Madhya Pradesh High Court
Rajat Saraf vs The State Of Madhya Pradesh on 4 December, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 4th OF DECEMBER, 2023
CRIMINAL REVISION No. 5430 of 2023
BETWEEN:-
RAJAT SARAF S/O SHRI RAKESH KUMAR SARAF, AGED ABOUT 28
YEARS, OCCUPATION: SERVICE R/O MADAWARA ROAD
MAHRONI LALITPUR U.P. (UTTAR PRADESH)
.....PETITIONER
(BY SHRI PEYUSH JAIN, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THROUGH POLICE STATION KHAJRANA, INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SUDHANSHU VYAS, PANEL LAWYER)
This revision coming on for admission this day, the court
passed the following:
ORDER
The applicant has filed this Revision under Section 397
r/w 401 of the Code of Criminal Procedure, 1973 seeking
quashment of order dated 19.10.2023, whereby the application
under Section 227 of the Cr.P.C. has been rejected and charges
under Section 420/406 of the IPC & Section 6(1) of M.P.
Nikshepkon Ke Hiton Ka Sanrakshan Adhiniyam have been
framed.
02. Facts of the case are that one Sourabh Gupta S/o Satish
Sarmandal resident of House No.110, Scheme No.136, Anand
Vihar, Indore submitted a written compliant on 05.03.2022 to
Additional Superintendent of Police, Crime Branch, Indore
alleging that the present applicant is illegally running an advisory
company in the name of Uday Intellicall Advisory Company at B -
1, EC - 66, Scheme No.94, Near Bombay Hospital, Indore
without SEBI License and Gumasta License since last 5 - 6
month. He has also made a complaint against three other advisory
companies. The said complaint was marked to Police Station -
Khajrana, Indore and the Station House Officer registered an
F.I.R. against the present applicant and five others under Sections
420, 406 & 120-B of the IPC on 05.03.2020. Thereafter, present
applicant and other accused persons were arrested and information
to their relatives were given.
03. The police recorded the memorandum statement of the
present applicant under Section 27 of the Indian Evidence Act on
07.03.2020, according to which he has been running Uday
Intellicall Advisory Company with the help of employees.
Through telephone call, they used to advice their customer for sell
and purchase of shares in Share Market and charged them. His
Company is not having SEBI certificate, but having a Gumasta
License. The police seized attendance register of 13 employees,
registration certification under the Shop & Establishment Act,
memorandum of association and lease agreement.
04. Except the aforesaid memorandum and seized articles,
there is absolutely no investigation in this matter as to who has
been cheated by the present applicant in the name of investment or
sell or purchase of shares. Even the complainant has not made
allegation that he has been cheated by the present applicant by
way of advice for sell and purchase of the shares. On the basis of
only this limited material and memorandum statement, the police
filed a final report on 05.03.2020 in the court of magistrate.
Surprisingly, the learned Sessions Judge has framed the charges
under Sections 420, 406 of the IPC & Section 6(1) of M.P.
Nikshepkon Ke Hiton Ka Sanrakshan Adhiniyam and the same are
reproduced below:-
"01. आपन द नक 05.03.2020 क समय 19:12 बज ब-1 ईस 66
सकम नबर 94, ररग रड इ र, आरक कन खजरन , जजल इ र क अतगत #
उ य इनटल&क'ल एडवइजर& कपन क मललक/कमच# र&/सचलक हत ह-ए उकत
कमपन म0 लग1 स फन व इटरनट क मधयम स सपक# कर शयर मक5ट म0
एव अनय जगह रलश ननवश करन और ननवशक1 क अध9क लभश पपत करन
क ललय पललभत कर ननवशक1 क सथ छल कररत करन हत- उनस
बइमनप?वक
# रलश पपत करन क ललय ननवशक1 क बईमनप?वक # रपय
परर तत करन क आशय स शयर मक5ट म0 अध9क लभश प ह न क
पलभन त ह-य ननवशक1 क रलश बइमनप?वक
# ननवश करन हत- उतपररत कर
ननवशकगण स रलश पपत कर छल कररत ककय।
एEस कर आपन वह कFतय ककय, ज 9र 420 भ.द.स. क अतगत
#
डनय हE।
02. उकत द नक, समय व सथन पर आपन उ य इनटल&क'ल एडवइजर&
कपन क मललक/कमच # र&/सचलक हत ह-य कमपन म0 लग स फन व
इटरनट क मधयम स सपक# कर शयर मक5ट म0 एव अनय जगह रलश ननवश
करन क नम पर ननवशक1 दवर रलश कमपन म0 ननवश कर नयसत क गई
रलश क अपन उपयग म0 सपररवनतत
# कर आपरध9क नयसभग कररत ककय
एEस कर आपन वह कFतय ककय, ज 9र 406 भ.द.स क अतगत
# डनय हE।
03. उकत द नक, समय व सथन पर आप, ननवशक1 स उ य इनटल&क'ल
एडवइजर& कपन म0 ननवश करन क नम पर रलश पपत कर अध9क लभ न
क नम पर ननवशकेे दवर जम रलश कमपन म0 ननवश बतकर कपन म0
नयसत क गय रलश क लभश ननवशक1 क प न करन म0 असफल रह।
एEस कर आपन वह कFतय ककय, ज 9र 6 (1) म.प. ननकपक1 क दहत1
क सरकण अध9ननयम 2000 क अतगत
# डनय हE।
उकत सभ अपर9 नययलय क सजन म0 हE। एतद दवर आश त ह?J
कक आपक इस नययलय दवर उकत आरप1 म0 ववचरण ककय जय।"
05. In order to prove the charges against the applicant /
accused, there is absolutely no material in the charge-sheet. The
Gumasta License, which has been filed by the present applicant
shows that the Firm was registered as Call Centre. Not a single
investor came forward to make an allegation about cheating which
is a mandatory requirement for prosecution under Section 420 of
the IPC. So far as charge under Section 406 is concerned, same is
also very vague in nature and to establish or prove the charges,
there is no material available in the charge-sheet.
06. The Coordinate Bench of this Court in a similar facts and
circumstances in the case of Alka Shrivastava v/s The State of
Madhya Pradesh (M.Cr.C. No.23883 of 2020) quashed the F.I.R.
and subsequent proceedings vide order dated 22.09.2020.
Paragraphs - 31, 32, 33 & 34 are reproduced below:-
"31.Such proposition by the learned Public Prosecutor for
State is like putting cart before the horse. The police in
the present case has registered FIR not on the basis of
complaint of a victim and now seeks to find whether there
are any victims or not, which is absolutely against the
ethos of investigative processes.
32. We have seen that the provisions of IPC and PID Act
are not attracted prima faice in this case, that there is an
statutory bar against taking cognizance by Court for any
such offence, which is in the domain of SEBI Act, 1992,
which requires complaint to be filed by SEBI Board. This
case is squarely relates to breach of provisions of SEBI
Act, 1992 and SEBI Regulations, 2013 and only Special
Court is empowered to take cognizance on the basis of
complaint filed by SEBI Board. The police was not
authorized to register an FIR in such case because there is
a specific statutory bar in such matters.
33. What the police could have done was that bring to the
notice of SEBI Board the alleged violation being
committed by the applicant Company. After providing
vital information and inputs to the SEBI Court, the matter
would have been looked into by SEBI Board only and
appropriate complaint could have been filed by SEBI
Board before the competent Special Court. However,
instead of doing so, the police has embarked upon
registration of FIR in such a case and by doing so, has
travelled beyond the scope of its competence and
jurisdiction.
34. Consequently, the FIR bearing Crime No.05/2020,
registered at Police Station Crime Branch, Indore stands
quashed along with all the subsequent proceedings."
07. It is also important to mention here that police registered a
common F.I.R. against proprietor of three different Companies. It
is the duty of the trial Court to examine the charge-sheet in detail
before framing the charges whether any investigation has been
done and material is there in the charge sheet to establish the
charges. The charges should not be framed mechanically only on
the basis of allegations in the charge sheet.
08. The Apex Court in the case of Shashikant Sharma &
Others v/s The State of Uttar Pradesh & Another [Criminal
Appeal @ SLP (Criminal) No.5323 of 2023] has held as under:-
"There cannot be any quarrel with the principles laid
down in the judgments cited by the State Counsel in the
written submissions that at the stage of framing of
charges, this Court is not required to undertake a
meticulous evaluation of evidence and even grave
suspicion is sufficient to frame charge. Nevertheless,
there is also a long line of precedents that form the
admitted evidence of the prosecution as reflected in the
documents filed by the Investigating Officer in the report
under Section 173 CrPC, if the necessary ingredients of
an offence are not made out then the Court is not
obligated to frame charge for such offence against the
accuse. Reference in this regard may be made to the
judgment rendered by this Court in the case of Suresh @
Pappu Bhudharmal Kalani v/s State of Maharashtra
reported in AIR 2001 SC 1375."
09. In view of the above, the impugned order dated
19.10.2023 framing the charges is hereby quashed. The applicant
is discharged from the offence punishable under Section 420, 406
of the IPC & Section 6(1) of the M.P. Nikshepkon Ke Hiton Ka
Sanrakshan Adhiniyam.
10. With the aforesaid, Criminal Revision stands allowed.
(VIVEK RUSIA)
JUDGE
Ravi
Date: 2023.12.06 18:43:07 +05'30'
