Bombay High Court
Santosh Vasant Patil vs State Of Maharashtra on 10 July, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:27431-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.722 OF 2023
Santosh Vasant Patil .... Appellant
Versus
The State of Maharashtra .... Respondent
.....
Mr.Anand S. Patil, Advocate for the Appellant.
Dr.A.A. Takalkar, APP for Respondent - State.
.....
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 10th JULY 2024.
P.C. :
1 The present Appeal is fled being aggrieved by the
order dated 20th January, 2023, passed by the Additional Sessions Judge, Kolhapur, on an application fled by the applicant, who had arraigned as an accused no.4 in Sessions Case No.80 of 2020, seeking his discharge.
The impugned order has taken into account the accusations faced by the present appellant in the chargesheet, and reference is made to the statement of one Ananda Patil, Pandurang Lavate and Narayan Patil, who had categorically stated in their statements recorded under Section 161 of Cr.P.C. that at the meeting scheduled at Woodland Hotel, Kolhapur as Rajeshri Aher ::: Uploaded on - 12/07/2024 ::: Downloaded on - 21/07/2024 09:10:38 ::: 2/7 24 apeal 722 of 2023.doc well as Hotel Shalini Palace, Kolhapur, the Chairman, the Director and the Cashier Ratan Patil and Santosh Patil were present and they had given information about the project, and induced people to invest in the same by promising that, after completion of the construction work, the amount would be returned to them.
The statement of one Pandurang Dattu Patil is categorically referred to by the learned Judge and even we have perused the statement recorded on 13th April, 2020, and we compiled it in the chargesheet. He categorically stated that on being informed that the company is calling for investments and a seminar for that purpose is to be held in Woodland Hotel, Kolhapur, and on being supplied to the information, the company is entering into a business of construction, and for that purpose, it contemplate collection of funds, and upon the project being completed, the money would be returned back, by accepting the statement and believing the version of the agents, sub-agents as well as the Chairman, Director, Pandurang Dattu Patil alongwith his friends named in his statement agreed to invest the money. He has categorically stated that the Director in the year 2013 started a company by name, "Success Developers", which has its offce located in Amatya Tower, Kolhapur. According to him, for the purpose of instilling confdence, Shamrao Salvi and Sanotsh Patil, the present appellants, had taken them and showed them a plot in which the money is going to be invested, and this prompted the investor alongwith six other persons to invest an amount of Rs.10,81,000/-.
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A categorical statement is made by this witness that Santosh Vasant Patil and Ratan Balaso Patil were working in the offce, and he came to know that since his classmate Shripati Ganpati Patil was also working on part time basis in the said offce. According to him, the amount was deposited in cash in the offce at Kolhapur, and, some certifcate was also issued by Shamrao Ishwar Salvi. However, since there was no return, similarly situated persons approached the Authorities to know that there are several persons who have been duped of their investment.
2 The chargesheet has thus attributed a role to the appellant and though the learned counsel would stressfully submit that he was not a cashier with the company with whom the money was invested, it is not disputed that he was in employment of the sister concern, and from the statements of the witnesses complied in the chargesheet, he worked in coordination with the members of the fnancial institution which inducing people to invest money into the project, on being promised assured returns.
3 As far as the application for discharge and the power to be exercised under Section 227 of Cr.P.C. is concerned, the Court should refrain itself from making a roving inquiry into the pros and cons of the evidence, that is compiled in the chargesheet and rather consider the broad probabilities, and the total effect of the material before it, despite the fact that it may not conclusively establish the guilt of the accused at this stage.
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The principle involved, as has been categorically set out by the Apex Court in case of M.E. Shivlingamurthy V/s. Central Bureau of Investigation, Bengaluru1, has culled out the legal principles applicable in regard to an application seeking discharge, in the following words:
" 17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions, viz., P. Vijayan v. State of Kerala and discern the following principles:
17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accused.
17.2. The Trial Judge is not a mere Post Offce to frame the charge at the instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to fnd out whether or not there is suffcient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no suffcient ground for proceeding with the trial".
17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.
17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infrmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.
1 (2020) 2 SCC 768
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17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.
17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.
18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 Cr.PC (See State of J & K v. Sudershan Chakkar and another). The expression, "the record of the case", used in Section 227 of the Cr.PC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the Police."
4 The learned counsel relies on the decision of the Apex Court in the case of Union of India Vs. Prafulla Kumar Samal and Anr.2, and also decision of the Apex Court in the case of State of Orissa V/s. Debendra Nath Padhi 3, as regards the power to be exercised in discharging an accused.
When we have considered the decision in the case of Debendra Nath Padhi (Supra), it is on a specifc point as to whether the accused at this stage of framing of charge can seek production of any documents to prove his innocence, and interpreting the word, "the record of the case", as used in Section 227 of Cr.P.C., it is held that the documents submitted therein, as postulated in Section 227 of Cr.P.C., relate to the case and the documents referred in Section 209 of Cr.P.C.
2 AIR 1979 SC 366
3 (2005) 1 SCC 568
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In any case, on reading of the aforesaid authoritative pronouncement, the parameters that have been laid down in exercising the power under Section 227 of Cr.P.C. remain undisturbed, being the power is merely restricted to evaluate the material and documents on record, with a view to fnd out, if the facts emerging therefrom, taken at its face value, disclose the ingredients constituting the offence and in order to fnd out whether or not there is suffcient ground for proceeding against the accused.
Defnitely, in our opinion, since the chargesheet compile of material pin-pointing towards the prima facie involvement of the appellant in the whole episode, when money was collected from the people by way of investment, but there was no return, as assured, he defnitely must face the trial, and if the material collated is not proved through cogent evidence, he may be entitled for an acquittal.
5 We are satisfed that this is not the stage at which the appellant shall be exonerated, as it is not open to look into his defense.
What he seeks is discharge, which is not permissible on perusal of the material compilation in the chargesheet and therefore we refrain to exercise the power of discharge conferred upon us, and fnding no legal infrmity in the impugned order passed, by upholding the same, the Appeal is dismissed.
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Needless to state that the observations above are restricted for the purpose of discharge and shall in no way influence the Judge, when the accused is tried for the charge.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.) Rajeshri Aher ::: Uploaded on - 12/07/2024 ::: Downloaded on - 21/07/2024 09:10:38 :::