India) Pvt. Ltd. and his presence at the premises cannot be

viewed as being for the purpose of operating the illegal telephone

exchange. The statements indicate that, the operations at the Data

Centre were being run under the orders and directions issued by

Mr.Jasjit Sohoni, CEO of Net-4 (India) Pvt. Ltd. and from their offices

located at Pune and Delhi. The equipment of Echovox (India) Pvt. Ltd.

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was installed in the premises pursuant to an agreement executed

between Net-4 (India) Pvt.Ltd. and Echovox (India) Pvt. Ltd.

13. It is evident from the material collected during the

investigation that Net-4 (India) Pvt. Ltd. was providing internet services

to its customers and one of its customer was Echovox (India) Pvt. Ltd.

The equipments in-question which were being used for running the

illegal telephone exchange was procured by Echovox (India) Pvt. Ltd.

itself and was being operated through the internet services by Net-4

(India) Pvt. Ltd. and its server was set up in the Data Centre of Net-4

(India) Pvt. Ltd. The investigation does not reveal any material to

establish the nexus of the Petitioner with the operation of the illegal

telephone exchange. The admitted position is that the Petitioner is an

employee of Net-4 (India) Pvt. Ltd. and his presence in the premises at

the time of the raid is completely justified. There are consistent

statements of the witnesses that, the employees were carrying out work

under the orders and directions of the CEO of Net-4 (India) Pvt. Ltd.

Mr.Jasjit Sohoni.

14. It is pertinent to be noted that, by an Order of even date, the

learned Additional Chief Metropolitan Magistrate has discharged

Mr.Jasjit Sohoni-CEO of Net-4 (India) Pvt. Ltd. by considering in detail

the statements of the witnesses recorded during investigation. The Order

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discharging the CEO records that unless and until there is evidence to

that effect to show the knowledge and active participation in running

the unauthorised telephone network he cannot be held liable merely

because he is managing director of Net-4 (India) Pvt.Ltd. It is also

observed that, the employees also do not know about the said illegal

unauthorised telephone network.

15. In view of aforesaid observations of the same trial Court in the

same trial crime, we fail to comprehend as to how the Order of rejection

of discharge application of the employee can be passed. We find

considerable force in contention of Mr.Kulkarni that apart from the

presence of Petitioner, there is no incriminating material to indict him in

the present crime. As discussed above, the presence of Petitioner at the

time of raid in the premises of his employer Company-Net-4 (India) Pvt.

Ltd. is completely justified. The statement of witnesses indicates that,

the employees were carrying out the routine work as assigned to them

by the CEO-Mr.Jasjit Sohoni. There is no material to indicate the active

participation of the Petitioner in the running of the said unauthorised

telephone exchange.

16. The Sessions Court has failed to appreciate that, there is no

sufficient material to frame the charges against the Petitioner and has

dismissed the revision application. The impugned Orders are therefore

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unsustainable in law.

17. Considering the material collected during the investigation, in

our opinion, there is no material to frame the charges against the

Petitioner for the alleged offences.

Resultantly, the impugned Order dated 25 th January, 2007

passed in C.C.No.179/PW/2005 pending before the Court of

Metropolitan Magistrate, 37th Court, Esplanade, Mumbai and the Order

dated 8th March, 2007 passed in Revision Application Stamp No.242 of

2007 are quashed and set aside. Proceedings being C.C.No.179/PW/

2005 is quashed qua the Petitioner.

18. Rule is made absolute in the above terms.

                                (SHARMILA U. DESHMUKH, J.)                          (A.S. GADKARI, J.)




Signed by: Sanjay A. Mandawgad                                                                        10/ 10
Designation: PA To Honourable Judge
Date: 03/11/2023 10:53:58