Bombay High Court
Kalu Singh Nahar Sigh Dasana vs The State Of Maharashtra on 26 February, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-AS:10490-DB
WAKLE
MANOJ
JANARDHAN P.H. Jayani 903 APL386.2018.doc
Digitally signed by
WAKLE MANOJ
JANARDHAN
Date: 2025.03.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
11:43:54 +0530
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION (APL) NO. 386 OF 2018
Kalu Singh Nahar Singh Dasana
Age : 21, Occ. Working at jewellers shop,
Add : Shivshakti jewelleres, Shop No.3,
Building No.14, Mhada Colony,
Maharashtra Nagar, Mankhurd,
Mumbai - 400043. ..... Applicant
Vs.
1. State of Maharashtra
Dindoshi Police Station, through its
Investigating Offier, (FIR No.62/2018)
2. Karuna Agarwal
R/A, 1402, Dhiraj Vhally Tower,
Mohan Gokhale Marg,
Saibaba Complex, Goregaon (E),
Mumbai ..... Respondents
WITH
CRIMINAL APPLICATION (APPP) NO.366 OF 2018
IN
CRIMINAL APPLICATION (APL) NO. 386 OF 2018
Mrs. Karuna Sharad Agarwal,
Age : 54 years, Occ : writer,
R/at : 1402, Dheeraj Valley Tower,
Mohan Gokhale Marg, Goregaon (E),
Mumbai - 400063. ..... Applicant
In the matter of :-
Kalu Singh Nahar Singh Dasana,
Age : 23 years, Occ. Service,
R/at : Mankhurd, Mumbai.
Vs.
1. State of Maharashtra
(at the instance of Dindoshi Police Station) ..... Respondent
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P.H. Jayani 903 APL386.2018.doc
Mr. Manish N. Jain a/w. Ms. Ritu G. Gehlot, Mr. Prasad Mundhe
i/b. S.M. Jain Associates for the Applicant in APL/386/2018.
Mr. Prashant P. Jadhav, APP for the Respondent No.1-State.
Mr. Kunal Ambulkar for the Respondent No.2/Intervenor.
CORAM: BHARATI DANGRE AND
SHYAM C. CHANDAK, JJ.
DATED : 26th FEBRUARY, 2025.
JUDGMENT (PER SHYAM C. CHANDAK, J.)
. The aforesaid Criminal Application No.386/2018 is filed under
Section 482 of Cr.P.C. and seeking quashing and setting-aside of an F.I.R.
bearing C.R.No.62/2018 registered with Dindoshi Police Station, Mumbai
but only to the extent of the offences punishable under Section 411 and 34
of I.P.C. alleged against the Applicant as the said F.I.R is also involving the
offences of Sections 380, 381, 411 and 34 of I.P.C allegedly committed by
other accused persons in the crime.
1.1) Respondent No.2 is the first informant. She filed the Criminal
Application No.366/2018 for intervention and prayed to direct that she
shall be added as Respondent in Appln. No.386/2018. However, record
indicates that, in compliance of the Order of this Court passed on dated
04.02.2019 in Appn.No.562/2018, the Applicant effected an amendment
and arrayed the Respondent No.2 as party in this Application. As such, the
Appln. No.366/2018 is worked out and stands disposed of.
1.1) Rule. Rule is made returnable forthwith and heard finally with
P.H. Jayani 903 APL386.2018.doc
consent of learned counsel for the parties.
2) Heard Mr. Jain, the learned Advocate for the Applicant, Mr.
Jadhav, the learned APP for the State and Mr. Ambulkar, learned Advocate
for Respondent No.2.
3) The background facts are that, on 19.01.2018, Mr. Omkar
Tiwari, a building security guard of Respondent No.2, sent one woman
namely Bharti for domestic work. The Respondent No.2 found said Bharti
suitable for the domestic work. On 21.01.2018, at about 10:00 a.m., Bharti
visited at Respondent No.2 and had discussion about the work. Then
Bharti went away and started to work from the next day.
3.1) On 23.01.2018, at about 09:30 a.m., the Respondent No.2 and
her husband went to her husband's office. Before that, their domestic aid
Funcui and Bharti had already left. On 24.01.2018, Funcui came for work
and after finishing the work, she went away. However, Bharti did not come
for the work on that day. On 25/01/2018, at about 03:00 p.m., when the
Respondent No.2 opened the locker in the cupboard, she found that her
various gold ornaments and diamond jewelry articles kept in the drawer
were missing. She searched for the same in the house but she did not get it.
Therefore, she filed an oral report of theft. Accordingly, police registered
the impugned FIR bearing C.R.No.62/2018, against an unknown person.
During investigation, police recorded the spot panchanama, statement of
witnesses and arrested Bharti and co-accused Seema Kokare on
26/01/2018 and on 05/02/2018 respectively.
P.H. Jayani 903 APL386.2018.doc
3.2) Interrogation with Bharti revealed that she committed the said
theft and with the help of her friend/co-accused Seema, she sold part of the
stolen ornaments weighing approximately 22 tolas to the Applicant, at Shiv
Shakti Jewellers, Mankhurd (E.) Mumbai. Accordingly, police went to the
said shop alongwith Bharti and panchas. The Applicant was present in the
said shop. The CCTV footage dated 24.01.2018 confirmed that Bharti and
her friend Seema had visited the said shop and that, the Applicant received
the ornaments from Bharti and weighed it. Therefore, the police gave a
notice under Section 41-A of Cr.P.C. to the Applicant, which he refused to
take and argued with the police. Then, police seized the DVR machine of
the CCTV cameras in the shop. The Applicant did not co-operate in the
investigation and instead pressurize the police through the office bearers of
the Jewellers' Association. Thereafter, accused Seema came to be arrested
on 05/02/2018 and she also confirmed the selling of the gold ornaments at
Shiv Shakti Jewellers. Investigation revealed that the Applicant paid
Rs.1,90,000/- to accused Bharti after receiving the stolen gold ornaments.
Therefore, section 411 of I.P.C. has been added in the crime. The seized
DVR was referred to FSL on dated 28.02.2018.
3.3) On 27.12.2018 the Applicant sent a parcel to Dindoshi Police
Station by courier service containing two gold bullion weighing 100 gms.
each and one gold coin weighing 20 grams. On dated 28.12.2018 police
opened that parcel in presence of panchas and found the gold bullions and
the coin therein, as certified by a Government Approved Valuer. Thereafter
P.H. Jayani 903 APL386.2018.doc
police recorded the statements of the courier persons.
3.4) Statement of Ramchandra Shinde revealed that he has been
employed with M/s. Vichare Express and Logistics Private Limited,
Chembur. On 26.12.2018, at about 05:30 p.m., the Applicant came there
and gave him a parcel. On inquiry, the Applicant stated that the parcel
contains a complaint application which he intend to courier to the police
station. He received and registered the parcel charging bill of Rs.85/-. The
Statement of Ramchandra Ajay Mourya revealed that he has been
employed with M/s. Vichare Express and Logistics Private Ltd., Malad (W),
Mumbai. On 27.12.2018, he received parcels of Malad area for its delivery.
One of the parcels was received from Chembur Office, which the Applicant
had addressed to Dindoshi Police Station. On 27.12.2018, he delivered the
said parcel to the dispatch writer, at Dindoshi Police Station. On
28.12.2018 the Applicant surrendered before the 67 th Court of Metropolitan
Magistrate, at Boriwali and he was sent to Taloja jail. The police took the
Applicant in custody on 29.12.2018 from the jail and arrested him. On
dated 01.01.2019, during police custody, the Applicant disclosed that he
received certain gold ornaments and a diamond jewellary from the accused
Bharti and Seema and then he melted the same. Further, the Applicant
disclosed that he sent the gold bullions and coin to the Police Station, by
the courier. Then, police opened that parcel in presence of the Applicant
and panchas. The Applicant identified the said gold. Hence, the same were
seized and panchnama was recorded in that regard. On completion of
P.H. Jayani 903 APL386.2018.doc
investigation police submitted the chargesheet against the Applicant.
4) Learned Advocate for the Applicant submitted that at the
relevant time, the Applicant was working with M/s. Shiv Shakti Jewellers.
On 24.1.2018, accused Seema and Bharati came to the shop of the
Applicant to sale the gold ornaments. But the Applicant wanted to buy the
valuables in a legal way, therefore, he asked for its bill. The accused Seema
had no bill/s thereof. Hence, the Applicant refused to buy the said
ornaments. Then both the women accused went away. This entire fact was
recorded in the CCTV footage and, it was seen and confirmed by the police.
However, the police falsely implicated the Applicant in this case only
because said women accused came to his shop to sale the gold as above.
Consequently the Applicant bought 220 grams gold from certain shop and
couriered it to the Police Station as above, just to establish his innocence.
Thus, the Applicant is innocent.
5) In contrast, Mr. Jadhav, the learned A.P.P. submitted that,
initially, the Applicant confirmed the transaction by weighing the gold
ornaments. Thereafter, the actual sale-purchase was given effect, out side
the shop. Then the Applicant melted the said ornaments and converted it
into the solid gold. He submitted that, when the fact of theft by Bharti and
receiving the stolen gold by the Applicant was confirmed, the police wanted
to arrest the Applicant but he argued with the police and pressurised them
through the office bearers of his association, to prevent the police from
performing their lawful duty. However, the police continued to investigate
P.H. Jayani 903 APL386.2018.doc
against the Applicant. Therefore, the Applicant sent the gold to the Police
Station by courier, to save himself. Thus, there is sufficient material against
the Applicant to prosecute him for the offence of Section 411 of I.P.C.
5.1) Mr. Ambulkar, the learned Advocate for the Respondent No.2
adopted the submissions made by the learned APP.
6) We have carefully considered the rival submissions in the light
of the record. It is an admitted fact that accused Bharti and Seema went to
the shop of the Applicant to sale the ornaments. The said transaction was
recorded in the CCTV footage. That, the CCTV footage is not showing that
the actual sale-purchase of the gold and payment of the money took place
inside the shop. There is no direct or indirect evidence on record showing
that the Applicant actually purchased the stolen gold from the said accused
Bharti and Seema and paid them its price Rs.1,90,000/-.
7) The Applicant has admitted that he sent the 220 grams gold to
the police on 27.12.2018. The prosecution claims that, said solid gold is
made after melting the stolen ornaments. However, the gold which the
Applicant sent to the Police station is in the form of bullion and coin. The
prosecution did not explain as to how the stolen gold ornaments weighing
220 grams on melting can become a solid gold of same weight 220 grams.
The Applicant's case is that, he purchased the solid gold weighing 220
grams and couriered that gold to the police, as the police booked him in
this crime. This fact is confirmed by the bill of said 220 grams gold issued
in the name of M/s. Shiv Shakti Jewellers by M/s.Vijay Laxmi Bullion,
P.H. Jayani 903 APL386.2018.doc
Dhanaji Street, Zaveri Bazar, Mumbai. Therefore, we find it difficult to
accept that accused Bharti and Seema sold the stolen gold to the Applicant
and, he is liable to be prosecuted for the alleged offence of Section 411 and
34 of I.P.C.
8) In view thereof, the impugned F.I.R. is liable to be quashed as
against the Applicant. Hence, we pass following Order.
-ORDER-
i) Impugned F.I.R. bearing C.R.No.62/2018 registered
with Dindoshi Police Station, Mumbai under Section 380, 381,
411 and 34 of I.P.C is quashed and set aside qua the Applicant.
ii) Criminal Application is allowed in aforesaid terms.
iii) Rule is made absolute.
(SHYAM C. CHANDAK, J.) (BHARATI DANGRE, J.)
