Date: 23 March 2026
P.C.:
.
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Chitra Sonawane. 39-CRA-567-2015.docx
2. It is the case of the prosecution that accused Nos.1 and 2
devised multiple schemes under the banner of Unique Fincorp
and publicised them through newspaper advertisements.
Through these advertisements, they enticed the complainant
and other witnesses with assurances of lucrative and high
returns on investment, as well as offers to procure motor
vehicles of various brands in the investors' names upon
payment of a down payment, thereby securing their confidence.
It is alleged that, despite Unique Fincorp neither being
registered nor authorised by the Reserve Bank of India, the
accused falsely represented to the complainant and the
witnesses that the company was duly registered and approved
by the Reserve Bank. It is further alleged that accused Nos.1
and 2, in connivance with others, executed fabricated
agreements on government-franked papers in the name of
Unique Travels. By creating such sham agreements in exchange
for investments and issuing advance cheques, they deliberately
suppressed material facts and induced the complainant and
other witnesses to invest substantial sums. Using this modus
operandi, accused Nos.1 and 2 are alleged to have collected
more than Rs.17 crores, both in cash and through cheques,
from the complainant and approximately 3,500 investors. It is
further alleged that they reneged on their promise by failing to
deliver the promised returns and purchasing the vehicles in the
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investors' names, thereby defrauding them and
misappropriating the funds for personal gain.
3. The prosecution, relying upon the statement of accused
No.1, further alleges that accused Nos.3 to 6 committed
housebreaking and theft at premises located at Prabhat Road,
Lane No.15, Mudrali Co-op. Housing Society, 2nd Floor, Plot
No.A/10, Pune, by using a duplicate key. They are alleged to
have appropriated and distributed among themselves a sum of
Rs.2.5 crores from the investment funds of Unique Fincorp.
Based on these allegations, the present applicant/ accused No.5,
along with the co-accused, is alleged to have committed
offences punishable under Sections 406, 411, 420, 414,
489(G), 457, 380 read with 34 of the Indian Penal Code
('IPC'), and Sections 45S, 45-IA, 58B, and 5(A) of the Reserve
Bank of India Act, 1934.
4. Mr Ganesh Gole, the learned Counsel appearing on behalf
of the applicant, submits that the charge against the applicant is
groundless. It is contended that the applicant was admitted to
Akshay Hospital, Pune, at the relevant time and thus could not
have committed the alleged offence. This is corroborated by the
statement of one Dr Suhas Parande of Akshay Hospital. The
learned Counsel further submits that accused No.3 is the
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brother of the present applicant, who sought to buy back his
share in a property owned by the applicant. In this context,
accused No.3 paid the applicant's debts and later gave him
Rs.25 lakhs. The applicant was unaware that the property in
question was stolen. The learned Counsel further points out
that the applicant was neither named in the FIR nor was he
identified by the key maker. The allegations against him are
vague and bereft of details. The recovery of the alleged funds is
from legitimate business income, not the proceeds of a crime,
and there is no material on record linking the applicant to the
alleged crime. Furthermore, no test identification parade has
been conducted. The learned Counsel further submits that the
applicant has been falsely implicated in the crime and prays for
discharge.
5. On the other hand, Mr VA Kulkarni, the learned
Additional Public Prosecutor representing the respondents/
State, opposing the applicant's request, draws the attention of
this Court to the disclosure statement of the applicant to submit
that a sum of Rs.22 lakhs, along with other electronic
equipment, was recovered from the applicant's residence. The
applicant was specifically implicated by the co-accused in the
theft of the funds. The learned APP further submits that the
statement of the accused persons leading to discovery of fact
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are admissible in evidence and the test identification parade can
be used only to corroborate evidence recorded in the Court and
is not substantial evidence. In support of his contention, the
learned APP relies upon the decisions in: (i) Mehboob Ali and
Anr vs. State of Rajasthan, 2015 AIR SCW 6123; and (ii) Vijay
alias Chinee vs. State of MP, 2010 AIR SCW 5510.
6. This Court has given anxious consideration to the rival
contentions canvassed across the Bar and perused the records.
7. It is well-settled in law that, while exercising jurisdiction
under Section 227 of the Code of Criminal Procedure, 1973,
the Court must sift through the material on record to ascertain
whether sufficient grounds exist to proceed against the accused.
Although a detailed appreciation of evidence is not warranted
at this stage, the Court is nonetheless obliged to examine
whether the material, taken at its face value, discloses a grave
suspicion against the accused, as opposed to a mere conjecture.
8. In the present case, the alleged offence is bifurcated into
two distinct segments. The first segment pertains to accused
Nos.1 and 2, who are alleged to have perpetrated acts of fraud
and cheating by dishonestly inducing and duping numerous
investors. The second segment concerns accused Nos.3 to 6,
against whom allegations have been made of unlawfully
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breaking open a flat situated at Prabhat Road, Pune, belonging
to the company owned by accused No.1, and committing theft
of monies amounting to approximately Rs.2.5 crores. It is
further alleged that the said unlawful entry and subsequent
misappropriation were facilitated on the basis of information
provided by accused No.1, Santosh Shinde.
9. Upon a careful perusal of the charge sheet, it is evident
that there is no material on record to show that the present
applicant has any nexus whatsoever with the fraudulent
financial activities or the inducement of investors, which are
exclusively attributable to accused Nos.1 and 2. The applicant's
alleged involvement arises solely in relation to the second
segment of the offence, wherein it is alleged that the applicant,
in connivance with Chandrakant Helkar/ accused No.3,
Hanumant Nale/ accused No.4, and two unidentified
individuals, forcibly broke open the aforesaid flat at Prabhat
Road, Pune, and committed theft of the said sum of Rs.2.5
crores. This theory of theft and house-trespass, which
constitutes the sole basis for implicating the present applicant,
appears to have been introduced subsequently during the
course of the investigation, primarily on the basis of the co-
accused's memorandum statement.
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10. An offence under Section 380 IPC necessarily requires
that the property in question be in the possession of a person
and that it be dishonestly removed from such possession
without consent. Likewise, Section 457 IPC presupposes
unlawful entry, by way of housebreaking or lurking house-
trespass by night, into premises in the possession of another,
with intent to commit an offence.
11. Pertinently, in the present case, there is no complaint or
allegation of theft by the owner or lawful possessor of the flat
from which the cash is alleged to have been removed. The
prosecution proceeds on the premise that certain monies were
lying in the said premises and were subsequently taken away.
However, in the absence of any grievance articulated by the
person in possession of the premises, the very foundation of the
offences punishable under Sections 380 and 457 of the IPC is
rendered doubtful. The lack of such a foundational allegation is
not a mere procedural lapse; it goes to the root of the matter
and significantly undermines the credibility of the prosecution's
theory of theft, especially when the FIR is conspicuously silent
on any incident of housebreaking or theft.
12. When this fundamental infirmity is considered alongside
the absence of any nexus between the alleged recovery and the
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alleged crime, the weak and uncorroborated nature of the
statement of the co-accused, and the absence of material
placing the applicant at the scene of the offence, the
prosecution's case against the applicant falls short of the
threshold required to proceed to trial.
13. The learned APP submitted that the recovery of Rs.22
lakhs under Section 27 of the Indian Evidence Act was effected
at the instance of the applicant. However, there is no complaint
or material on record to establish that the said amount was
stolen or unlawfully appropriated, nor is there evidence to
suggest that accused Nos.1 and 2 were in possession of stolen
property in the flat situated at Prabhat Road, Pune.
Significantly, there is no allegation that the present applicant
induced any investor to contribute funds to a fraudulent
scheme or that he deceived them in any manner. The applicant
is not named in the FIR and no connection between him and
the alleged offence emerges from the record.
14. The documentary evidence further reveals that the
applicant was admitted to Akshay Hospital from 5 August 2007
to 5 September 2007. The investigating agency has recorded
the statement of Dr Suhas Parande, who has categorically
confirmed the applicant's hospitalisation during the relevant
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period, and has also filed an affidavit affirming the same. The
statements of material witnesses do not implicate the applicant.
Sagar Sangle, the driver of the vehicle allegedly used in the
incident, does not mention the applicant. Balasaheb Tarde, the
watchman of the building where the alleged occurrence took
place, has not described or identified the applicant, nor was he
summoned for a test identification parade. Similarly, witnesses
Mudassar Choudhary, Abdulla Shaikh and Salim Shaikh, who
were key makers, provided descriptions of certain accused
persons but were never called upon to participate in a test
identification parade. In fact, no test identification parade was
conducted in respect of the present applicant.
15. No other material has been produced to connect the
applicant with the alleged offence. The statement of Amarjeet
Harvanshsingh Chavra merely records that the applicant, along
with accused No.6, visited his electronic shop on 29 August
2007 and purchased electronic items worth Rs.55,000/-. This
evidence, however, does not disclose any criminal conduct on
the part of the applicant and falls short to connect the present
applicant with the alleged crime.
16. It is a settled principle of law that suspicion, however
strong, cannot substitute proof. Mere doubt cannot compel an
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individual to undergo trial, as such compulsion would offend
the procedure established by law and infringe the fundamental
right to life and personal liberty guaranteed under Article 21 of
the Constitution of India. The term legal evidence must be
understood to mean evidence that discloses a prima facie case,
supported by the record and accompanying documents.
17. The prosecution's reliance on the statement recorded
under Section 27 of the Indian Evidence Act is misconceived. It
is well established that a confession made by an accused is not
admissible under Section 27; only that portion of the statement
which distinctly relates to the discovery of a fact is admissible.
Any attempt to treat such statement as a confession is contrary
to settled legal principles and cannot be sustained.
18. The cumulative effect of these deficiencies is that the case
rests on conjectures rather than on a legally sustainable
foundation qua the applicant.
19. In such circumstances, the continuation of proceedings
against the applicant would not be justified. Accordingly, the
impugned order dated 4 September 2015, passed by the learned
Additional Sessions Judge, Thane, below Exhibit 153 in
Sessions Case No.450 of 2011, is quashed and set aside. The
applicant stands discharged from Sessions Case No.450 of
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2011, pending on the file of the learned Additional Sessions
Judge, Thane, arising out of CR No.606 of 2007, registered at
Chaturshungi Police Station, Pune.
20. The present revision application stands disposed of
accordingly.
[R.N. Laddha, J.]
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