Bombay High Court
Rakesh Roshan vs State Of Maharashtra And Ors on 1 February, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:5341
Darshan Patil 901-wp-188-23.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 188 OF 2023
RAKESH ROSHAN ..PETITIONER
VS.
THE STATE (A.C.B./C.B.I) AND ORS. ..RESPONDENTS
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Adv. Prassanna Bhangale a/w Ms. Madhur Gadodia, Mr.
Shashank Trivedi and Ms. Bhagyashree Shukla i/b Naik Naik
and Company for the Petitioner.
Mr. H.S. Venegavkar for Respondent-CBI.
Mr. S.H. Yadav, APP for the State.
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CORAM : M. S. KARNIK, J.
DATE : FEBRUARY 1, 2024
ORAL JUDGMENT:
1. Heard Shri Prassanna Bhangale learned counsel for
the petitioner, Shri Venegavkar learned counsel for the
respondent-CBI and learned APP for the State. Shri
Venegavkar opposed the petition.
2. Respondent No.1 - Central Bureau of Investigation
(CBI) had registered the FIR pursuant to a complaint filed
by the petitioner on 19/08/2011 against respondent Nos. 3
and 4 for the offence punishable under Sections 420,
120(B) of the Indian Penal Code and Sections 7, 8 and
13(1) of the Prevention of Corruption Act, 1988.
Darshan Patil 901-wp-188-23.docx
3. Briefly stated, it is alleged that respondent Nos. 3 and
4 in connivance with each other cheated the petitioner and
induced him to pay an amount of Rs.50,00,000/- under the
pretext and malafide representation that the petitioner
would be arrested in some frivolous case and that
respondent No.3 is determined to issue an arrest warrant
against the petitioner if the petitioner does not meet with
their demands. Respondent No.3 represented himself as a
top-ranking CBI officer from Delhi. The respondent No.4
represented himself as an agent of respondent No.3.
4. The petitioner challenges the order dated 14/12/2021
passed in M.A. 812 of 2020 in FIR No. 29 of 2011 by the
Sessions Court, Mumbai. The Sessions Court rejected the
application of the petitioner for the refund/return of
property i.e. amount of Rs.20,00,000/-. The application
was rejected as not maintainable on the ground that the
petitioner without challenging the order dated 09/11/2012,
after 10 years filed the application for return of amount.
While rejecting the application, it is further observed that by
the said application the petitioner wants to seek review of
the earlier order dated 09/11/2012 which has attained
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finality.
5. A reference to the order dated 09/11/2012 is
necessary. The petitioner prayed for return of the amount
of Rs.50,00,000/-. For the reasons mentioned in the order
dated 09/11/2012, the Sessions Court had allowed the
application partly and an amount of Rs.30,00,000/- out of
Rs.50,00,000/- was directed to be returned to the
petitioner. The petitioner was directed to furnish an
indemnity bond of Rs.50,00,000/- with one or more solvent
sureties in the like amount inter-alia as and when directed
by the Court. In default, to pay the penalty of the
compensation as the Court may then determine. It is
submitted that the condition of furnishing surety was later
relaxed.
6. The following are the reasons mentioned in the order
dated 09/11/2012 for which the application was partly
allowed only to the extent of Rs.30,00,000/-:-
"9. At this stage the scope of enquiry is limited.
The intricate question of title to the property would
not be gone into. Prima facie assessment is done and
the main consideration while ordering return of
property is that the person to whom it is returned
should be in a position to produce it as and when
necessary.
Darshan Patil 901-wp-188-23.docx
10. The copy of the FIR. explains in detail the kind
of representations made to the applicant and how he
yielded to the pursuation. It also shows how in order
to save himself from embarrassment. The applicant
handed over hard cash of Rs.50,00,000/- to the
accused. The applicant was involved in litigation in
India and abroad with the Shahs. He has described
that he wanted to avoid further harassments.
Whether he was justified in paying such a huge
amount is a question which can be gone into later
on. But one can understand that he had found
himself in a vulnerable position.
11. The applicant is a film personality and in the
argument before the Court and his ability to pay
such a huge amount is not disputed. He is stated to
be solvent enough for that matter The learned
advocate further submitted that the applicant would
without difficulty produce the amount whenever
ordered by the Court. She also submitted that the
Court may impose any condition to ensure safety of
the money when returned to the applicant.
12. Though the accused Mr. Sharma claimed the
property to be his own hard earned money no one
appeared on his behalf. He has filed documents on
record they comprise of income tax returns in his
name for 2008-09 to 2010-11 and in the name of his
wife Meenakshi for 2008-09 and 2009-10. The
returns are accompanied by balance sheets which do
not bear any authentication, neither signature or
seal of the Chartered Accountant or any Authority.
13. In the return for 2008-09 the total income of
the accused Mr. Sharma is shown at Rs.206,052/- in
the next year it is shown at Rs.286,549/- and in-
2010-11 it is shown at Rs.346,398/-. The income of
his wife during 2008-09 is shown at Rs.51,62,49/-
and in the next year at 671,592/-. Neither in the
reply nor in the returns the nature of business
conducted by the accused and his wife is disclosed.
Darshan Patil 901-wp-188-23.docx
Nevertheless it becomes clear that their annual
income till 2009-10, taken together was around Rs.9
to 10 lakhs.
14. Though the accused Mr. Sharma has claimed
the property to be his own, the co-accused Rajesh
Ranjan has endorsed no objection for returning the
property. In the above circumstances, mere claim of
the accused is not sufficient prima facie there is no
material to support his claim. When assets
comprising of 22 immovable properties, gold
weighing around 33 kgs and cash of around 2.94
crores is seized from the accused his mere claim that
it belongs to him is not sufficient. The tax returns,
against the above property appear to be of a very
poor person. The claim of the accused should not be
allowed to be use as a lever to force the complainant
and a person aggrieved to settle the dispute out of
Court. Therefore, I do not find any substance in the
claim by the accused.
15. In the sister application this Court has already
directed return of part of the property including a
cash of Rs.1 crore. In the circumstances, it would be
just and proper to partly allow this application and
order a return of Rs.30,00,000/- to the applicant.
That can be subject to certain conditions."
7. It is true that the aforesaid order dated 09/11/2012
was not challenged immediately. By the application on
which the impugned order dated 14/12/2021 came to be
passed, the petitioner sought refund of the remaining
amount of Rs.20,00,000/- which came to be rejected on the
grounds aforementioned. The order dated 09/11/2012 is
now challenged.
Darshan Patil 901-wp-188-23.docx
8. This Court vide order dated 25/09/2023 recorded that
there is no requirement to issue fresh notice to respondent
No.4 as he had not contested the application before the trial
Court. So far as respondent No.3 is concerned, the office
remark indicates that respondent No.3 is duly served.
9. In my opinion, the delay in challenging the order
dated 09/11/2012 should not be a factor to deprive the
petitioner of the relief of return of the balance amount of
Rs.20,00,000/- as in any case the trial was pending.
Moreover, from the reasons mentioned in the order dated
09/11/2012, it is seen that it was the stand of the
respondent No.3 that the property seized by CBI was
respondent No.3's own hard-earned money. Certain
documents were filed by respondent No.3 to establish the
claim. The trial Court recorded a finding that though
respondent No.3 has claimed the property to be his own,
the co-accused Rajesh Ranjan i.e respondent No.4 has
endorsed no objection for returning the property. The trial
Court further recorded that the mere claim of respondent
No.3 that the property is his own is not sufficient, as prima
facie there is no material to support this contention. After
Darshan Patil 901-wp-188-23.docx
perusal of the documents produced by respondent No.3, the
trial Court came to the conclusion that the claim of
respondent No.3 should not be allowed to be used as a
lever to force the complainant to settle the dispute out of
Court.
10. Further, the trial Court in paragraph No.5 has taken
into consideration the stand taken by the CBI in its reply
that from the amount of Rs.50,00,000/- which was collected
by respondent No.4 from the petitioner, he retained
Rs.20,00,000/- and paid Rs.30,00,000/- to respondent
No.3. When the respondent No.4 is not contesting the claim
of the petitioner having endorsed his no objection for
returning the property, there was no reason for the trial
Court to have partly allowed the application. Having
allowed the application to the extent of Rs.30,00,000/-,
which amount of Rs.30,00,000/- was the subject matter of
contest, there was no reason to deprive the claim of the
petitioner to return of Rs.20,00,000/- over which there was
no contest. In fact, the respondent No.4 had endorsed his
no objection for returning this amount.
11. Though Shri Venegavkar argued in support of the
Darshan Patil 901-wp-188-23.docx
impugned order, however, taking an overall view of the
matter, in my opinion, even the balance amount of
Rs.20,00,000/- can be returned to the petitioner on certain
terms and conditions.
12. In this view of the matter, the impugned order dated
09/11/2012 is set aside to the extent that the claim of
return of the amount of Rs.20,00,000/- has been refused.
Accordingly, the present petition is allowed. The amount of
Rs.20,00,000/- be returned to the petitioner.
13. The petitioner shall furnish an indemnity bond for
Rs.20,00,000/- with one or more solvent sureties in the like
amount inter-alia undertaking to produce the same as and
when directed by the Court. In default, to pay the penalty
or the compensation as the Court may then determine.
14. The writ petition stands disposed of in the above
terms.
(M. S. KARNIK, J.)
Signed by: Darshan Patil
Designation: PA To Honourable Judge
Date: 03/02/2024 15:49:56
