Bombay High Court
Cricket Club Of India Ltd Through Its ... vs Nimai Vijaykumar Agarwal And Ors on 21 November, 2025
Author: R.N. Laddha
Bench: R.N. Laddha
2025:BHC-AS:50567
sg 901.wp4213-18&ors.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Criminal Writ Petition No.4213 of 2018
Cricket Club of India Ltd.
A Company Registered under the provision
of Companies Act, 2013
Through Its Secretary Nand Kumar Jha
Secretary - Cricket Club of India Ltd
Age Adult, Occu - Service
Office address - Stadium House,
Block - 3, 1st Floor,
Veer Nariman Road,
Churchgate, Mumbai - 400 020. ... Petitioner
versus
1. Rakesh Kantilal Shah
Age Adult, Occu -
R/o.:17, Jayant Mahal,
B Wing, 1st Floor,
D-Road, Churchgate,
Mumbai - 400 020.
2. Vinitkumar Jagdishprasad Kedia
Age Adult, Occu -
R/o.: Rachana Iron & Steel Pvt.,
83-A Wing, Mittal Tower -A,
8th Floor, Mumbai - 400 020.
3. Kishan Dharaprasad Poddar
Age Adult, Occu -
R/o.: 62-A Peddar Road,
85-Mount Unique,
Mumbai - 400 026.
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4. Ketan Anandilal Shah
Age Adult, Occu -
R/o.: 1402 - A Chandanbala Apt,
14th Floor, 4 RR Thakar Marg,
Malabar Hill, Mumbai - 400 006.
5. The Senior Inspector of Police
Economic Offences Wing,
GC- Unit 1
EOW CR No.49 of 2013
6. The State of Maharashtra ... Respondents
With
Criminal Writ Petition No.4214 of 2018
Cricket Club of India Ltd.
A Company Registered under the provision
of Companies Act, 2013
Through Its Secretary Nand Kumar Jha
Secretary - Cricket Club of India Ltd
Age Adult, Occu - Service
Office address - Stadium House,
Block - 3, 1st Floor,
Veer Nariman Road,
Churchgate, Mumbai - 400 020. ... Petitioner
versus
1. Bharatkumar Bhupendra Ladhani
Age Adult, Occu -
R/o.: Veloncia Tower C-Wing,
Mittal Tower - A, 8th Floor,
Mumbai - 400020
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2. Hemal Anilkumar Shah
Age Adult, Occu -
R/o.: 89, Avanti Building, 3rd Floor,
Flat No.1, G-Road,
Marine Drive, Mumbai.
3. Subodh Popatlal Shah
Age Adult, Occu -
R/o.: 18/7 Sankalp Building,
Walkeshwar, Mumbai - 400006.
4. Amit Mafatlal Shah
Age Adult, Occu -
R/o.: 18 Sankalp Building,
7th Floor, Walkeshwar,
Mumbai - 400006.
5. Anuj Jitendra Mehta
Age Adult, Occu -
R/o.: 2601 Shivtapi Building,
HG Marg,
Next to Sharda High School,
Gamdevi, Mumbai 400007
6. The Senior Inspector of Police
Economic Offences Wing,
General Cheating Unit - 1
EOW CR No.49 of 2013
7. The State of Maharashtra ... Respondents
With
Criminal Writ Petition No.4215 of 2018
Cricket Club of India Ltd.
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A Company Registered under the provision
of Companies Act, 2013
Through Its Secretary Nandakumar Jha
Secretary - Cricket Club of India Ltd
Age Adult, Occu - Service
Office address - Stadium House,
Block - 3, 1st Floor,
Veer Nariman Road,
Churchgate, Mumbai - 400 020. ... Petitioner
versus
1. Ketan Thacker
Age Adult, Occu -
R/o.: Thacker brothers,
18 - Bhaveshwar Vihar,
383, SVP Road, Mumbai
2. The Senior Inspector of Police
Economic Offences Wing,
General Cheating Unit - 1
EOW CR No.49 of 2013
3. The State of Maharashtra ... Respondents
With
Criminal Writ Petition No.4216 of 2018
Cricket Club of India Ltd.
A Company Registered under the provision
of Companies Act, 2013
Through Its Secretary Nandakumar Jha
Secretary - Cricket Club of India Ltd
Age Adult, Occu - Service
Office address - Stadium House,
Block - 3, 1st Floor,
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Veer Nariman Road,
Churchgate, Mumbai - 400 020. ... Petitioner
versus
1. Nimai Vijaykumar Agarwal
Age Adult, Occu - Service
R/o.: Agarwal Chemical Agencies,
62 Wadia Building,
3rd Floor, 9/B Cawasji Patel Street,
Fort, Mumbai - 400001.
2. The Senior Inspector of Police
Economic Offences Wing,
General Cheating Unit - 1
EOW CR No.49 of 2013
3. The State of Maharashtra ... Respondents
----
Mr Rizwan Merchant, along with Ms Khyati Shah, Ms Dipti
Karadkar and Mr Mohd Adnan Shemle, i/b. Rizwan Merchant
& Associates, for the petitioner in writ petitions
No.4213/2018, 4214/2018 4215/2018 and 4216/2018.
Mr Mihir Gheewala, a/w. Mr Farhad Panthaki, for respondents
No. 1 to 4 in WP/4213/ 2018.
Mr Pranav Badheka, Senior Counsel, a/w. Mr Prashant Pawar,
Mr Tushar Garewal and Mr Sunad Kharde, for respondents
No.1 to 5 in WP/4214/2018.
Mr Pranav Badheka, Senior Counsel, a/w. Mr Prashant Pawar,
Mr Tushar Garewal and Mr Sunad Kharde, for respondent
No.1 in WP/4215/2018 and WP/4216/2018.
Mr BB Kulkarni, APP, for the respondent/State in all WPs.
API Suvarna Raut, EOW, Mumbai, is present.
----
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Coram: R.N. Laddha, J.
Date: 21 November 2025 P.C.:
Heard Mr Rizwan Merchant, the learned Counsel appearing on behalf of the petitioner, Mr Pranav Badheka, the learned Senior Counsel, and Mr Mihir Gheewala, the learned Counsel, appearing for the contesting respondents, and Mr BB Kulkarni, the learned Additional Public Prosecutor representing the respondent/ State.
2. These writ petitions have been filed under Article 227 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure, 1973 ('CrPC'), assailing the legality and propriety of the orders dated 30 November 2017 passed by the learned Metropolitan Magistrate, 47th Court, Esplanade, Mumbai, in CC No.727/PW/2013 (as merged with CC No.67/PW/2014 and 380/PW/2014). By the said impugned orders, accused Nos.3 to 13 (hereinafter referred to as 'the respondents') have been discharged from the offences punishable under Sections 419, 420, 463, 465, 467, 468, 471, and 120B of the Indian Penal Code ('IPC'), and Section 65 of the Information Technology Act, 2000 ('IT Act'). Since all these petitions involve common questions of law as well as fact, they are being disposed of by this common order with the consent of the learned Counsel appearing for the respective parties.
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3. The prosecution alleges that between April 2012 and September 2012, the respondents, in collusion with accused Nos.1 and 2, entered into a criminal conspiracy and, in furtherance thereof, they are alleged to have carried out unauthorised and unlawful alterations in the computer system of the Cricket Club of India (hereinafter referred to as 'the petitioner club') during the course of data migration from the erstwhile software to a newly introduced system. It is alleged that the accused persons fraudulently manipulated the database of the petitioner club, procured membership cards by misappropriating membership numbers pertaining to deceased members or unused blank entries, tampered with source documents stored in the computer system, and fabricated false electronic records. The prosecution contends that such acts constitute offences under Sections 120B, 463, 465, 467, 471, and 420 of the IPC, and Section 65 of the IT Act. It is further alleged that, pursuant to the said conspiracy, the accused forged electronic records and membership cards purporting to be valuable securities conferring access rights to the petitioner club, dishonestly used the said forged records as genuine, and thereby caused wrongful loss to the petitioner club.
4. The learned Counsel appearing for the petitioner submits that, notwithstanding the availability of a revisional remedy Page 7 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx under Sections 397 and 401 of the CrPC, the present writ petition is maintainable, as the impugned orders are vitiated by patent illegality and warrant interference in exercise of this Court's writ jurisdiction. According to the learned Counsel, the impugned orders of discharge have been passed in complete disregard of well-settled principles governing the consideration of discharge applications. It is urged that the learned Magistrate failed to evaluate the material placed on record and ignored relevant facts germane to the decision. The learned Counsel contends that the writ jurisdiction of this Court is firmly recognised in cases where the impugned orders are perverse, arbitrary, or demonstrative of non-application of judicial mind.
5. The learned Counsel further submits that the learned Magistrate committed a manifest error in discharging the respondents despite the existence of sufficient prima facie material establishing the necessary ingredients of the offences alleged. It is asserted that the learned Magistrate misdirected himself by scrutinising the evidence as if adjudicating upon the merits at trial, instead of applying the limited threshold test prescribed at the stage of framing of charge or considering discharge. It is further submitted that undue emphasis was placed on the fact that the respondent accused No.12 had lodged FIR No.121 of 2013 against accused No.2, Sandip Jain.
Page 8 of 31__________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx A bare perusal of the said FIR, it is argued, reveals that it was a calculated legal stratagem devised to shield the accused persons from the consequences of criminal prosecution initiated by the petitioner club. It is further pointed out that several of the accused persons had, at various times, submitted documents to the petitioner club claiming membership exceeding ten years, only to secure eligibility for the grant of membership to their children, thereby demonstrating their complicity and knowledge of the fraudulent acts.
6. The learned Counsel further submits that, in April 2012, accused No.2, Sandip Jain, a life member of the petitioner club, approached accused No.1, Khalid Kazi, and proposed to him the issuance of forged and bogus membership cards in favour of the respondents. Accused No.1 agreed to the said proposal and identified blank or expired membership numbers in the membership register. He thereafter provided eleven blank membership application forms to be filled in and submitted by the respondents. Upon receipt of the forms, accused No.1 made fraudulent entries into the petitioner club's membership database. During the inquiry initiated by the petitioner club into the legitimacy of these memberships, accused No.1 addressed a letter dated 8 April 2013, wherein he expressly admitted to having accepted monetary consideration for each Page 9 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx fraudulent entry and confirmed that the respondents had approached him through accused No.2. This admission is corroborated by the bank statements of accused No.1, which reveal that a sum of Rs.28,75,000/- was credited to his Axis Bank account on 23 January 2013, out of which Rs.25,00,000/- was transferred to his wife's account. It is submitted that the accused respondents were fully aware that their purported memberships were fraudulent, illegal, and obtained through deceitful means.
.
7. It is further submitted that the learned Magistrate has erroneously passed the order of discharge under Section 240 CrPC, which provision pertains to the framing of charges, rather than under Section 239 CrPC, which alone empowers a Magistrate to discharge an accused in appropriate circumstances. It is a matter of record that the learned Magistrate discharged the accused respondents under Section 240 CrPC, thereby rendering the impugned orders legally unsustainable, as the power of discharge emanates solely from Section 239 CrPC. The learned Counsel argues that unless the correct statutory provision is invoked, the corresponding judicial power cannot validly be exercised. It is submitted that the trial Court failed to appreciate the evidence and material in their proper perspective and proceeded mechanically in Page 10 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx discharging the respondents. The learned Counsel additionally complains that the learned Public Prosecutor did not raise any objection to the discharge of the accused. The petitioner club became aware of the impugned orders only in August 2018, whereupon it obtained legal advice and a certified copy of the orders before approaching this Court.
.
8. On the other hand, at the outset, the learned Counsel appearing on behalf of the contesting respondents jointly submitted that the present writ petitions are not maintainable in view of the availability of an efficacious statutory remedy by way of criminal revision under Sections 397 and 401 of the CrPC. It is contended that the impugned orders of discharge are amenable to revisional jurisdiction and the petitioner ought to have availed of the said remedy. It is further urged that where a specific statutory remedy is provided, the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution is ordinarily not invoked, save in exceptional circumstances. However, in the present case, no such exceptional grounds, such as patent illegality, jurisdictional error, perversity, or manifest injustice, have either been pleaded or demonstrated. On this ground alone, it is submitted that the writ petitions deserve to be dismissed in limine. Additionally, it is pointed out that the petitions suffer from an unexplained Page 11 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx delay of 206 days, with the petitioner offering only vague and unsubstantiated assertions regarding the alleged knowledge of the impugned orders in August 2018. No specific details, explanation, or material have been furnished to establish how or from whom such knowledge was acquired. It was thus contended that the present petitions have been filed in a bid to circumvent the bar of limitation and to avoid invoking the appropriate revisional remedy under Section 397 CrPC. .
9. The learned Counsel submit that the learned Magistrate rightly discharged the respondents after fully considering the record and finding no material to even prima facie suggest their involvement. The impugned orders show proper judicial application of mind and suffer from no illegality or perversity warranting interference in writ jurisdiction. The learned Magistrate's well-reasoned findings show that the essential ingredients of the alleged offence are not made out. The petitioner has shown no overlooked material or jurisdictional error. The charge sheet contains nothing linking the respondents to any alleged conspiracy with accused No.2 regarding the issuance of membership cards. Referring to the statements of witnesses Yogita Kothakar, Krishna Parab, Nand Kumar Jha, Patricia Melvin Pereira, and Prashant Gamare, they point out that none of them make any allegation against the Page 12 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx respondents.
.
10. The learned Counsel further submit that accused No.1, Khalid Kazi, has expressly admitted that none of the respondents were known to him, which materially supports the contention that the respondents are victims of the fraud allegedly perpetrated by accused No.2, Sandip Jain, in collusion with accused No.1. The findings of the investigation, together with the confession of accused No.1, clearly indicate that no offence of criminal conspiracy or cheating, punishable under Sections 120B and 420 of the IPC, can be said to have been committed by the respondents; rather, they appear to be victims of the fraudulent acts of accused Nos.1 and 2.
11. It is submitted that accused No.1, Khalid Kazi, made a written confession addressed to the Secretary of the petitioner club. The prosecution seeks to rely upon this confession, inter alia, to implicate the respondents herein. However, the three pages constituting the handwritten confession contain nothing incriminating against the respondents; accused No.1 neither names them nor attributes any role to them and unequivocally states that he had no acquaintance with them. Curiously, a fourth page is purportedly annexed as part of the said confession. This page contains a typed list of names with two additional names inserted in handwriting, followed by the Page 13 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx alleged signature of accused No.1. There is no reference to this fourth page in the body of the confession, and prima facie, it appears to have been appended subsequently. Significantly, this fourth page was not forwarded to the Additional Chief State Examiner of Documents, Mumbai, for forensic examination, thereby further casting doubt on its authenticity and supporting the contention that it does not form part of the original confession of accused No.1.
12. Placing reliance on the judgment of the Hon'ble Supreme Court in Kala vs. State through Inspector of Police 1, the learned Counsel submit that extra-judicial confessions are inherently weak evidence and must be scrutinised with great care. Such a confession cannot be accepted when surrounded by suspicious circumstances. Accordingly, the purported confessional statement of accused No.1 cannot be relied upon by the prosecution to establish any conspiracy involving the respondents with accused Nos.1 and 2.
13. It is further submitted that the alleged written confession was addressed to one Nand Kumar Jha, who subsequently played a role in the registration of the FIR against accused No.1 and others. Although the confession is dated 8 April 2013, the FIR at Marine Drive Police Station was filed only on 7 June 1 (2016) 9 SCC 337 Page 14 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx 2013, i.e., nearly two months later. This delay further magnifies the suspicion surrounding the fourth page and strengthens the inference that the said page was introduced at a time subsequent to 8 April 2013.
.
14. It is submitted that the confession letter dated 8 April 2013, executed by accused No.1, Khalid, and addressed to the petitioner club, unequivocally establishes that accused No.1 had accepted the proposal extended by accused No.2, Sandip Jain, owing to his prevailing financial distress. It is pertinent to note that, even as per the case of the prosecution, accused No.1 had handed over eleven membership application forms to accused No.2, who subsequently returned the said forms duly filled. Thereafter, accused No.1 undertook the task of entering the requisite data into the computer system at the petitioner club's office, scanned the completed forms, and proceeded to generate the membership identity cards by inserting the names, membership numbers, and photographs into the designated software. The said identity cards were thereafter printed and, admittedly, issued by the petitioner club, bearing the signatures of its Secretary. In view of the foregoing admitted facts, it is contended that the allegation of impersonation on the part of the respondents is wholly unfounded and devoid of merit. .
15. The learned Counsel further contend that accused No.1, Page 15 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx in collusion with accused No.2, fabricated membership records pertaining to eleven individuals. These records included documents such as membership detail forms, ballot letters, approvals from the Balloting Committee, and election letters, all prepared with the intent to falsely portray the respondents as bona fide members of the petitioner club. This was allegedly done to mislead the petitioner club's staff into believing that the respondents had legitimately acquired membership, thereby enabling them to access the facilities, services, and privileges reserved exclusively for genuine members of the club.
16. It is further submitted that the findings of the investigation, coupled with the confession of accused No.1, unequivocally establish that the respondents have not committed any offence under Sections 120B and 420 of the IPC. On the contrary, they are victims of the fraudulent acts orchestrated by accused Nos.1 and 2. The learned Counsel assert that the record is devoid of any material indicating the involvement of the respondents in the alleged criminal conspiracy or cheating, nor is there any evidence to suggest that they acted in concert with accused Nos.1 and 2. The charge sheet does not attribute any overt or covert act, nor assign any specific role, to the respondents in connection with the alleged offences.
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17. It is further submitted that the charge sheet itself reveals that, around April 2012, accused No.2 approached respondent Vinit Kedia and falsely represented himself as a member of the petitioner club with close connections to its committee members. He assured the respondents that he could procure the petitioner club's membership through his influence and the assistance of club officials. Accused No.2 further informed that an amount of approximately Rs.22,00,000/- per person would be required to be paid via cheque or demand draft, as and when directed by the petitioner club authorities. Additionally, he stated that a certain sum in cash would be needed in advance for processing the membership cards, to be paid to the petitioner club upon receipt of the cards by the respondents. Relying upon these representations in good faith, the respondents parted with the cash amounts and handed them over to accused No.2. The learned Counsel submit that this sequence of events clearly demonstrates the absence of any nexus between accused Nos.1 and 2 and the respondents in the commission of the alleged offences. The bank records of accused No.1 further disclose that a sum of Rs.28,75,000/- was credited to his wife's account on 14 February 2013. Thus, if any offence of cheating has been committed, it is solely attributable to accused Nos.1 and 2.
.
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18. It is further submitted that the respondents were not aware, nor did they possess any information, that the membership of the petitioner club had ceased in the year 2007. They were also entirely unaware of the procedure required to obtain membership, as the internal processes of the petitioner club were not publicly disclosed. The learned Counsel further submit that the respondents neither approached nor induced the petitioner club for the grant of membership. On the contrary, as reflected in the charge sheet, it was accused No.2 who approached the respondents offering membership to the petitioner club.
19. The respondents were issued membership cards bearing their names and photographs, duly verified and signed by the Secretary of the petitioner club. They further received official communications, including emails, handouts, and car parking stickers, all of which acknowledged them as members. They were granted access to the club's facilities upon payment of the requisite charges to the petitioner club. In these circumstances, it is contended that the respondents had no reason to suspect that the said memberships were conferred without adherence to proper procedure.
20. Moreover, the respondents had no knowledge of the manner in which accused No.2 and other officials of the Page 18 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx petitioner club issued the membership cards, nor were they aware of the existence of blank entries in the membership register. They were not privy to any such internal irregularities. As per the charge sheet, the issuance of such memberships was a prevailing practice within the club. It is also pointed out that the petitioner club has failed to provide any explanation regarding the presence of blank entries in the register, and the investigating agency has not conducted any inquiry into this aspect.
21. It is therefore submitted that the petitioner club has not been defrauded by the accused respondents in any manner, and there is no allegation or evidence of impersonation or misrepresentation on their part.
.
22. It is further submitted that the respondents have neither made any false or dishonest representations nor induced the petitioner club to part with any property, as is evident from the statements of the witnesses. No property was, in fact, delivered to the respondents. They were merely permitted to utilise the facilities of the petitioner club for a limited duration, and all services availed by them under the purported membership card of the petitioner club were duly paid for by the respondents. Consequently, no pecuniary loss has been occasioned to the petitioner club. Moreover, the learned Counsel highlight that Page 19 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx guests are ordinarily permitted to access the club and avail its facilities upon payment of a nominal entry fee ranging from Rs.100/- to Rs.200/-. In such circumstances, the allegation that the respondents conspired with accused Nos.1 and 2 to defraud the petitioner club by forging membership documents is argued to be wholly untenable.
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23. The learned Counsel further submit that accused No.2, Sandip Jain, and accused No.1, Khalid Kazi, have expressly admitted to having personally procured the petitioner club's membership application forms and to having prepared all ancillary documents necessary for securing membership on behalf of the respondents. The petitioner club has additionally confirmed that the modifications effected in its computerised records were executed by accused No.1.
24. They further contend that the respondents were entirely unaware of the manner in which the said documents were fabricated or executed by accused Nos.1 and 2. The knowledge and execution of the modus operandi employed to obtain the petitioner club's membership in the names of the respondents rested solely with accused Nos.1 and 2. These accused, in concert, are alleged to have committed offences of cheating, forgery, and criminal conspiracy punishable under the IPC, as well as offences under the IT Act, thereby causing wrongful loss Page 20 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx to both the respondents and the petitioner club. .
25. The learned Counsel further submit that upon receipt of the petitioner's letter dated 15 April 2013, the respondents were informed that, during the course of the petitioner club's annual audit and verification of membership records, it was observed that essential documentation pertaining to their membership was lacking. As a result, their club membership cards were accordingly blocked. Subsequently, on 7 May 2013, the respondents, Hemal Shah, Anuj Mehta, and Amit Shah, met with the petitioner, during which they became aware that they had been systematically and surreptitiously defrauded by accused No.2, Sandip Jain. In immediate response, Anuj Mehta lodged a criminal complaint on 10 May 2013 against accused No.2 at Gamdevi Police Station, Mumbai. The said complaint was registered as FIR No.121 of 2013 under Section 420 of the IPC and was thereafter transferred to the Economic Offences Wing (EOW), Mumbai, where it was re-registered as Crime No.53 of 2013.
26. Additionally, the respondents addressed a letter dated 11 May 2013 to the Senior Inspector of Police, Marine Drive Police Station, Mumbai, informing him of the filing of the said complaint by Anuj Mehta and the registration of the FIR against accused No.2 at Gamdevi Police Station. Further, letters Page 21 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx dated 14 May 2013 and 15 May 2013 were addressed to the petitioner club, and a letter dated 20 May 2013 was submitted to the EOW, Mumbai, wherein the respondents categorically stated that they were victims of fraud committed by accused No.2, Sandip Jain.
27. Thereafter, by letters dated 14 May 2013 and 15 May 2013 addressed to the petitioner club, the respondents sought an appointment to elaborate upon the matter and to seek assistance in identifying and prosecuting the actual perpetrator, while reiterating their position as victims of the said fraudulent acts. Despite their bona fide efforts to place the true and correct facts before the petitioner club and the investigating authorities, their representations were not duly considered, and they were wrongfully and unjustly implicated as accused persons.
.
28. It is submitted that the prosecution's case rests entirely on a presumption that the respondents' possession of membership cards, allegedly obtained without entitlement, establishes their involvement in a conspiracy with accused Nos.1 and 2. Such a presumption is based solely on conjecture and surmise, and cannot constitute a valid foundation for the continuation of criminal proceedings. It is a settled principle that while registration of an FIR may be premised on suspicion, the Page 22 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx framing of charges mandates the existence of prima facie material indicative of the accused's culpability. In this context, reliance is placed on the judgment of the Hon'ble Supreme Court in Union of India vs. Prafulla Kumar Samal2, wherein it was held that if two views are equally plausible and the evidence on record, though raising suspicion, does not give rise to a grave suspicion against the accused, the Court is well within its jurisdiction to discharge the accused.
29. It is further submitted that the membership cards in question were duly and legitimately issued by the petitioner club itself, and were neither fabricated nor externally procured. The respondents received these cards directly from the petitioner club through due process. Consequently, their possession and use of the said cards cannot be construed as incriminating or unlawful. The mere fact that the respondents were inducted as members by accused No.1 is insufficient to sustain the charge of conspiracy or any other offence. Accordingly, the orders of discharge passed by the learned trial Court are well-reasoned and do not warrant interference. .
30. The learned Counsel further submit that the respondents had filed their respective applications before the learned Metropolitan Magistrate, 47th Court, Esplanade, Mumbai, 2 (1979) 3 SCC 4 Page 23 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx invoking Section 239 of the CrPC. The mention of Section 240 CrPC in paragraph 1 of the impugned orders is manifestly a typographical oversight. A plain and contextual reading of the said orders clearly indicates that they were passed within the framework of Section 239 CrPC. The learned Magistrate, having duly applied his judicial mind, exercised jurisdiction under the said provision and accordingly discharged the respondents.
31. It is further contended that, during the adjudication of the discharge applications, the learned Magistrate posed relevant and pointed queries to the Public Prosecutor, thereby evidencing a conscious and judicious application of mind as well as a thorough appraisal of the material on record. The impugned orders, therefore, cannot be characterised as mechanical or perfunctory. It is also submitted that both parties were afforded a full and fair opportunity of hearing. The mere act of the Public Prosecutor responding to the Court's queries cannot be interpreted as an indication of consent or a lack of objection to the discharge of the respondents, particularly in the absence of any express concession or waiver. The impugned orders are free from perversity, legal infirmity, or non- application of mind, and are in conformity with the settled principles of law. The discharge of the respondents was rightly Page 24 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx granted by the learned Magistrate upon due consideration of the records and in adherence to the principles of natural justice, fairness, and equity. Accordingly, the impugned orders call for no interference by this Court. The learned Counsel further submit that it is a well-established legal proposition that where a statutory authority is empowered to act under law, the mere misstatement or erroneous citation of the enabling provision does not vitiate the action, provided the exercise of power can be legitimately traced to a lawful source.
.
32. This Court has given anxious consideration to the rival submissions advanced across the Bar and perused the records, including the written notes of arguments.
.
33. An order of discharge passed by the Metropolitan Magistrate is generally amenable to revision under Sections 397 and 401 of the CrPC. Since the CrPC provides a specific statutory remedy, it is ordinarily expected that the aggrieved party invoke the revisional jurisdiction rather than file a writ petition. However, the writ jurisdiction under Articles 226 and 227 of the Constitution is not barred but is treated as exceptional. A writ petition against a discharge order is usually entertained only when there is patent illegality, jurisdictional error, or perversity in the order; revisional remedy is inadequate, ineffective, or has been wrongly refused;
Page 25 of 31__________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx interference is necessary to prevent miscarriage of justice; or the challenge is more in the nature of supervisory correction rather than a factual re-appreciation. Thus, while a revision is a proper and efficacious remedy, a writ petition is maintainable only in rare and compelling circumstances and the Court's power is exercised sparingly.
.
34. Upon a comprehensive perusal of the charge sheet and the accompanying material placed on record, it is evident that the gravamen of the prosecution's case is confined exclusively to the alleged involvement of accused Nos.1 and 2 in the fabrication of forged electronic records and the unauthorised manipulation of the computer systems of the petitioner club. The statements recorded from the officer bearers and staff members of the petitioner club do not, at any stage, impute any overt or covert role to the present respondents. There is a conspicuous absence of any material suggesting a prior agreement, meeting of minds, active participation, or even knowledge on the part of the respondents that would attract the essential ingredients of the offences punishable under Sections 120B, 420, 463, 465, 467, and 471 of IPC, or Section 65 of the IT Act. The letter dated 8 April 2013 authored by accused No.1 further fortifies this conclusion. In the said communication, accused No.1 has categorically acknowledged Page 26 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx
(i) the receipt of monetary consideration from accused No.2 owing to his personal financial distress; (ii) the independent preparation of forged and fabricated documents; and (iii) the complete absence of any interaction or acquaintance with any of the respondents. Furthermore, the charge sheet itself records that accused No.1 received eleven membership application forms from accused No.2 and that the entire process of data entry, scanning, and printing of the membership cards using the petitioner club's software was undertaken exclusively by accused No.1.
35. In light of the foregoing, the learned Magistrate has rightly concluded that the foundational elements constituting the alleged offences are not made out against the respondents.
36. Moreover, the documents placed on record, including FIR No.121 of 2013 lodged by respondent Anuj Mehta, contemporaneous correspondence addressed to the petitioner club and the investigating authorities, and the uncontroverted narrative set forth in the charge sheet, demonstrates that the respondents themselves were victims of the deception, having been induced by accused No.2 to part with substantial sums of money under the false pretext of securing legitimate membership to the petitioner club. It further appears from the record that the respondents were issued membership cards Page 27 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx bearing their respective names and photographs, duly signed by the Secretary of the petitioner club. These were accompanied by official emails, printed materials, car stickers, and unrestricted access to the petitioner club's facilities. The respondents duly paid all requisite charges to the club for the services availed. It is not disputed that the internal rules, procedures, and administrative decisions of the petitioner club were not in the public domain. Consequently, the respondents cannot be presumed to have had knowledge that the membership process had been discontinued in 2007 or that blank entries were being misappropriated. Besides, there is no material available on record to indicate that the respondents were aware of, participated in, or derived any benefit from the unauthorised alterations made to the petitioner club's computer systems. The charge sheet itself attributes the entire modus operandi to accused Nos.1 and 2. On these admitted facts, the findings of the learned Magistrate that the respondents were themselves defrauded by accused Nos.1 and 2 cannot be said to suffer from perversity or legal infirmity. Even assuming the prosecution's case at its highest, the material on record fails to establish that the respondents made any false representation to the petitioner club, induced the petitioner club to part with any property, fabricated, falsified or altered any document or electronic record or acted in connivance with accused No.1 and Page 28 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx accused No.2.
37. That apart, there is no demonstrable wrongful loss caused to the petitioner club that can be attributed to the respondents. The mere fact that the respondents accessed the club's facilities using the membership cards issued to them without any knowledge of the underlying fraud does not amount to "delivery of property" by deception, particularly when such facilities are otherwise accessible to guests upon a payment of charges. The mere possession or use of the membership cards, in the absence of mens rea or knowledge of their fraudulent origin, does not satisfy the statutory requirements of Sections 420, 463, 465, 467, or 471 of the IPC. Likewise, the offence of criminal conspiracy under Section 120B IPC cannot be inferred in the absence of any cogent material indicating a prior meeting of minds or shared design between the respondents and accused Nos.1 and 2. The learned Magistrate has, therefore, rightly held that the prosecution's case against the respondents is speculative and devoid of substance.
38. Furthermore, the petitioner's challenge to the impugned orders on the ground that it cites Section 240 instead of Section 239 CrPC is untenable. The discharge applications were filed under Section 239, and the orders clearly proceeds on the standards applicable under Section 239. The reference in the Page 29 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx opening paragraph is at best a clerical error. It is well settled that an order does not become invalid merely because of an erroneous citation of the statutory provision, provided the authority possesses the substantive power and the order can be traced to the correct source of law.
39. Additionally, it is trite law that the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, particularly in matters concerning discharge orders, is circumscribed and ought to be exercised sparingly. This Court does not function as an appellate forum to re-evaluate the sufficiency or adequacy of evidence. Unless the impugned orders are shown to suffer from manifest perversity, non- application of mind, or a jurisdictional error, which is not the case herein, the invocation of constitutional writ jurisdiction is wholly unwarranted. What the petitioner essentially seeks is a re-appreciation of the very material that has already been examined by the learned Magistrate. Such an exercise falls squarely outside the permissible scope of writ proceedings.
40. In view of the foregoing discussion and for the reasons delineated herein above, this Court finds no infirmity or illegality in the impugned orders passed by the learned Metropolitan Magistrate discharging the accused respondents herein from the proceedings and no ground is made out Page 30 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 ::: sg 901.wp4213-18&ors.docx warranting interference by this Court. Accordingly, the present writ petitions, being devoid of merit, are hereby dismissed.
(R.N. Laddha, J.) Page 31 of 31 __________________________________________________ 21 November 2025 ::: Uploaded on - 22/11/2025 ::: Downloaded on - 28/11/2025 22:11:03 :::