Sunil Kumar Ojha vs State Of Chhattisgarh And Others
2022 Latest Caselaw 3906 Chatt

                                    1

        HIGH COURT OF CHHATTISGARH, BILASPUR

                            CRMP No. 990 of 2015


                     Judgment reserved on : 06/05/2022
                     Judgment delivered on : 21/06/2022


        Sunil Kumar Ojha S/o Girija Shankar Ojha, Aged About 45 Years,
        R/o Subhash Nagar, Kukaripara, Raipur Chhattisgarh
                                                             ---- Petitioner
                                  Versus
     1. State Of Chhattisgarh Through The Principle Secretary, Home
        Department, Mahanadi Bhawan, New Raipur Chhattisgarh
     2. The Superintendent of Police, Raipur Chhattisgarh
     3. Special Investigation Cell, Through The Office In Charge Traffic
        Head Quarter Premises, Kalibadi Raipur Chhattisgarh
     4. The Police Station Palari, Through The Station House Officer, Distt.
        Baloda Bazar Chhattisgarh
                                                          ---- Respondents

For petitioner - Shri T.K. Jha, Advocate.

For Respondent/State - Shri Ashutosh Mishra, PL.

Hon'ble Shri Justice Goutam Bhaduri CAV Judgment

1. By way of present petition challenge is made to the charge sheet in

the Crime No.138/2010 at Police Station Palari, Raipur in Criminal Case

No.1638/2012 whereby the petitioner has been inculpated by an

supplementary charge sheet No.68-A/2011 dated 16/08/2011 under

Sections 120, 120-B, 409, 411, 414, 420 of IPC and Section 4 and 5 of the

Prize Chits & Money Circulation Scheme (Banning) Act, 1978.

2. The allegation as per the charge sheet is that one Royal Vision

Care Marketing and Services Private Limited, Madhurai started a on line

business whereby the people were invited to deposit a minimum sum of

Rs.10,000/- and above in the account maintained in the bank by the said

company and were assured to be repaid with a high rate of interest. It was

assured that initially from 1 to 10 months of deposit initially 12% return as

a interest would be paid, thereafter it would be increased to 14 and 16% in

the subsequent year and eventually entire principal sum would be

returned at the end of 30 th month. Consequent thereto the public at large

deposited money in the account of Royal Vision Care Marketing and

Services Private Limited, Madhurai. Initially certain money was repaid but

eventually all of a sudden the account were closed and the money of the

people were not returned. After the FIR was registered, from the

Managing Director M. Velayutha Kumar bond and paper were recovered

and around 12423 people were found to be enlisted who had deposited

the amount. It is alleged that M. Velayutha Kumar in order to usurp the

money by criminal conspiracy entered into an agreement with one

Matoshree Developers and the partners and an agreement of purchase of

land dated 4/07/2009 was executed.

3. It is further alleged that pursuant to the agreement Matoshree

Developers partners received Rs.5 crores of which the payment received

were not shown and in order to show the ensuing project with seller,

investment to the general public at large, forged agreement were

executed with seller. It is alleged that the partners of the Matoshree

Developers knowing full well that Royal Vision Care Marketing and

Services Private Limited has received the amount by fraud entered into an

agreement and received 5 crore rupees which were received as an

outcome of an offence. It was further alleged that after receipt of Rs.5

crores as a part of sale consideration for one and a half year, no sale deed

was executed in favour of Royal Vision Care Marketing and Services

Private Limited therefore Matoshree Developers was involved in the

conspiracy. It is further alleged that forged agreement was executed in the

name of Matoshree Developers on 4/07/2009, and on that date the firm

was not registered. It is further stated that Matoshree Developers, who

entered into agreement for sale were not also the real owners of the land

but in turn entered into an agreement with different farmers/land holders to

execute the sale deed in favour of Royal Vision Care Marketing and

Services Private Limited. Under these background the charge sheet was

filed.

4. Learned counsel for the petitioner would submit that petitioner was

the seller of certain land for a valuable sale consideration. He would

submit that they entered into an agreement with the different

villagers/farmers/land holders to develop a colony for which necessary

permission for colonizer was also obtained. He would submit that those

documents would show the intention of the Matoshree Developers

wherein the petitioner was one of the partner. It is further contended that

there is no iota of evidence of conspiracy in between the Royal Vision

Care Marketing and Services Private Limited and the Matoshree

Developers and the Royal Vision Care Marketing and Services Private

Limited was only the purchaser who wanted to purchase the land to which

Matoshree Developers promised to provide. He would further submit that

neither any allurement was made by the petitioner nor any promise was

made by the petitioner to the different investors. As such the fraud or any

offence under the Prize Chits & Money Circulation Scheme (Banning) Act,

1978 is not made out. It is further submitted that Inspector General of

Police also investigated the issue and found that no offence is committed

by the present petitioner and opined to file an application for discharge,

therefore the proceeding which is pending against the petitioner is abuse

of process of law and is liable to be quashed.

5. Learned State counsel opposes the argument and would submit

that the petitioner was in hand in gloves with the Royal Vision Care

Marketing and Services Private Limited who collected the money from

different people of the State with a promise to return the same with high

interest and eventually stopped the repayment or returned the principal

money and closed the business. Therefore the petitioner being partner of

Matoshree Developers was also part of the crime as they project to sell

the land. Consequently the instant petition is liable to be dismissed

summarily.

6. I have heard learned counsel for the parties. Perused the entire

charge sheet and the evidence produced before the court.

7. Initially the prosecution case is that the Royal Vision Care

Marketing and Services Private Limited floated a chit fund scheme

wherein assurance was given to public at large that on deposit of amount

initially an interest of 12% would be given from 1 to 10 months, thereafter

14% interest would be given for 11 to 13 months and 16% interest would

be given from 21 to 30 months and eventually after 30 th month entire

principal sum would be returned. Several person deposited the amount

and initially for some point of time return was made by way of interest but

eventually it stopped and offices of chit fund company was closed for

which depositors lodged the complaint before the police and investigation

started. The statement attached with the charge sheet of the witnesses

are also perused. Examination of the entire statement of the witnesses

namely Hetram, Dilchand, Mahesh Ram Sahu, Shobha Ram, Ganesh

Ram, Bhisham Lal, Mahadeva, Balram, Khik Bai, Dhan Bai, Gyan Bai,

Samarulal, Radha Devi, Raj Kumari Baghel, Ghashi Das Bharadwaj,

Palrith Das Manikpuri, Ramdular Bharadwaj, Laxmi Narayan Sahu,

Sukhiram Nirala, Tiharu Ram, Jagnatiya, Kamal Kishore, Surendra Kumar,

Bihari Tandon, Babulal Karre, Ram Barose Tandon, Radha Bai Tandon,

Mogra Bai, Phool Sai, Hemvanti Sahu, Badku, Shyam Bai, Jivanlal Sahu,

Sevakram, Sanjay Kumar, Ram Bai, Sunil Kumar, Bhojram, Mohanlal,

Smt. Surbila, Digendra Kumar, Smt. Sita Sharma, Vishnu Prasad

Sonwani, Ram Narayan Verma, Manharan Lal, Smt. Mamta, Ganesh

Jolhe, Mamta Sahu, Vishwanath Sahu, Ishwar Prasad, Suresh Kumar,

Ganesh Ram Verma, Chandrika Prasad, Balaram, Divali Ram, Sagni Bai,

Sahdev Ram total numbering into 57 whose statements were recorded in

the year 2010 and 2011 were perused. No one has stated any role played

by the present petitioner or Matoshree Developers of which the petitioner

is the partner.

8. The document which is attached to the petition would show that

subsequently a supplementary charge sheet was filed against the

petitioner and others on the ground that Matoshree Developers have

entered into agreement of sale of land for which they on earlier occasion

entered into an agreement with different land holders. Further enquiry was

carried out by the Inspector General of Police which too endorse the fact

that the present petitioner Sunil Kumar Ojha had not allured any people or

public at large to invest money in the chit fund. The further enquiry report

purports that the chit fund company namely the Royal Vision Care

Marketing and Services Private Limited, Madhurai also had not made any

complaint against Sunil Kumar Ojha or Matoshree Developers. It further

clarifies that Matoshree Developers are not the partners of chit fund

company namely Royal Vision Care Marketing and Services Private

Limited, Madhurai. If the documents filed with the charge sheet are

admitted and the statements of charge sheet are admitted, no offence

under the Prize Chits & Money Circulation Scheme (Banning) Act, 1978 or

allurement to invest money can be attributed to the present petitioner.

9. The document attached with this petition shows that deed of

partnership of M/s. Matoshree Developers was executed on 26/02/2009

wherein the petitioner was one of the partner alongwith three others. The

document would show after the agreement of partnership the income tax

PAN was issued and PAN number was alloted. One letter issued by the

Firms and Society Chhattisgarh dated 27/03/2018 would show that

registration of firm was initially informed to the Investigation Officer to be

of 23/07/2009 which is actually 23/02/2009 so corrigendum was issued

about date of registration. This letter by the State issued by the Firms and

Society are not disputed. Consequently, it can be presumed that the

partnership firm Matoshree Developers wherein the petitioner was one of

the partner was formed on 23/02/2009. The document further attached

with this petition shows that a guarantee bond was issued by the Oriental

Bank of Commerce to the State on 6/03/2009 in favour of SDM Aarang

and copy of the minutes and resolution of Gram Panchayat Gannoud,

Tehsil Aarang. These documents would show that no objection certificate

was issued by the Gram Panchayat to develop a colony to Matoshree firm

on 7/03/2009. Thereafter on 8/03/2009 an amount of Rs.5000/- was

deposited at Gram Panchayat by Matoshree Developers. The document

would further show that on 12/03/2009 an application was filed before the

SDO, Abhanpur for colonizer registration by Matoshree Developers. By

the SDO on 12/03/2009 a colonizer registration was given to Matoshree

Developers which was confined to the Gram Panchayat Gannoud,

Aarang.

10. Various purchase agreement are placed on record to show that

Matoshree Developers entered into agreement of purchase with the

different land holders for purchase of land. On behalf of Matoshree

Developers the present petitioner Sunil Kumar Ojha as a partner signed

the agreement in few of the agreement. The contents of the agreement

would show that in lieu of part performance certain amount was paid to

the different land owners. The agreement further purports that the

remaining amount would be paid at the time of registration of the sale

deed. Therefore, prima facie it would show that the petitioner who is one

of the partner of Matoshree Developers entered into an agreement of

purchase for development of colony.

11. It is at this juncture an agreement of sale was executed on 4 th July,

2009 between Matoshree Developers and Royal Vision Care Marketing

and Services Private Limited. Perusal of the said agreement of sale would

show that particulars of the land were shown to be sold at a price of

Rs.23,50,000/- per acre which the purchaser Royal Vision Care Marketing

and Services Private Limited agreed to purchase. Perusal of the

particulars of the land shown in the agreement with Matoshree Developers

are the same which were agreed to be purchased by different land owners

by Matoshree Developers apart from the other land. The company Royal

Vision Care Marketing and Services Private Limited who obtained money

from different people to multiply it and with a promise of high rate of

interest agreed to purchase the land with the money which are said to be

proceeds of crime. The seller, Matoshree Developers in turn received the

money to transfer some part of land to Royal Vision. Even such facts are

admitted that Matoshree Developers, wherein the petitioner is partner had

received the money, in absence of any evidence it cannot be presumed

that Royal Vision, the chit fund company in connivance with Matoshree

Developers had received the money to invest in chit fund and thereafter

parted with some part of it with Matoshree Developers.

12. There is no report by any of the land owners that they have been

deceived by the Matoshree Developers or their partners to part with the

money. Matoshree Developers have been inculpated by filing of the

additional charge sheet that they received amount from Royal Vision Care

Marketing and Services Private Limited, who obtained it from different

people with promise of high return. Agreement of sale in between

Matoshree Developers wherein the petitioner is partner alongwith Royal

Vision Care Marketing and Services Private Limited is for sale of land

which they initially agreed to purchase from the different land owners. On

a simple reading of the documents as appears on the face of the

complaint without any critical examination of the same it shows that it is

out and out commercial transaction done by Matoshree Developers for

sale of land to Royal Vision Care Marketing and Services Private Limited,

Madhurai. The inference can be drawn without embarking upon an enquiry

as the case of the prosecution is that Matoshree Developers were

marching alongwith the accused Royal Vision Care Marketing and

Services Private Limited.

13. The documents shows that despite entering into agreement Royal

Vision Care Marketing and Services Private Limited did not execute the

sale deed and paid the remaining amount of sale consideration. Under

these circumstances, a legal notice was issued. The contents of the legal

notice issued would show that Royal Vision Care Marketing and Services

Private Limited, Madhurai was asked to execute the sale deed in favour of

Matoshree Developers and pay the remaining amount.The notice was

replied by Royal Vision Care Marketing and Services Private Limited,

Madhurai wherein they called upon the sender of the notice to provide all

material document but eventually the sale deed could not be executed.

Thereafter, document shows that certain letters were exchanged between

Matoshree Developers and Royal Vision Care Marketing and Services

Private Limited but the sale deed could not take place. It is at this stage a

notice was served by one Advocate T.C. Agrawal on behalf of Matoshree

Developers on 25/12/2010 that despite extension of time to execute the

sale deed they are not able to execute the sale deed as such the earnest

money of Rs.5 crore would be forfeited and remaining amount of Rs.6

crores 75 lakhs was called for by execution of sale deed apart from

interest. In reply to such notice by the Royal Vision Care Marketing and

Services Private Limited they stated that they are ready and willing to get

the sale deed of land worth Rs.5 crores i.e. 21.29 acres of land but the

fact show that it was eventually not done.

14. The supplementary charge sheet would show that sale agreement

was executed by different land owners in favour of Matoshree Developers

and in the meanwhile the petitioner was also put under custody. The

document filed along with petition further would show that an internal

enquiry was initiated by the police about role played by the petitioner and

the Matoshree Developers at the request of father of petitioner. The

document of the police department dated 14/01/2022, which is received

under the RTI, would show that an enquiry was conducted by the

Inspector General of Police and the following was found against the

present petitioner Sunil Kumar Ojha :

(1) No complaint has been made by any person against petitioner

Sunil Kumar Ojha.

(2) No complaint has been made by Royal Vision Care Marketing

and Services Private Limited, Madhurai (Tamil Nadu) against

Matoshree Developers.

(3)The petitioner Sunil Kumar Ojha has not made any appeal to the

public at large or allured the people to invest money in the chit fund

company.

(4) Matoshree Developers is not a partner in the business of chit fund

company.

(5) Matoshree Developers has entered into an agreement with Royal

Vision Care Marketing and Services Private Limited, Madhurai in the

year 2009 and at the time when the agreement was executed for

purchase no FIR was pending against any one including the Royal

Vision Care Marketing and Services Private Limited, Madhurai.

(6) Police started enquiry at the behest of G.S. Ojha who is father of

the present petitioner.

15. Since the charge sheet was already filed and further opinion was

asked for from the SDPO Law. According to his opinion, it was found that

Matoshree Developers entered into an agreement of sale and received

amount of Rs.5 crores which was shown in the income tax return by them.

It further purports that when the registration of sale was not done by

Royal Vision Care Marketing and Services Private Limited, Madhurai the

notices were exchanged but no sale deed was executed. It was further

concluded that according to the enquiry no evidence of conspiracy was

found against Matoshree Developers and the partner in the involvement of

any crime. Then after final conclusion by the Inspector General of Police

the primary finding arrived at by the Inspector General of Police was

reiterated by its letter dated 11/09/2013 and it was found that according to

the case dairy document no evidence is available that Matoshree

Developers was involved in any conspiracy and it was further advised

since the charge sheet has been filed as such the proceeding may be

drawn for discharge of the present petitioner. The finding of the Inspector

General of Police dated 27/11/2013 are reproduced hereunder:-

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16. Having considered the aforesaid analysis of the police itself, it

would show that no evidence exists against the petitioner who being

partner of Matoshree Developers was made an accused. According to the

enquiry of the police, no evidence of conspiracy is available. Even the

reading of the entire charge sheet no statements have been given against

the present petitioner or any evidence is available against Matoshree

Developers, wherein the petitioner is partner is said to be involved in

criminal conspiracy. According to the police itself it was found that no

evidence is available. Therefore, having considered the aforesaid finding

of the police and examination of the charge sheet, it shows that the

allegation set out in the complaint do not constitute an offence for which

cognizance have been taken by the Magistrate. Consequently, in the

considered opinion of this Court, it would be open for this Court to quash

the same in exercise of inherent power under Section 482 of the code.

Reading the complaint as a whole and consideration of the allegation in

the light of the statement made as compared to the ingredients of the

offence which are disclosed in the charge sheet, there is no material to

show any evidence.

17. The Supreme Court in case of Parbatbhai Aahir alias Parbatbhai

Bhimsinhbhai Karmur and others Vs. State of Gujarat and another

reported in (2017) 9 SCC 641 has set out the broad principles to exercise

power under Section 482 of the Cr.P.C. One of the principle is the inherent

power of High Court has a wide ambit and plenitude and to be exercised

to secure the ends of justice or to prevent an abuse of process of any

court.

18. In the instant case, the charge sheet would show that initially Royal

Vision Care Marketing and Services Private Limited obtained money from

the different public at large with allurement to multiply the same. The said

Royal Vision Care Marketing and Services Private Limited also floated to

open some herbal agriculture. The Matoshree Developers wherein the

petitioner is a partner was traveling on different boat to develop a colony

and obtained permission from the revenue authorities had entered into an

agreement for purchase of the land from different land holders. In the

meanwhile, in 2009 Royal Vision Care Marketing and Services Private

Limited original, chit fund company offered to purchase the land for which

initial agreement was existing in between the land holders with Matoshree

Developers. Matoshree Developers in turn decided to sell some

substantial part of the land and entered into an agreement in 2009 and

received amount of earnest money. Thereafter, the sale deed could not

materialize and notices were exchanged in between the parties.

Eventually after the last notice Royal Vision had agreed to purchase only

land worth Rs.5 crores for which the earnest money was initially paid but

that too did not happen. In the meanwhile, FIR's were lodged against the

Royal Vision Care Marketing and Services Private Limited by the different

beneficiaries that they have been cheated and at this point since the

agreement of sale was existing in between Royal Vision Care Marketing

and Services Private Limited and Matoshree Developers, by way of

supplementary charge sheet they were inculpated. The petitioner who is

one of the partner of Matoshree Developers was also arrested. During his

arrest the father of the petitioner made an application to the higher officials

of police to investigate. Inspector General of Police investigated the entire

issue and eventually found that no offence or evidence exist against the

present petitioner, therefore, departmentally it was considered for

discharge, however, it did not happen. According to the enquiry by

Inspector General of Police, no evidence exist against the petitioner.

Considering the facts into totality as has been discussed in the earlier

paragraphs, this court is of the opinion that the continuation of the

proceeding for prosecution of petitioner would be abuse of process of

Court as iota of conspiracy is completely absent which can be attributed to

the petitioner. In a result, petition is allowed. Prosecution of the petitioner

is quashed. Supplementary charge sheet filed bearing No.68-A/2011

under Crime No.138/2010 against the petitioner also stands quashed.

Sd/-

(Goutam Bhaduri)

JUDGE gouri