Delhi High Court

Mandeep Gandhi vs State Nct Of Delhi on 23 March, 2021

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Reserved on: 18.03.2021
                                         Pronounced on: 23.03.2021
+     CRL.M.C. 346/2017 & Crl.M.A. 1487/2017

      MANDEEP GANDHI                                        ..... Petitioner
              Through:           Mr. Ramesh Gupta, Senior Advocate with
                                 Mrs. Priya Sachdeva, Ms. Tanya Raheja,
                                 Mr.Nishad Sharma & Ms.Himanshi Bhatija,
                                 Advocates

                            Versus

      STATE NCT OF DELHI                           ..... Respondent
               Through: Mr. Panna Lal Sharma, Additional Public
                         Prosecutor for State with Inspector
                         R.P.Dabbas
      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                            JUDGMENT

1. Present petition has been preferred against the order dated 08.07.2016

passed by the learned Revisional Court, vide which order dated 17.11.2015

passed by the learned trial court framing charge against the petitioner has

been upheld. In this petition, aforesaid two orders as well as FIR in question

are sought to be quashed.

2. The brief facts of the case are that on 05.02.2003, complainant- V.

Shiva Kumar, Risk Management & Fraud Control Department, Citi Bank

made a complaint at Special Cell, Lodhi Colony, New Delhi regarding

skimming and counterfeiting of credit card suspecting that a few

shopkeepers had colluded with the criminals, which is causing loss to the

bank as well as genuine card holders. On his complaint, FIR No. 07/2003,

under Sections 419/420/467/468/471/120B IPC was registered at Special

Cell, New Delhi.

3. During investigation of this case, master mind Mayank Garg @

Bobby, Sharif Ahmed @ Sahil & Ajay Taneja were arrested on 22.02.2003

and upon further investigation, accused Mukesh Kumar, Jagdish Chand and

Aleem Ahmed who provided data of genuine card holder and shop keepers,

namely, Ashish Khera, Naresh Nagpal, Mukesh Dubey, Dhiraj Gupta, Jaspal

Singh, Chaman Lata Gupta, Gaurav Bansal, Lalit Chander and petitioner-

Mandeep Gandhi, at whose shops the cloned cards were used, were arrested

and recovery was effected.

4. Petitioner- Mandeep Gandhi, who was running a shop in the name of

M/S M.G.Electronics at Madangir, Delhi was arrested on 03.03.2003. The

allegations against him are of permitting use of fake credit cards and taking

30% share of the billing amount. It is alleged that on 13.01.2003, main

accused Mayank Garg along with co-accused Lalit Chand Verma came to

his shop, where they twice swiped the fake credit card in the name of R.B.

Santosh Kumar and caused loss of Rs.48,000/- to Citi Bank. It is alleged that

petitioner got an amount of Rs.13,000/- in the said transaction. It is further

alleged that Mayank Garg signed on the charge slip and bill as R.B.Santosh

Kumar, while petitioner- Mandeep Gandhi also signed on the bill prepared

by him. Prosecution has alleged that petitioner was in regular touch with

Lalit Chand Verma through his mobile phone, who was a middleman to

Mayank Garg, who was involved in the illegal use of cloned credit card.

During investigation, one mobile phone, photocopy bills, charge slips, copy

of terms and agreements of banks, bill book and electronic data capture

machine of City Bank was recovered from petitioner's shop and

complainant/ R.B.Santosh Kumar stated that he had never visited

M.G.Electronics nor did he authorize any one to use his card.

5. After completion of investigation, charge sheet in this case was filed

on 16.08.2003. Taking a view that at the stage of framing of charge, only a

prima facie case has to be seen and that circumstantial evidence of the case

has to be established and also that mere suspicion is sufficient to frame

charge, the learned trial court on 17.11.2015 framed charge under Sections

120B IPC, Sections 419/420 r/w Sections 468/471 IPC r/w Sections 467/474

r/w 467 all read with 120B IPC against the accused persons, including

petitioner. The aforesaid order of framing of charge dated 17.11.2015, was

challenged by the petitioner and the learned Revisional Court dismissed it

observing that there was sufficient material before the trial court to frame

charge against the petitioner. Hence, this petition.

6. During the course of hearing, learned senior counsel for petitioner

assailed the impugned order by stating that against his arrest, petitioner had

made an application to the appropriate authority for conducting a vigilance

enquiry in relation to how petitioner is associated with the present case and

after filing of charge sheet, he had also preferred an application before the

trial court for summoning the aforesaid vigilance enquiry, but it was

erroneously dismissed by the trial court observing that petitioner can take

benefit of the aforesaid report at the stage of defence.

7. Learned senior counsel for petitioner submitted that there is not an

iota of admissible evidence to suggest that petitioner had entered into a

criminal conspiracy with other accused persons and that the only material

available on record is the disclosure statement of main accused Mayank

Garg, which is inadmissible in absence of any recovery at the instance of

petitioner.

8. It was further submitted that the learned trial court without adverting

to the role assigned to each of the accused in the alleged crime, has

mechanically passed the impugned order on charge stating that prima facie

offences are made out against all the accused. He further submitted that even

the learned Revisional Court has fallen into error in not distinguishingly

appreciating the role of petitioner in the present case and presumed as if it is

at par with that of main accused Mayank Garg. It is submitted that the

recovered challan book, bill book and charge slip clearly show that

petitioner had conducted the entire transaction with bona fide intention, as

after approving the payment by the bank, purchaser signed the transaction

slip and as an abundant caution, petitioner also obtained purchaser's

signatures on the bill.

9. Lastly, learned senior counsel submitted that out of 15 accused

persons, two accused namely, Mayank Garg, main accused and Gaurav

Bansal, have expired and also that petitioner has been unnecessarily

subjected to mental harassment and humiliation for last many years,

therefore, these orders deserve to be set aside.

10. On the other hand, learned Additional Public Prosecutor for State on

instructions from Inspector R.P.Dabbas, Investigating Officer, explained

before this Court how cloning of credit cards resulted into siphoning off

amount of genuine card holders and caused huge loss to them as well as to

banks. Learned Additional Public Prosecutor submitted that petitioner along

with co-accused entered into a well designed criminal conspiracy and

permitted use of cloned cards at his shop for his personal gains and

recoveries made at his instance are subject to scrutiny during trial and does

not call for any interference at this stage. He further submitted that while

framing charge only a prima facie opinion has been given by the trial court

and petitioner has the remedy to prove his innocence at the stage of defence

evidence. He also submitted that the impugned orders are well merited and

do not call for any interference by this Court, hence, this petition be

dismissed.

11. I had heard learned counsel representing both the sides and have gone

through the impugned order as well as material placed on record.

12. In State of Maharashtra vs. Salman Salim Khan and Anr., (2004) 1

SCC 525, the Hon'ble Supreme Court has held as under:-

"12. We are of the opinion that though it is open to a High Court entertaining a petition under Section 482 of the Code to quash charges framed by the trial court, same cannot be done by weighing the correctness or sufficiency of evidence. In a

case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial......."

13. Further, the Hon'ble Supreme Court in Amit Kapoor Vs. Ramesh

Chander & Anr. (2012) 9 SCC 460 has made the following pertinent

observations:-

"19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage."

14. The plea raised in this petition is that the Revisional Court as well as

trial court have fallen in error in not considering that the petitioner is

innocent and is a victim of circumstances and the learned trial court has

mechanically framed charge against him along with other accused persons.

Pertinently, cloning of cards and its illegal use cannot be individually done

but with the connivance of others and in the present case, allegation against

the petitioner is of permitting the other accused persons to swipe the cloned

cards at his shop for personal gains. Recoveries made at his instance are also

under scrutiny. I do not find substance in the pleas taken on behalf of the

petitioner that there is no material on record to establish petitioner's

involvement in the offence in question. Trial in this case is in progress and

petitioner will have the opportunity to prove his innocence at the time of