Gujarat High Court
State Of Gujarat vs Afroz Mohmed Hasanfatta on 24 May, 2022
Author: B.N. Karia
Bench: B.N. Karia
R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 536 of 2021
With
CRIMINAL MISC.APPLICATION (FOR JOINING PARTY) NO. 1 of 2022
In R/CRIMINAL REVISION APPLICATION NO. 536 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== STATE OF GUJARAT Versus AFROZ MOHMED HASANFATTA ========================================================== CRIMINAL REVISION APPLICATION NO.536 OF 2021 Appearance:
MR MITESH AMIN, LEARNED PUBLIC PROSECUTOR WITH MR HARDIK SONI, APP for the Applicant-State MR VIKRAM CHAUDHARY, SENIOR ADVOCATE WITH MR CHETAN K PANDYA(1973) for the Respondent(s) No. 1
------------------------------------------------------------------------------------------------------- CRIMINAL MISC. APPLICATION NO.1 OF 2022 Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR. MANAN SHAH, Advocate for the applicant, MR MITESH AMIN, LEARNED PUBLIC PROSECUTOR WITH MR HARDIK SONI, APP for the Respondent no.1-State MR VIKRAM CHAUDHARY, SENIOR ADVOCATE WITH MR CHETAN K PANDYA(1973) for the Respondent(s) No. 2 Page 1 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA Date : 24/05/2022 CAV JUDGMENT IN CR.R.A.-536/2021
1. The present applicant-State of Gujarat, by preferring this Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C." for short), has challenged the order dated 16.04.2021 passed by the learned Principal District and Sessions Judge, Ahmedabad (Rural) in Sessions Case No.181 of 2017 below Exh.56 by discharging the respondent herein from the charges levelled against him.
2. The short facts of the present case may be referred as under:
2.1 The complaint was filed at DCB Police Station, Surat which was registered as FIR No.C.R.No.16/2014 for the offence punishable under Sections 120-B, 420, 465, 497, 468, 471 and 477-A of the Indian Penal Code (hereinafter referred to as "the IPC" for short). As per the case of the prosecution, the respondent had committed the fraud by developing the Page 2 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 bogus and fraudulent transactions worth of Rs.104,60,99,082/-. The said forged bill was produced in the bank and the respondent has committed scam of huge amount as referred above to Dubai and Hongkong. As per the case of the prosecution, the respondent is a main conspirator who floated the bogus company by appointing the several persons as a Director and within short span of time, the huge financial fraud was committed. After detailed investigation, chargesheet was filed against two persons viz. (i) Sunil Agrawal and (ii) Ratan Agrawal on 1808.2014. The names of Madanlal Jain and Afroz Fatta were shown as suspect.
Thereafter, on 20.08.2014, the respondent was arrested in the said FIR being No.16/2014 by the police officers of DCB Police Station, Surat. Thereafter, statement of Jatin Dilipkumar Shah, Manager of P. Umeshchandra and Company, statement of Ashwinbhai Haribhai Patel, Manager of P. Umeshchandra and Company, statement of Kalidas Natverlal Patel, Branch Manager in S. Babulal and Company, statement of Urvish Dililpbhi Shah, Partner of P. Umeshchandra and Company as well as statement of Harshad Maganlal Modi, cheque discounter, were recorded. On 30.09.2014, first supplementary chargeshet was filed against Madanlal Jain Page 3 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 and the respondent and Bilal Galani were shown as suspect. The statements of other persons viz. Amrutbhai Navratanial Patel, Jafar Mohmad Hasanfatta, elder brother of the respondent, Samir Jiker Godil, were recorded by the Investigating Agencys and second supplementary chargesheet was filed against the present respondent and Bilal Galani. Thereafter, on 15.11.2014, the learned Chief Judicial Magistrate, Surat took cognizance of chargesheet filed against the respondent and criminal case was registered. On 24.12.2014, the bail application preferred by the respondent was rejected by the learned Sessions Court at Surat. The respondent herein approached this Court with a prayer to grant to release him on regular bail in connection with the FIR being I-C.R.No.16 of 2014 in Criminal Misc. Application No.2191 of 2015 and he was granted regular bail on 05.03.2015. The respondent herein also filed one Criminal Revision Application No.264 of 2017 before this Court on 20.03.2017 against the order taking cognizance by the learned Chief Judicial Magistrate Court, Surat. The said Criminal Revision Application No.264 of 2017 was allowed by this Court vide order dated 03.05.2017 and the respondent was discharged by quashing and setting aside the order of Page 4 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 cognizance. Criminal Appeal No.224 of 2019 was preferred by the State of Gujarat against the impugned judgment and order dated 03.05.2017 passed by this Court in Criminal Revision Application No.264 of 2017 which was allowed by the Hon'ble Apex Court on 05.02.2019. It was observed by the Hon'ble Apex Court that the Trial Court should proceed further in accordance with law. Thereafter, on 18.02.2020, third supplementary chargesheet was filed against Prafful Patel. The respondent herein filed an application below Exh.56 in Special Case No.181 of 2017 with a prayer to discharge him under Section 227 of the Cr.P.C. On 01.12.2020, relying on the chargesheet papers more particularly of the 3 rd Supplementary chargesheet, said application was allowed by the learned Designated Special Court under PMLA at Ahmedabad on 16.04.2021. Hence, this Criminal Revision Application is preferred by the present applicant-State of Gujarat.
3. Heard Mr.Mitesh Amin, learned Public Prosecutor appearing with Mr.Hardik Soni, learned Additional Public Prosecutor for the applicant-State of Gujarat and Mr.Vikram Chaudhary, learned Senior Advocate appearing with Mr.Chetan K. Pandya, learned advocate for the respondent. Page 5 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022
4. Learned Public Prosecutor for the applicant-State of Gujarat has submitted in his arguments that the impugned judgment and order passed by the Court-below Exh.56 dated 16.04.2021 is against the provisions of law, illegal, improper and against the criminal jurisprudence. It is further submitted that during the detailed investigation, total 848 duplicate and concocted documents having the forged and fabricated signature of the Directors of the Company as well as the Indian Custom Department were found and the respondent - accused along with the other co-accused had open 9 different accounts in ICICI Bank and from the said account, the huge amount was siphoned off in Foreign Bank Account. It is further submitted that the respondent is a prime accused of the offence and there are many important persons whose statements were recorded by the learned Judicial Magistrate First Class under Section 164 of the Cr.P.C. of the Directors viz. (i) Shailesh Ramesh Patel, (ii) Aniket Ashok Aambekar, (iii) Sachin Sutaram Savli and (iv) Sagar Vitthal Kambleas. It is further submitted that the respondent - accused along with other co-accused viz. Prafulbhai Mohanbhai Patel had open and operated various bank accounts in Axis Bank or ICIC Bank and all the accounts were used for illegal transfer of the Page 6 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 money. It is further submitted that from 06.01.2014 to 07.03.2014, the respondent had transferred the huge amount of Rs.7,00,00,000/- in his account and also transferred of Rs.3,00,00,000/- in his real brother viz. Jafar Hasanfatta. It is further submitted that total 6 accused were arrested and the chargesheet was filed against them. Learned Public Prosecutor has relied upon the judgment passed by the Hon'ble Apex Court in the case of M.E. Shivalingamurthy Vs. CBI reported in 2020(2) SCC 768 and submitted that version put by the accused is the matter of discharge and which could not be looked into while considering the discharge application. It is further submitted that the learned Trial Court has passed the lengthy order, but it is not on the merit and none of the material submission of the learned Public Prosecutor as well as the Investigating Officer were considered or discussed. While referring the judgment of the Hon'ble Apex Court in Criminal Appeal No. 224 of 2019 between the same parties, learned P.P. has submitted that for the issuance of process against the accused, the Hon'ble Apex Court has observed that it has to be seen only whether there is sufficient ground for proceedings against the accused. The Court is not required to weigh the evidentiary value of the materials on record. The Page 7 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 Court must apply its mind to the allegations in the chargesheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. It was further observed by the Hon'ble Apex Court that this Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. It is further submitted that in the judgment, the Hon'ble Apex Court has observed that the Court is not required to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex-facie defence such as legal bar or if in law the accused is not liable. It is further submitted that at the time of trial, the accused has to establish his defence plea that the money is by way of receipt in the normal course of his business dealings. It is further submitted that the bank statement produced by the prosecution showing the deposit of amount in the account of the respondent - accused and M/s. Nile Trading Corporation and receipt of the amount by the respondent's brother are the prima facie material showing that there are sufficient grounds for proceedings against the accused and that the evidence and materials so produced by the prosecution cannot be brushed Page 8 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 aside on the possible defence which the respondent is taking that such credits are in the regular course of his business dealings. It is further submitted that during the trial, it is for the prosecution to show how these money transactions are linked to establish that the respondent was collecting money from remitters and transmitting the same to Prafulbhai Patel through Angadias. It is further submitted that the Court is not required to go into the merits of the evidence collected and examine whether they are incriminating the accused or not. It is further submitted that second supplementary chargesheet, number of materials like statement of witnesses, bank statement of the respondent - accused and his company Nile Trading Corporation and other bank statement, call detail records and other materials were placed on record and the learned Magistrate was satisfied that there are sufficient grounds to proceed against the respondent and had issued the summons. It is further submitted that the Hon'ble Apex Court has quashed the order passed in Criminal Revision Application No.264 of 2017 vide order dated 05.02.2019 and confirmed the order of learned Magistrate taking cognizance of the second supplementary chargesheet dated 15.11.2014 in Criminal Case No.62851 of 2014. Hence, it was requested by Page 9 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 learned Public Prosecutor for the applicant-State to quash and set aside the order passed below Exh.56 dated 16.04.2021 passed by the learned Principal District and Sessions Judge, Ahmedabad (Rural) in Sessions Case No.181 of 2017.
5. Learned advocate for the respondent has tried to justify this Court on the issue of process under Section 204 of the Cr.P.C. as well as discharge the accused under Section 227 of the Cr.P.C. It is further submitted that if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceedings and the case appears to be a summons case, he shall issue his summons for the attendance of the accused, or in a warrant case, he may issue a warrant, or if he thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such Magistrate. It is further submitted that while discharging application under Section 227 of the Cr.P.C., the Court will consider the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, if the learned Judge considers that there is no sufficient ground for proceedings against the accused, he shall discharge the accused and record his reasons for so doing. It is further submitted that in the earlier round of litigations, at Page 10 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 the time of issuance of summons, the learned Magistrate taking cognizance of an offence of the opinion that there are sufficient grounds for the proceedings and summons was issued to the respondent which was quashed and set aside by this Court in Criminal Revision Application No.264 of 2017 and later on, the Hon'ble Apex Court vide order dated 05.02.2019 in Criminal Appeal No.224 of 2019 set aside the order of this Court. It is further submitted that in Criminal Appeal No.224 of 2019, the Hon'ble Apex Court in Paragraph- 21 has observed that at the time of issue of process rate of proof is not to be strictly followed. It is further submitted that when processes were issued, Prafullbhai Patel was a witness and he was not an accused. It is further submitted that now Prafullbhai Patel has been mentioned as an accused by Additional Chargesheet No.80/2020 and hence, statement of Prafullbhai Patel is now not admissible in evidence according to Evidence Act. It is further submitted that the respondent has nothing to do with the seven firms and there is no accusation that respondent had formed these companies or they are in control of respondent or he is managing the bank accounts of these companies. It is further submitted that only and only the statement of Prafullbhai Patel was against the Page 11 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 respondent, who is now not admissible according to Evidence Act because now, Prafullbhai is not a witness but he is an accused now. It is further submitted that all the charges against the respondent are surrounding the statement of Prafullbhai alone which is the basis of charges against respondent. It is further submitted that now this basis has become inadmissible in evidence and if it is removed than, there is no case against the respondent. It is further submitted that perusing the second additional chargesheet, Pukhraj Muthha had accepted some amount from some companies and Pukhraj Muthha is a partner of M/s. Nature Trading Company and is a Director of Gangeshwar Marketable Private Limited. It is further submitted that Muthha or both of these companies have not been mentioned as accused in second chargesheet and in absence of oral or documentary evidence, charge cannot be framed against respondent for having accepted Sixteen Crore Rupees through banking channel from above companies and in absence of evidence, charge cannot be framed against him. It is further submitted that as per the case of the prosecution, the respondent had accepted this amount towards commission, but no witnesses were available with the prosecution. It is further submitted Page 12 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 that audit report of these companies regarding respondent also mention payment of such amount, which is a part of the chargesheet. There is no circumstantial evidence to show that respondent has done forgery, cheating, or a criminal conspiracy nor is there any evidence that even shows that respondent abetted in any offence or suggested it. It is further submitted that it is not the case of prosecution that respondent had shown entry of forged bill or such amount was deposited with his direct or indirect instruction. It is further submitted that perusing the statements of partners, directors mentioned in the chargesheet, there is nothing against the respondent as the respondent has not been mentioned as accused in the chargesheet and first chargesheet as well as F.I.R. It is further submitted that there is no direct or circumstantial evidence or material against respondent and therefore, the respondent cannot be implicated with the offence. It is further submitted that no ingredients of this offence are prima facie found against the respondent and there being no material to frame charge against respondent, the Trial Court has rightly allowed the application Exh.56. Referring the statement of material witnesses of the prosecution, it is submitted that there is no statement Page 13 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 involving the respondent with the offence and no case is made out against the respondent. It is further submitted that the respondent is not involved in the criminal conspiracy whatever was done by Agrawal brothers was done on the behest of Madanlal Jain. It is further submitted that it is not found that the respondent had prepared the forged documents nor it is found that the respondent had cheated or committed fraud and done a dishonest act. It is further submitted that there is no sufficient material available with the prosecution or criminal conspiracy. It is further submitted that in a previous statement of Prafullbhai Patel recorded on 01.08.2014, he was a star witness and base of the whole case of prosecution. It is further submitted that now Prafullbhai Patel has become an accused of this offence. It is further submitted that in a reply filed by the Deputy Police Commissioner, Exh.58, status of Prafullbhai Patel has been shown as an accused and supplementary chargesheet -3 was filed against him on 01.07.2020. The witness Prafull Patel has now become accused and hence statement of Prafull Patel cannot be perused by this Court. In support of his arguments, he has relied upon the judgment in the case of Haricharan Kurmi V/ s. State of Bihar reported in AIR 1964 SC 1184, wherein the Page 14 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 Hon'ble Supreme Court has observed in Paragraph-17 as under:
"17. It is true that the confession made by Ram Surat is a detailed statement and it attributes to the two appellants a major part in the commission of the offence. It is also true that the said confession has been found to be voluntary and true so far as the part played by Ram Surat himself is concerned, and so, it is not unlikely that the confessional statement in regard to the part played by the two appellants may also be true and in that sense, the reading of the said confession may raise a serious suspicion against the accused. But it is precisely in such cases that the true legal approach must be adopted and suspicion, however grave, Must not be allowed to take the place of proof. As we have already indicated, it, has been a recognized principle of the administration of criminal law in this country for over half a century that the confession of a co- accused person cannot be treated as substantative evidence and tan be pressed into service only when the court is inclined to Accent other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible, from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals."
6. Ultimately, it is requested by learned advocate for the Page 15 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 respondent to confirm the impugned judgment and order passed by the Trial Court and dismiss this Criminal Revision Application.
7. In turn, learned Additional Public Prosecutor for the applicant-State has replied in detail and relied upon the certain documents including the case under PMLA and submitted that sufficient evidence is available against the present respondent to involved in the offence as registered against him. He has referred the number of documents produced at a later stage after completion of the arguments of the respondent. As certain documents relied upon by the prosecution and produced at a later stage were not part of the present offence as per the prosecution case, and therefore, this Court has not considered such documents which were not part of the chargesheet and are produced for the first time before this Court.
8. Thereafter, learned advocate for the respondent has further submitted that the evidence collected during the course of investigation in one case cannot be used as evidence in another case. It is further submitted that material collected during the investigation of a particular case is to be used for Page 16 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 the purposes of that case only and cannot assume any relevance for any other purpose and cannot be cited as an admissible material before the Court of law for some other case. It is further submitted that in the case under PMLA, the investigation into an offence was carried out under a different statute which has special provisions and a different procedure. It is further submitted that the statements therein were recorded in terms of Section 50 of the PMLA, wherein there is an obligation to state truth and the recording of statement is a judicial proceedings. It is further submitted that unlike PMLA, the investigation into the offences in the FIR in question are under the provisions of Cr.P.C., where the statements are recorded in terms of Section 161 of the Cr.P.C. etc. and which is not even signed by the maker thereof. The admissibility of the said statements is an entirely different perspective. It is further submitted that a complaint filed under PMLA is not a relevant factor for either framing a charge or discharge the accused. The fact of launching prosecution in another case cannot have any bearing on the merits of the present case. That the case under PMLA case would be governed by its own considerations, independent questions of law or facts which have no applicability to the present case. In Page 17 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 support of his arguments, learned advocate for the respondent has relied upon the judgment in the case of State of Orissa Vs. Debendra Nath Padhi reported in (2005) 1 SCC 568 and submitted that at the stage of charge reference could only be made to the material which is part of the chargesheet and no one can travel beyond that.
9. Having heard Mr.Mitesh Amin, learned Public Prosecutor appearing with Mr.Hardik Soni, learned Additional Public Prosecutor for the applicant-State of Gujarat as well as Mr.Vikram Chaudhary, learned Senior Advocate appearing with Mr.Chetan K. Pandya, learned advocate for the respondent and perused the material placed before this Court, except the documents or the statements under PMLA complaint filed by the applicant against the respondent in the different matters, while exercising the powers under Section 227 of the Cr.P.C., the Hon'ble Apex Court, in the case of Dilawar Balu Kurane Vs. State of Maharashtra reported in (2002) 2 SCC 135, has observed in Paragraph-12 as under:
"In exercising powers under Section 227 Cr.P.C., the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials Page 18 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him gave rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 Cr.P.C., the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has no consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
10. In another case i.e. Century Spinning and Manufacturing Company Limited and others Vs. State of Maharashtra reported in (1972) 3 SCC 282, the Hon'ble Apex Court while discussing the scope of Section 251(A) of the Cr.P.C. observed in Paragraph-16 as under:
"16. We may first dispose of the argument on the meaning and scope of Section 251(A), Cr.P.C. this section reads:
"(1) When, in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished.
(2) If, upon consideration of all the documents referred to in Page 19 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. (3) If, upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(4) The charge shall then be read and explained to the accused and he shall be asked whether he is guilty or claims to be tried.
(5) If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. (6) If the accused refuses to plead, or does not plead, or claims to be tried, the Magistrate shall fix a date for the examination of witnesses.
(7) On the date so fixed the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution.
Provided that the magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined, or recall any witness for further cross-examination.
(8) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any documents or Page 20 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing:
Provided that, when the accused has cross-examined or had the opportunity of cross-examination any witness after the charge is framed, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the purpose of justice. (10) The Magistrate may, before summoning any witness on such application under sub-section (9), require that his reasonable expenses incurred in attending for the purpose of the trial be deposited in Court.
(11) If in any case under this section in which a charge has been framed, the Magistrate finds the accused not guilty he shall record an order of acquittal.
(12) Where in any case under this section, the Magistrate does not proceed in accordance with the provisions of Section 349 or Section 562, he shall, if he finds the accused guilty, pass sentence upon (him) according to law.
(13) In a case where a previous conviction is charged under the provisions of Section 221, sub-section (7) and the accused does not admit that he has been previously convicted as alleged in the charge, the magistrate may, after he has convicted the said accused under sub-section (5) or, sub- section (12), take evidence in respect of the alleged previous conviction, and shall record a finding thereon." Though at the bar of this Court as also in the High Court considerable arguments and discussion centered round this point, in our opinion, the construction and meaning of this Page 21 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 section so far as relevant for our purpose does not present any difficulty. Under sub-section (2), if upon consideration of all the documents referred to in Section 173, Cr.P.C., and examining the accused, if considered necessary by the Magistrate and also after hearing both sides, the Magistrate considers the charge to be groundless, he must discharge the accused. This sub-section has to be read along with sub-section (3), according to which, if after considering the documents and hearing the accused, the Magistrate thinks that there is ground for presuming that the accused has committed an offence triable under Chapter XXI of the Code within the Magistrate's competence and for which he can punish adequately he has to frame in writing a charge against the accused. Reading the two sub-sections together, it clearly means that if there is no ground for presuming the accused has committed an offence, the charges must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charges. This necessarily depends on the facts and circumstances of each case and the Magistrate is entitled and indeed has a duty to consider the entire material referred to in sub-section (2). On the view that we have taken, we do not consider it necessary to refer to the various decided cases cited at the bar of this Court or discussed in the judgment of the High Court."
11. It appears from the record that after filing an application Exh.56 by the respondent under Section 227 of the Cr.P.C., an affidavit of the Investigating Officer was filed at Exh.61 and reply was filed vide Exh.58. It was stated in the reply as well as affidavit filed by the Investigating Officer that the Page 22 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 respondent was living at Surat and running proprietary firms M/s. Nile Industries Pvt. Ltd. and M/s. Nile Trading Corporation. The respondent along with other co - accused were living at Mumbai, Madanlal Manekchand Jain and other co-accused had hatched a criminal conspiracy to cheat Government of India of crores of Rupees and had created 45 different companies/partnership firms/ proprietorship firms and with the help of other accused had induced witnesses in some of the companies and names of the witnesses were given as [1] Shailesh Rameshbhai Patel [2] Aniket Ashok Ambekar [3] Sachin Sitararm Salvi [4] Manoj Bhaskar Kamble and [5] Sagar Vitthal Kambe, who were paid Rs.10 to 15 Thousand Rupees per year without doing any work as side income and for that had taken their, photographs, I.D. proof and resident proof and had made them dummy Directors of [1] R.A. Distributors Pvt. Ltd. [2] Riddhi Exim Pvt. Ltd. [3] M.B. Offshore Distributors Pvt. Ltd.[4] Maa Mumbadevi Gems Pvt. Ltd. and [5] Hem Jewels Pvt. Ltd. and had opened different current accounts of [1] R.A. Distributors Pvt. Ltd. [2] Maa Mumbadevi Gems Pvt. Ltd. [3] Hem Jewels Pvt. Ltd. in ICICI Bank Nanpura Branch and of [4] Riddhi Exim Pvt. Ltd and (5) M.B. Offshore Distributors Pvt. Ltd., regarding which Page 23 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 statements of directors Shailesh Ramesh Patel, Aniket Ashok Ambekar, Sachin Sitaram Salvi, Sagar Vitthal Kamble, Manoj Bhaskar Kamble and C.A. Surendra Ambar Ghareva, Accountant Amit Mahesh Agrawal, Kandarp Upadhyay, employee of D.C.B. Bank and witness Rajnikant Ishverlal Jariwala were recorded. According to the prosecution case, respondent Afroz Hasanfatta along with accused Madanlal Jain and Bilal HarunGilani and others had together imported cut polished diamonds from Dubai and Hongkong in [1] R.A. Distributors Pvt. Ltd. [2] Maa Mumbadevi Gems Pvt. Ltd. [3] Hem Jewels Pvt. Ltd. [4] Riddhi Exim Pvt. Ltd. [5] M-B. Offshore Distributors Pvt. Ltd [6] Trinetra Trading Company Pvt. Ltd. and [7] Ramshyam Exports Pvt. Ltd. company in the year 2010 to 2011 for which they had prepared a forged bill of entry of Custom House Agent (CH.A.) B.K.Freight Forwards Pvt. Ltd. and had affixed forged signature and seals of Surat and Mumbai Customs Officers and had forged their signatures and had forged signatures of directors of above companies [1] Shailesh Rameshbhai Patel [2] Aniket Ashok Ambekar [3] Sachin Sitaram Salvi [4] Manoj Bhaskar Kamble and [5] Sagar Vitthal Kamble and had presented the forged 848 bills and bill of entries between 28.10.2013 to 7.3.2014 in ICICI Bank Page 24 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 Ringroad Branch and it was learnt during investigation that they had illegally sent Rs.5,118,03,51,404/- to [1] Al Almas FZ Ltd Dubai [2] Al Almas FZE Ltd. Hongkong [3] Al Miginas FZE Ltd Hongkong [4] Al Saba General Trading FZE Dubai [5] Bin SabtJewellery L.L.C. Ltd. Hongkong [6] Chau Shan Trading Ltd. Hongkong [7] Comet Corporation Ltd. Hongkong [8] Cornell Trading (HK) Ltd. Hongkong [9] Crown Exim FZE U.A.E. [10] Daimur Gems Jewellery (LLC) Ltd. Hongkong [11] Mabrook Trading FZE Dubai [12] Mabrook Trading FZE Hongkong [13] Nippon Incorporation Ltd. Hongkong. It was also found during the investigation that accused in this matter had transferred illegally abroad of which some amount was deposited cash by accused Afroz Hasanfatta through co- accused Prafullbhai Mohanbhai Patel in accounts in Axis Bank of [1] Arzu Enterprise (2] G.T. Traders [3] Vandna And Company [4] JashTraders and in ICICI Bank in accounts of companies [1] Trinetra Trading Company Pvt. Ltd. [2] Ramshyam Exports Pvt. Ltd. [3] MB. Offshore Distributors Pvt. Ltd. [4] Riddhi Exim Pvt. Ltd. and [5] R.A. Distributors Pvt. Ltd. and afterwards these amounts were transferred in the accounts of [1] R.A. Distributors Pvt. Ltd. [2] Maa Mumbadevi Gems Pvt. Ltd. [3] Hem Jewels Pvt. Ltd. [4] Riddhi Exim Pvt. Page 25 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 Ltd. [5] M.B. Offshore Distributors Pvt. Ltd. [6] Trinetra Trading Company Pvt. Ltd. and [7] Ramshyam Exporters Pvt.Ltd. It was also found during investigation that for execution of this scandalous offence, accused Afroz Hasanfatta had deposited Rs.7,00,00,000/- from Axis Bank Account of Natural Trading Company from the companies/firms created by accused on 06.01.2014 to 07.03.2014 in his account No.364101010011163 in Union Bank and had deposited Rs.3,00,00,000/- in the account No. 364101010020083 of his true brother Jafar Mohammed Hasanfatta in Union Bank of India. It was found during investigation that, for execution of this hawala scam and this offence, from the account of Gangeshwar Mercantile Pvt. Ltd. out of the companies/firms created by accused, in Axis Bank, accused Afroz Hasanfatta had transferred Rs.6,31,19,941/- on 17.02.2014 by RTGS in the bank Account No. 672320013409 in HDFC Bank of Nile Trading Corporation a proprietorship firm of accused Afroz Hasanfatta and after that between 25.2.2014 to 06.03.2014, respondent had withdrawn Rs.4,65,00,000/- by cheque and RTGS and on 18.02.2014, he had deposited Rs.1,15,00,000/- by RTGS in the account of Fojiya w/o Samir Jikar Godil in Union Bank. It is mentioned Page 26 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 in the statement that supplementary chargesheet-IIl was filed against Prafullbhai Mohanbhai Patel on 17.02.2020. Utpal Devendrabhai Dave, Cluster Branch Manager of ICICI Bank Limited Ringroad Branch, Surat had given a complaint that, [1] Shailesh Rameshbhai Patel residing at: Room No. 32, Second Floor, 9/19, B, Dr. Vegas Street, Kavell Cross Lane, Mumbai - 400002 and [2] Aniket Ashok Ambekar Residing at:
872, G.S.Subedar, Ramji Ambedkarnagar, AG. Khan Road, Worli, Mumbai - 400018, Directors of M/s R.A. Distributors Pvt. Ltd having its registered office at 6/1943, Office No. 303, Cabin No.1, Third Floor, Navkar Building, Opp. Kabir Mandir, Mahidharpura, Surat had hatched a criminal conspiracy to cheat with Government of India and as a part of this conspiracy had imported rough diamond and cut polished diamonds from abroad and had stated that they had sold them in the Surat and Mumbai local market and on 13.12.2013, had opened a current account in the name of R.A. Distributors Pvt. Ltd. in ICICI Bank, Shyam Chambers, Opp.
Sub Jail, Surat branch and had presented forged 17 Bill of Entries (BOE's) of different companies for having imported rough diamonds and cut polished diamonds from Dubai and Hongkong and had affixed forged signature and seal of custom Page 27 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 officers and knowing-fully well that, these BOE's were forged and fraudulent had presented in the Ringroad Branch, Surat of ICICI Bank as genuine and had transferred Rs. 104,60,99,082/- between 13.12.2013 to 24.02.2014 to [1] Mabrook Trading FZE Dubai [2] Nippon Incorporation Ltd. [3] Cornell Trading (HK) Hongkong [4] Al Almas FZE Ltd Hongkong [5] Al Saba General Trading FZE Dubai [6] Daimur Gems Jewellery (LLC) LTD Hongkong and had done offence of cheating with Government of India, hence D.C.B.Police Station registered an offence I-16/2014 on 11.4.2014 under Sections 420, 465, 467, 471, 477-A and 120(b) of I.P.C. It was further stated by the complainant that during investigation of this offence, 831 bogus bill of entries were submitted by them in the bank bearing forged signature and seals of custom officers of [1] R.A. Distributors Pvt. Ltd. [2] M.B. Offshore Distributors Pvt. Ltd. [3] Riddhi Exim Pvt. Ltd. [4] Maa Mumbadevi Gems Pvt. Ltd. [5] Hem Jewels Pvt. Ltd. [6] Ramshyam Exports Private Ltd. [7] Trinetra Trading Company Pvt. Ltd. and had transferred Rs.5013,33,84,217/- to [1] Mabrook Trading FZE Dubai [2] Al Saba General Trading FZE Dubai [3] Oracle General Trading FZE Dubai [4] Mabrook Trading FZE Hongkong [5] Al Almas FZE Ltd Hongkong [6] Nippon Page 28 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 Incorporation Ltd. Hongkong [7] Cornell Trading (HK) Ltd. Hongkong [8] Daimur Gems Jewellery (LLC) Ltd. Hongkong [9] Bin Sabt Jewellery L.C.C. Ltd. Hongkong [10] Comet Corporation Ltd. Hongkong [11] Al Miginas FZE Itd. Hodgkin [12] Al Johara FZE Ltd. Hongkong [13] Chau Shan Trading Ltd. Hongkong at Dubai and Hongkong. If we consider the affidavit of Deputy Police Commissioner, he has stated that statements of following witnesses: Shaileshbhai Patel, witness Aniket Ambekar, Sachin Sitaram Salvi, Sagar Vitthal Kamble, Manoj Bhaskar Kamble, C.A. Surendra Amber Ghareva, Accountant Amit Mahesh Agrawal, employee of D.C.B. Bank, Kandarp Upadhyay, witness Rajnikant Ishverlal Jariwala were recorded and prosecution has relied upon on their statements. The Trial Court has considered the contents of the statements of the witnesses as stated above. For connecting the present accused in the offence, nothing is stated by the above stated witnesses connecting him with the offence. The Trial Court has referred the statements of witnesses in his order how they had a meeting with the Director and others, photographs and PAN card, voter I.D. and mobile number were given to the witnesses viz. Sunil Agawal, etc. Nothing is found from the statement of any witnesses that on the instruction of the Page 29 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 respondent, they had opened bank account or the respondent had registered a company or firm. Further, from the statements of Chartered Accountant, accountant or bank officer, no facts were found linking the respondent with the alleged offence. However, Babubhai Kanjibhai Patel was a partner of angadiya firm S.Babulal. Pravinbhai Patel, whose statement was recorded on 11.08.2014. Further, it appears that Pravinbhai Patel and Maheshbhai Patel were the office Managers and as per their statements, business of parcels and post transaction of small amounts in cash is undertaken. As per their statement, it was learnt that, cash transaction was undertaken for which receipt was given. This witness does not know a single persons from Prafullbhai Patel, Madanlal Jain, Afroz Fatta, Sunil Agrawal, Narendra Jain, Mithalal Jain, Ratan Dipak Agrawal because he does not sit on the angadiya firm. From the statement of this witness also, it does not transpire that the respondent had undertaken transactions of diamonds or cash. This witness has even refused to identify the respondent also. Another witness Urvishbhai Shah was doing the business of angadiya firm P. Umeshchandra and Company and there were two partners of this firm and there were about fifty branches of it. He does not know Madanial Page 30 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 Jain. On making inquiry in respect of the respondent and Amit @ Bilal Gilani, he has stated that he does not know these two persons nor had he contacted them till today. From the statement of these witnesses also, nothing is found that the respondent had undertaken any such transactions. None of the witnesses have stated anything against the respondent involving him with the offence. It can be said from these witnesses that no prima facie case is made out against the respondent involving him in criminal conspiracy also. None of the witnesses have stated in their statement that the respondent had prepared any forged document or had cheated by doing fraud. There is nothing on record to show that criminal conspiracy was hatched by the respondent herein along with other co-accused persons. Out of above said witnesses, none of the witnesses was working according to the instructions of respondent or respondent had made anybody director. Out of the above seven companies, none of the company is of respondent and such facts are acceptable. There is nothing on record in the chargesheet papers that the respondent had created any private limited company or partnership firm and statements of the Directors were also recorded, wherein also involvement of the respondent was not Page 31 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 found from the chart described. It appears that all these companies were managed by Madanlal Jain. There is nothing in the chargesheet papers that the present respondent had prepared bogus bill of entry through which monetary transactions were undertaken and he had undertaken transactions with these seven companies who had created these bogus bill of entries and had sent the money or had undertaken transactions with them. Further, it appears that statement of Prafullbhai Patel was recorded on 01.08.2014 and he was a star witness in the present case as he was the only basis of the whole case of the prosecution. Now Prafullbhai Patel has become an accused of this offence. In the reply Ex. 58 filed by Deputy Police Commissioner, status of Prafullbhai Patel has been shown as an accused. Further, it appears that on 01.07.2020, a supplementary chargesheet -3 was filed against him. Under the circumstances, statement of Prafullbhai Patel cannot be perused by this Court. The Hon'ble Supreme Court in the case of Haricharan Kurmi V/s. State of Bihar (supra) has observed in Paragraphs-17 and 28 as under:
"17. It is true that the confession made by Ram Surat is a detailed statement and it attributes to the two appellants a major part in the commission of the offence. It is also true that Page 32 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 the said confession has been found to be voluntary and true so far as the part played by Ram Surat himself is concerned, and so, it is not unlikely that the confessional statement in regard to the part played by the two appellants may also be true and in that sense, the reading of the said confession may raise a serious suspicion against the accused. But it is precisely in such cases that the true legal approach must be adopted and suspicion, however grave, Must not be allowed to take the place of proof. As we have already indicated, it, has been a recognized principle of the administration of criminal law in this country for over half a century that the confession of a co- accused person cannot be treated as substantative evidence and tan be pressed into service only when the court is inclined to Accent other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible, from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals.
28. In addition to that Honourable High Court in Kandhal Sharman Jadeja Vs State of Gujarat, Special Criminal Application No. 740/ 2015 dt. 21.12.20 in oral order has held that:
[10] At this stage, this court would like to refer to the decision Page 33 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 gendered by this Court in the case of Suresh Chhotalal Verma (supra.), wherein this Court has observed in para 4 as under: [4] Record of the lower court has been examined, and it is found that except the statement of the co-accused No.1, there is no other material against the revisionist. That statement was made by accused No.1 during investigation to the police. For all purposes, it can be said that to be mere statement under Section 161 of I.P.C., statement under Section 161 of Cr.P.C., cannot be used as substantive evidence during the trial against the co-accused. It cannot be said to be a confession of a co- accused which can be used against another co-accused. For that also, formalities are required to be observed, namely the investigating officer should have recorded the confession by taking requisite precautions that the same is recorded as confession of the co-accused. The statements of the witnesses recorded during the course of the investigation did not in any way implicate the revisionist in the proceeding pending before the Court below."
12. Considering the judgment as referred above of the Hon'ble Apex Court, Prafullbhai Patel being a co-accused, his statement cannot be considered to involve the present respondent in the offence or cannot be read against him. In the earlier round of litigation, before the Hon'ble Apex Court in Criminal Appeal No.224 of 2019, Prafullbhai Patel was a star witness of the prosecution and thereafter, position was changed and he was stated as accused by filing third Page 34 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 supplementary chargesheet by the prosecution. Except statement of Prafullbhai Patel, no other witnesses have stated anything against the respondent as alleged by the prosecution for illegally sending money abroad. Another witness viz. Pravinbhai Patel, manager of S.Babulal Angadiya firm and statement of Kelidas Natverlal Patel, branch manager of angadiya firm S. Babulal, Jatin Dilipkumar Shah and company manager of P. Umeshchandra and Company dated 22.08.2014, statement of Ashvinbhai Patel, manager of P. Umeshchandra Company, statement dated 27.09.2014 of cheque discounter Harshadbhai Modi, statement dated 09.10.2014, of AmrutbhaiNavratanlal Patel, owner of Gujarat Angadiya Service Company, statement dated 11.10.2014 of elder brother of applicant Jafar Mohammed Hasanfatta, statement dated 18.10.2014 of manger Samir Jikar Godil of Nile Industries Pvt. Ltd. if are considered they do not know any one of accused persons. Another witness Jatinbhai Shah has never met with Madanlal Jain or the respondent. If we consider the statement of Ashvinbhai Haribhai Patel, he does not know the present respondent, Narendra Jain and Madanlal Jain and he had not received any payment from Angadiya Firm. Shri Harshadbhai Modi, cheque discounter Page 35 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 does not know the present respondent, Bilal Gilani and Madanlal Jain etc. Another witness - Amrutbhai Patel, owner of Gujarat Angadiya Service does not know Madanlal Jain, respondent and Bilal Gilani, and others and these witnesses have refused to identify the accused persons. There is no criminal ingredients of monetary transactions, hawala transaction, forging documents, inducing dishonestly, cheating, etc. are found against respondent. As per the statement of Jafar Mohammed Hasanfatta, present respondent is his real brother and he learnt through the officers of E.D. that his brother was involved in this offence. He submits that his brother had given Rs.3 Crores by R.T.G.S. for business purposes from which he had purchased shares. He has no other information in respect of ownership of Natural Trading Company and what business was undertaken. He does not know the directors or employees of Natural Trading Company as he was not in contact with them. In February-2014, he had obtained an unsecured loan of Rs.1,15,00,000/-. This amount was transferred in the account of his wife Fozia Samir Godil, Union Bank of India from H.D.F.C. Bank, Ghoddod Road branch of Nile Trading Corporation. This amount was borrowed by him from the Page 36 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 respondent for the business of share market. After borrowing loan from respondent, he had paid back Rs.91 lakhs in March- 2014 towards this loan and had deposited this amount in accounts of two different persons as instructed by respondent and he had transferred such amount from the account of his wife Fozia by RTGS. He has holding account in Union Bank of India, Nanpura Branch. Angadiya or cheque discounter who had obtained huge amounts in cash and which they had forwarded to others, they have also not stated that any transaction with respondent had taken place. Representatives of S.Babulal and Company and P. Umeshchandra have not stated in their statements that they had undertaken any transaction with respondent. It is an admitted fact that the name of the respondent was not incorporated in the complaint when it was filed. Even in the first chargesheet also, name of the respondent was not found, but he was shown as suspect wherein in the second supplementary chargesheet, respondent was shown as accused and he was arrested on the basis of Prafullbhai Patel. Later on, DCB Crime had made Prafullbhai Patel as an accused and had presented a chargesheet against him and therefore also, Prafullbhai Patel has become an accused. Page 37 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 Hence, he does not remain as witness against this accused. None of other witnesses have stated in their statements that respondent had committed cheating, forgery, prepared false accounts, or hatched a conspiracy, by sending money abroad on the basis of bogus bills or the respondent had undertaken transactions in cash or had made arrangements for money for bogus bill of entries. There is not any oral or documentary evidence to show that respondent had prepared bogus bill of entries or had given instructions to bank or person to send such amount against such bills. There is no sufficient evidence to proceed trial against respondent and there is not case of the prosecution that the respondent had opened bogus bank account in collusion with the bank officer or he had made arrangements for cash through angadiya or cheque discounter or had undertaken transactions. None of the employee of angadiya firm have stated in their statements, that respondent had given cash in angadiya firm or had withdrawn cash. Further, none of the bank officer have stated that respondent had come in the bank to open bogus account in their bank or had recommended somebody or had undertaken transactions with anybody. Further, it appears that cheque discounter, Harshadbhai Modi has also not Page 38 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 mentioned anywhere in his statement that respondent had given him cash or had undertaken any transaction with him. All the witnesses do not know the respondent. There is no case of the prosecution that the respondent had deposited cash in bank or had paid commission to the financers and had opened bogus accounts or had done cheating with the government. Prima facie there is no evidence against respondent that he was involved in forgery. There is no evience that the respondent was sending undeclared income wrongfully, abroad. There is nothing on record to show that the respondent is receiving money from anybody in cash and was sending it abroad by hawala and was earning commission on it. There is nothing on record that the respondent had obtained commission by hawala scam. There is no any basis or reason for which criminal proceedings may be undertaken against respondent. The prosecution has failed to establish the link of financial transactions with the respondent such that after accepting money from the sender, Prafullbhai Patel had sent them through Angadiya firm, and prosecution has failed to establish such facts.
13. The Hon'ble Supreme Court in the case of Dilawar Balu Kurane Vs. State of Maharashtra (supra), has observed in Page 39 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 Paragraph-12 as under:
"In exercising powers under Section 227 Cr.P.C., the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him gave rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 Cr.P.C., the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has no consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
14. This Court has perused the record and has agreed with the above views expressed by the Trial Court and therefore, of the opinion that no grave suspicion against the respondent is found. In fact, the prosecution has not been able to throw any suspicion and therefore, hold that no prima facie case was made out against the respondent. This Court does not find any merit in the present Criminal Revision Application and Page 40 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 accordingly, it is dismissed. Notice is discharged.
(B.N. KARIA, J) CAV ORDER IN CR.M.A.-1/2022
1. By preferring this application, following prayer was made by the present applicant:
"(A) YOUR LORDSHIPS may be pleased to allow this application;
(B) YOUR LORDSHIPS may be pleased to defer the hearing of Criminal Revision Application No.536 of 2021 until the Note filed by the applicant in Special Criminal Application No.7063 of 2020 is heard, in the interest of justice;
IN THE ALTERNATIVE (C) YOUR LORDSHIPS may be pleased to implead the applicant as party respondent no.2 in Cri.Rev. Appl.
No.536 of 2021, in the interest of justice;
IN THE ALTERNATIVE (D) YOUR LORDSHIPS may be pleased to refer the captioned matter to Hon'ble the Chief Justice for passing appropriate orders for hearing Criminal Revision Application No.536 of 2021 along with Special Criminal Application No.7063 of 2020 by appropriate bench of of this Hon'ble Court to secure the ends of justice. (E) YOUR LORDSHIPS be pleased to grant such order and further relief, as may be deemed fit by this Hon'ble Court, in the interest of justice;
2. Heard Mr.Shalin Mehta, learned Senior Advocate Page 41 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 appearing with Mr.Manan Shah, learned advocate for the applicant, Mr.Mitesh Amin, learned Public Prosecutor appearing with Mr.Hardik Soni, learned APP for the respondent no.1-State and Mr.Vikram Chaudhary, learned Senior Advocate appearing with Mr.Chetan K. Pandya, learned advocate for the respondent no.2.
3. Short facts of the present case may be summarized as under:
An FIR bearing C.R.No.I-16/2014 was registered on 11.04.2014 with DCB Police Station, Surat against one M/s.RA Distributors and its Directors on the basis of the complaint of M/s. ICICI Bank, Surat. As per the contents of the FIR, M/s. RA Distributors by claiming to be importers of rough diamonds opened accounts with the Surat Branch of ICICI Bank. Thereafter, by producing bogus bills of entries sent out foreign exchange and therefore, an FIR under Sections 420 and 465 and other sections came to be registered. On 18.07.2014, the Enforcement Directorate filed a complaint under Section 45 of the Prevention of Money Laundering Act, wherein opponent no.2 as well as the applicant were arraigned as accused. The statement of Page 42 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 the applicant under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C."
for short) was recorded on 01.08.2014 by the police and he stated about the involvement of respondent no.2, Madanlal Manikchand Jain and Amit @ Bilal Haroon Gilani in the alleged conspiracy. He further stated that at the instance of the respondent no.2, he would request financiers known to him to take cash and deposit the same into accounts nominated by the respondent no.2. Upon completion of investigation, chargesheet was filed before the Competent Court on 18.08.2014, wherein the applicant was arraigned as a witness for the prosecution. The respondent no.2 was arrested on 20.08.2014 and in the first supplementary chargesheet filed on 30.09.2014, the police showed the said respondent no.2 as a suspect. Thereafter, the second supplementary chargesheet was filed against the respondent no.2 on 15.11.2014, wherein the applicant was shown as witness. The learned Magistrate took cognizance on the same date of the aforesaid chargesheet and issued summons to the respondent no.2. The said order was challenged by the respondent Page 43 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 no.2 before this Court by filing Criminal Revision Application No.264 of 2017, wherein this Court was pleased to quash the order of the learned Magistrate. Being aggrieved by the aforesaid judgment and order passed in Criminal Revision Application No.264 of 2017, the State preferred Criminal Appeal No.224 of 2019 before the Hon'ble Apex Court which was allowed by the judgment and order dated 05.02.2019 observing that the statement of the applicant was relevant to bring home the case of the prosecution against opponent no.2. Thereafter, the Investigating Officer on 17.02.2020 filed third supplementary chargesheet arraigning present applicant as accused alleging that the applicant is also a part of conspiracy. Cognizance of the third supplementary chargesheet was taken by the learned Magistrate on 18.02.2020. Against the said order, the applicant preferred Writ Petition (Criminal) No.147 of 2020 before the Hon'ble Supreme Court and vide order dated 16.06.2020, the said writ petition was permitted to be withdrawn with a view to work out his remedies in accordance with law. Thereafter, the present applicant filed Special Criminal Application No.7063 of 2020 Page 44 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 before this Court challenging the third supplementary chargesheet dated 17.02.2020 as well as the order dated 18.02.2020 passed by the Special Court of the learned Principal Sessions Judge, Ahmedabad (Rural) at Mirzapur in Special Sessions Case No.80 of 2020, wherein interim relief in terms of Paragraph-7(c) was granted by this Court.
4. Learned advocate for the applicant submits that though there is ample evidence against the opponent no.2, findings made by the Hon'ble Supreme Court, opponent no.2 filed discharge application before the Sessions Court on 01.12.2020 and vide order dated 16.04.2021, discharge application preferred by the opponent no.2 was allowed mainly on the ground that the applicant is now arraigned as accused by way of 3rd supplementary chargesheet. It is further submitted that being aggrieved by the order dated 16.04.2021 passed by the learned Sessions Judge discharging opponent no.2, the State has filed Criminal Revision Application No.536 of 2021 before this Court. It is further submitted that a Note was filed by the applicant before the Registry of this Court on 24.11.2021 to tag Special Criminal Application No.7063 of 2020 with Criminal Revision Application No.536 of 2021 and Page 45 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 both the matter be heard by the same Bench. It is further submitted that in case the Criminal Revision Application No.536 of 2021 is proceeded and heard prior to Special Criminal Application No.7063 of 2020 which challenges the 3 rd supplementary chargesheet and order of taking cognizance, the applicant will suffer great prejudice and injustice. It is further submitted that Special Criminal Application No.7063 of 2020 filed by the applicant has great bearing on the adjudication of the present matter. It is further submitted that the applicant is a star witness against the opponent no.2 who is wrongly discharged by the Sessions Court and the applicant is wrongly arraigned as accused by filing third supplementary chargesheet. It is further submitted that any order that may be passed in Criminal Revision Application, would have direct bearing to the applicant and therefore, the applicant is affected party and it is requested to implead the pesent applicant as party respondent in the said proceedings and/or to defer the hearing of Criminal Revision Application No.536 of 2021 until the Note filed by the applicant in Special Criminal Application No.7063 of 2020 is heard in the interest of justice. Learned Senior Advocate appearing for the applicant has withdrawn the prayer made in Paragraph-9(D). Page 46 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022
5. Learned Public Prosecutor for the respondent no.1-State has no objection if the prayer made by the present applicant would be allowed by this Court.
6. Learned advocate for the respondent no.2 has strongly objected the submissions made by learned advocate for the applicant and submitted that the subject matter of Criminal Revision Application No.536 of 2021 and subject matter of Special Criminal Application No.7063 of 2020 are quite different. It is further submitted that Criminal Revision Application No.536 of 2021 is preferred by the respondent - State against the order of discharge passed by the learned Sessions Judge, Ahmedabad (Rural). It is further submitted that the present applicant is not a witness of the prosecution as third supplementary chargesheet was filed on 17.02.2020. That the order dated 17.02.2020 as well as the order dated 18.02.2020 passed by the Special Court of the learned Principal Sessions Judge, Ahmedabad (Rural) at Mirzapur, in Special Sessions Case No.80 of 2020 is challenged by the present applicant by way of Special Criminal Application No.7063 of 2020 before this Court. It is further submitted that the presence of the present applicant is not at all necessary to Page 47 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 decide Criminal Revision Application No.536 of 2021 nor the matter can be deferred until the Note filed by the applicant in Special Criminal Application No.7063 of 2020 is heard. Hence, it is requested by learned advocate for the respondent no.2 to dismiss this application.
7. Having heard learned advocates for the respective parties as well as learned Public Prosecutor for the respondent - State and perused the record, respondent no.1 has filed Criminal Revision Application No.536 of 2021 challenging the order dated 16.04.2021 passed under Exh.56 by the learned Principal District and Sessions Judge, Ahmedabad (Rural) in Sessions Case No.181 of 2017. By way of the impugned order dated 16.04.2021, the respondent no.2 was discharged from the charges levelled against him. While the present applicant has preferred Special Criminal Application No.7063 of 2020 against the filing of third supplementary chargesheet on 17.02.2020 alleging that the applicant is also a part of conspiracy. It appears that in the aforesaid Special Criminal Application No.7063 of 2020, ad interim relief in terms of Para-7(c) was granted by this Court on 03.12.2020. Further, it appears that earlier the same order was challenged by the present applicant before the Hon'ble Apex Court by filing Writ Page 48 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 Petition (Criminal) No.147 of 2020, wherein the Hon'ble Apex Court vide order dated 16.06.2020 was pleased to permit the present applicant for withdrawal of the said SLP with view to work out his remedies in accordance with law. Further, it appears that after starting hearing of Criminal Revision Application No.536 of 2021, the present Criminal Misc. Application No.1 of 2022 in Criminal Revision Application No.536 of 2021 was filed by the present applicant on 26.03.2022. Subject matter of both the Criminal Revision Application No.536 of 2021 as well as Special Criminal Application No.7063 of 2020 are quite different. The respondent no.2 is discharged from the charges levelled against him by the learned Sessions Court while the present applicant who was earlier witness of the prosecution was arraigned as accused by filing third supplementary chargesheet on 17.02.2020 which is challenged by him by way of filing Special Criminal Application No.7063 of 2020. Further, it also appears that a Note dated 24.11.2021 was made by the present applicant to the Registry with a request that both the matters are tagged together and be heard by the same Court/Single Bench. This Court has also called the record of Special Criminal Application No.7063 of 2020 and Page 49 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022 R/CR.RA/536/2021 CAV JUDGMENT DATED: 24/05/2022 has found that Note dated 24.11.2021 was not entertained by the office of the Registry vide order dated 01.12.2021 which is not disclosed by the present applicant before this Court. As the subject matter of both the Special Criminal Application No.7063 of 2020 and Criminal Revision Application No.536 of 2021 are quite different. The presence of the present applicant would not require to implead him as party respondent in Criminal Revision Application No.536 of 2021 nor would be necessary to defer the hearing of Criminal Revision Application No.536 of 2021 as prayed for by the present applicant as the present application was filed at very later stage after starting final hearing of Criminal Revision Application No.536 of 2021. Hence, there is no merits in the present application and it is ordered to be dismissed.
(B.N. KARIA, J) rakesh/ Page 50 of 50 Downloaded on : Wed May 25 20:36:08 IST 2022